Property Law 1

Question 1

No adverse possession can be claimed against the following 5 entities:

Answer 1

(a) Crown (s7)
(b) Victrack Land or PTC (s7A)
(c) an Authority within the meaning of the Water Act (s7AB)
(d) a Council to council land (s7B) (note: Councils may close roads or laneways and gain title to the land. Such an exercise defeats the interest of an adverse possessor as the title issues to the council, or a third party purchaser from the council, free of all encumbrances.)
(e) an Owners Corporation in relation to common property (s7B)

Question 2

what is adverse possession?

Answer 2

Adverse possession involves the acquisition of title through another person’s possession of land after the registered proprietor has not asserted their rights with the limitation period.

Question 3

To succeed in an adverse possession application, the applicant would need to prove the following 2 things:

Answer 3

(a) he is presently in exclusive possession; and
(b) he has been in exclusive possession continuously for at least 15 years without the licence of the true owner, such possession being held with animus possidendi, an intention to possess the Property. In other words, Bob has to show both factual possession of the Ppty and the requisite intention to possess it.

Question 4

back council rates if ppty had been exempt from rates; s174A of Local Govt Act allows council to impose back rates for how many years>

Answer 4

5

Question 5

What is a fixture?

Answer 5

“Fixture” is a chattel which is attached to land so as to become part of the land.

Question 6

What does degree of annexation mean?

Answer 6

if an item is fixed to land by any means other than its own weight, then prima facie it is a fixture and the party asserting it is not a fixture then has the burden of proof; if not otherwise fixed but kept in position by its own weight, then the party asserting it is a fixture has the burden of rebutting the presumption and satisfying the court that it is a fixture. (Aust Provincial Assurance v Coroneo 1938 NSW). Courts consider factors such as:

(i) whether removal would cause damage to land or buildings or to the item attached (if can’t remove without injury to land - fixture (Belgrove Noms v Barlin Scott)
(ii) whether cost of removal would exceed value of item attached(Metal Manufacturers v FCT 1999

Question 7

What does Object or purpose of annexation mean?

Answer 7

if chattel fixed to land with intention that it should remain in position permanently or for an indefinite or substantial period - it is a fixture. if intention that it only remain in position for some temporary purpose - it is not a fixture (Holland v Hodgson 1872). The relevant intention is the objective intention of the party/s fixing the chattel. The objective test is to be gathered from the purpose for which and the time during which use in the fixed position is contemplated (Kay’s Leasing Corp. case 1962 Vic). Factors courts consider:

(i) attachment for better enjoyment of the pppty and or building
(ii) nature of the ppty
(iii) whether to be in position permanently or temporarily
(iv) who fixed it - if owner, more likely to be fixture (Palumberi case).
(v) each case depends on it own facts

Question 8

Name 4 consequences of a Terms Contract:

Answer 8

(b) Consequences of a Terms Contract:
(i) additional vendor statement required re cost of vendor finance if the contract is a terms contract on the basis of the first definition of terms contract, ie. more than three payments. (s 32(2)(f) SLA)
(ii) cannot sell on terms unless that V is the reg’d proprietor, presently entitled to become registered, or entitled pursuant to statute to sell. (s 29B SLA)
(iii) cannot sell land on terms if the land is mortgaged, unless the land sold is the only land subject to the mortgage - see s29M(a) SLA (However, see Fraser v Viccars [1998] VSC 165); such contract voidable.s29N
(iv) the contract contains special conditions in relation to application of the proceeds of sale or, alternatively, the mortgage is discharged within 90 days of the sale (s 29M SLA)

Question 9

In the case of Munro & Anor v Humphries [2008] VSC 600 - what did the court say “possession means” re terms contracts?

Answer 9

“Possession” see Munro & Anor v Humphries [2008] VSC 600 - early possession or mere early access short of possession? Held - “possession” has plain meaning but V’s attempt to avoid contract so close to settlement and cos couldn’t get 2nd mortgage finance to built unless P gave transfer therefore V not excused for contravention.

Question 10

Does an option to purchase have to be in writing?

Answer 10

7. 16 Option to purchase
   (a) An option creates an interest in land and therefore it will not be enforceable unless it is in writing and signed. s 126 Instruments Act 1958

Question 11

when will a cooling off period not apply (name 5 reasons)

Answer 11

See s31 SLA. Exclusions

(a) land uses primarily for industrial or commercial purposes
(b) land which is more than 20 acres and is uses primarily for farming;
(c) purchased at auction or 3 clear business days before or after an auction;
(d) if the parties have previously entered into a contract re the property;
(e) if the purchaser is an estate agent or a company.

Question 12

What does co-ownership mean?

