Tenure, Estate AND Native- Real Property- Law Assignment help

Assignment Task:

Tenure, Estate AND Native- Real Property- Law Assignment help

Topic – Tenure and Estates and Native Title; Intro to Indefeasibility 

1. How does the doctrine of native title relate to that of the doctrine of tenure? To what extent is the former reliant on the latter? 
2. Why does an estate in fee simple extinguish native title? 
3. Read Attorney-General v Brown. Compare the way in which the Court, in this case, characterizes and describes the doctrine of tenure with Brennan J’s approach in Mabo (No. 2). In particular, how was the Crown’s interest in a land characterized in each decision? How similar were the underlying arguments presented to the Court? 
4. Herschel is the registered proprietor in fee simple under the Real Property Act of Brownacre, which is situated in a county town. Upon Brownacre is erected an old four-bedroom house and a stable to the side, part of which is erected 4 meters above a 3-meter wide easement, benefiting the adjoining property and giving access to the back portion of the property

• Herschel is a veterinary surgeon, who holds the land on trust for himself and his two partners, although of course this is not disclosed on the certificate of title. 
• The property was purchased some time ago with a view to the veterinary practice being moved to the property. Unfortunately, there has been a falling out between Herschel and his two partners over the splitting of profits and the fact that one of the partners is paying undue attention to Herschel’s wife. 
• Unbeknown to the other two partners, Herschel on 1 December leases Brownacre to Dr. Stevens for a period of two and a half years. Dr. Stevens intends trying to establish a medical practice there but is delayed in taking possession as he is waiting on certain equipment. 
• Herschel then sells the property to Otis, a hay dealer, for $760,000.00. Otis inspects the property prior to an exchange and finds it vacant. After an exchange of contracts and prior to settlement, Otis meets one of Hershel’s partners in the street. The partner tells Otis that the partners may be dissolving their partnership with Herschel, but that, in any event, they will shortly be moving their practice to Brownacre. Otis instructs his solicitor to immediately settle the contract. The settlement takes place on 2 February. The transfer is registered. 
• After settlement, Otis, while inspecting Brownacre, discovers Dr. Stevens on the property, about to take possession of it for his surgery. Dr. Stevens shows Otis the lease and insists on staying for the full two and a half years. 
• It is also discovered that the adjoining owner claims the part of the stable erected over the easement. The easement is simply recorded on the title as “right of way created by transfer no 12345 dated 20-1-1917”. An examination of the transfer shows that the dealing not only gives a right of way, but also operates as a transfer of the buildings over the right of way, as it gives the adjoining owner the building plus the right to pull down or re-erect any other buildings over the right of way provided that such buildings be erected at least four meters from the ground. 
• Herschel’s partners now give notice to Otis that they intend to claim rectification of the register, or alternatively that Otis holds as trustee for them on the basis that he was fraudulent in settling the purchase of Brownacre, having had notice of their interest in the land.

Topic: Indefeasibility and Exceptions to Indefeasibility 

Ron is the registered proprietor of a property in Sydney. Ron engaged in the following dealings: 

•  Ron borrowed money from Leslie, leaving the Certificate of Title to the property with Leslie as security. Leslie stored the CT in a safe which Ron could access; 
•  Ron stole the Certificate of Title from the safe; 
•  Ron entered into an agreement to grant a right of way over his property in favour of Ben who owns the property next to Ron’s. The transfer granting the easement was registered on the folio of Ron’s land as ‘Transfer X1234567’. Ben paved the pathway and began using it daily. 
•  Ron entered into an oral lease with April for a term of two years (with no option for renewal). April moved onto the property. 
•  Ron entered into a contract to sell his property to an international buyer named Andy. Andy was unaware of the mortgage to Leslie and did not search the register prior to purchasing the property. At settlement, Andy received the Certificate of Title and a signed Transfer form in exchange for the purchase price. 

 Leslie, Ben, April and Andy become aware of what has happened and seek your advice. 
 