Answer 12

10. 1 Co-Ownership Defined
    (a) When two or more parties acquire an interest in the same land simultaneously
    (b) Not concerned with different types of estates and interests but ownership
    (c) Each co-owner acquires an individual ‘in rem’ right in land enforceable against all persons except other co-owners

Question 13

Actions by one joint tenant that may arguably sever a joint tenancy include the following 7 circumstances:

Answer 13

(a) Actions by one joint tenant that may arguably sever a joint tenancy include:
(i) entering into a contract to sell the property.
(ii) giving the property to a third party;
(iii) mortgaging the property;
(iv) giving a guarantee over and charging the property;
(v) leasing the property;
(vi) issuing family law proceedings against another joint tenant;
(vii) murdering another joint tenant.

Question 14

what is a patent defect

Answer 14

Patent defect = a defect in title that discovered by inspection eg occupation of adjoining land

Question 15

List 4 requirements of a taxable supply

Answer 15

19. 2 Section 9-5 lists the requirements of a taxable supply:
    (a) You make the supply for consideration; and
    (b) The supply is made in the course of or furtherance of an enterprise that you carry on ; and
    (c) The supply is connected with Australia; and
    (d) You are registered or required to be registered for GST.

Question 16

Section 195-1 of GST Act defines residential premises as land or building that meets the following 2 criteria:

Answer 16

Section 195-1 of GST Act defines residential premises as land or building that:

(a) is occupied as a residence or for residential accommodation: and
(b) is intended to be occupied and is capable of being occupied as a residence for residential accommodation.

Question 17

owner builder obligations do not apply in the following 4 situations:

Answer 17

owner builder obligations do not apply:

(a) does not apply to building of more than 3 storeys
(b) subsequent owners (but s32 says must still give details of permits in last 7 years and any current owner builder insurance) (but no obligation to disclose insurance current that was obtained by a registered builder unless he built it as an owner builder)
(c) moving home from one site to another (unless work then undertaken after transportation by an owner builder)
(d) some single trades

Question 18

Does the recording of the warrant on title does create an interest in the land in favour of the judgment creditor?

Answer 18

No, , it simply creates the ability to have the land sold to satisfy the debt. Australian Eagle Insurance Co P/L v Parry (1992) ANZConvR 166

Question 19

In relation to measurement discrepancies, what is the common law position and is the position in equity?

Answer 19

23.23 The CL provides that any discrepancy will justify avoidance. Equity overrides this by providing that a material discrepancy will justify avoidance, but that an immaterial discrepancy will only justify compensation. The parties are free to agree to their own terms and a contract may provide that any discrepancy will justify avoidance, or that none will, and that any discrepancy may justify compensation, or that none will. GC 3 provides that ‘an omission or mistake in the description, measurements or area of the land does not invalidate this sale’. This special condition prohibits the purchaser from making a claim for compensation or requiring the vendor to amend title. The sc is be subject to the rule in Flight v Booth and would not prevent avoidance if there is a substantial discrepancy.

Question 20

what does GC 21 days in relation to notices and what is meant by “notice”?

Answer 20

25. 1 GC 21 - “The purchaser is responsible for any notice, order, demand or levy imposing liability on the property that is issued or made on or after the day of sale that does not relate to periodic outgoings. The purchaser may enter the property to comply with that responsibility where action is required before settlement.”
26. 2 Notice = a written document that creates an immediate legal obligation.

Question 21

In relation to GC 21 and notices, if the purchaser is liable cos the notice was issued after the date of the contract - what other claims could perhaps give the purchaser rights?

Answer 21

If GC 21 does not give P a remedy, P should consider if there has been a breach of s32 or misleading or unconscionable conduct.

Question 22

How can an easement be removed - name 4 methods:

Answer 22

1 By merger – servient and dominant tenements come into common ownership
2 In writing –
3 Abandonment: no period is specified – however must show intention to abandon. Therefore if dominant tenement did not know of the easement it may not be possible to show intent to abandon Shelmerdine & Anor v Ringen PL & Anor [1993] Vicrp 23
Abandonment – can apply pursuant to section 73 of the Transfer of Land Act 30 years
4 Statutory removal by plan of subdivision section 36 of the Subdivision Act

Question 23

How can an easement be established - name 4 methods

Answer 23

1 By statute – e,g section 12 and section 36 of the Subdivision Act 1988 and section 98 of the Transfer of Land Act Easements

2 In writing – Section 72 of the TLA – note creation of a carriageway easement requires consent of council (section 45(3) of the TLA) – can also be in an instrument such as a transfer Riley v Pentilla [1974] Vicrp 67

3 By implication or necessity – (section 98 of TLA)
4 By prescription – twenty years continuous usage may justify invoking the principle of the “modern lost grant”. See main article for case law