For the pre-preparation task, you are only required to address option 

• What would your advice to the parties be if Andy proceeded to register and is now the Registered Proprietor of the property? 
• How would your answer differ if Ben’s easement was unregistered, and Andy had lodged the transfer, along with the Certificate of Title, but is yet to be registered? 

Which priority rule would apply to help resolve the following priority disputes? 

• An unregistered tenant seeking to enforce their lease against a new Registered Proprietor; 
• Two mortgagees who have unregistered mortgages over the same parcel of land; 
• A purchaser who acquires a property subject to a registered profit a prendre; 
• Two mortgagees who have registered mortgages over the same parcel of land

In 2016, Jake sold his parcel of Torrens Title land to Charles for $1,000,000. On settlement Charles paid Jake $900,000 and promised to pay the balance of $100,000 within two weeks. Jake gave the certificate of title and a signed transfer form to Charles. The transfer contained an acknowledgment that Jake had received the full purchase price from Charles. Charles is now the Registered Proprietor of the property.  

Charles’s business ventures have recently encountered some financial difficulties and he realises that he needs to raise some extra funds. On 1 January 2018 Charles enters into an oral agreement with Amy to lease a suite of rooms in the property to her for a period of four years. Amy moved into the relevant part of the property and also installed her expensive email server to assist with the running of her home business. 

By April 2018, Charles’s financial situation has worsened and he decides that he will need to get a loan. Charles grants to Terry a written and signed mortgage over the property for $100,000.00. This mortgage is not in the form of a deed.  

By November 2018 Charles’s finances are worse than ever, and he realises he will have to sell the property. Gina, an international buyer, offers to purchase the property without inspecting it. Charles agrees to sell, and upon settlement he provides Gina’s solicitors with the certificate of title to the property as well as a signed transfer. In exchange, Gina provides the full purchase price and pays all relevant stamp duty. Registration is yet to occur.  

Amy is dismayed to hear of the sale and is worried that she will be kicked out of the property before her lease is over. Jake is also concerned about the outstanding $100,000.  

Jake and Amy come to you for advice. In your answer, begin by identifying the interest held by each party, then consider which interests may be in competition with one another (and why) and which priority rule will be applicable in resolving that dispute.

Topic: Co-Ownership

1. Michael gifts his estate in fee simple to George, Lindsay and Tobias. The instrument states that they are to take as joint tenants. The transfer is registered. After a big family fight, George decides that he wants to leave. He transfers his interest to Tobias. Tobias is in an unfortunate accident and dies. Tobias has made a will leaving all his property ‘both real and personal’ to his friend Barry. Lindsay does not want to live with Barry. She decides to sell and transfers her interest to Maeby. Maeby is not very well off. She wants to move into the house with Barry. What is the relationship between Barry and Maeby? (ie are they tenants in common or joint tenants?) Can Maeby move into the house? Why? Barry, however, doesn’t like Maeby. What can each do with the property? 
2. Michael gifts his estate in fee simple to George, Lindsay and Tobias. The instrument states that they are to take as joint tenants. The transfer is registered. After a big family fight, George decides that he wants to leave. He decides to gift his share in the property to Gob. George signs the transfer form but the Certificate of Title is at his solicitors and he cannot immediately get hold of it. Before he is able to retrieve the Certificate of Title he dies. George has left in his will all his property ‘both real and personal’ to Buster. Both Gob and Buster are now claiming they are entitled to George’s share. Who is entitled to George’s share and why? 
3. Michael gifts his estate in fee simple to George, Lindsay and Tobias. The instrument states that they are to take as joint tenants. The transfer is registered. After a big family fight, George decides that he wants to leave. He decides to sell his share in the property to Gob, who has offered a very fair price. George comes to you and asks for advice as to the best way to achieve this. Advise George as to the best way to effect the transfer and the pros and cons of each method
4. Dexter and Debra are registered proprietors of an estate in fee simple in Palm Terrace, a property under the provisions of the Real Property Act, as tenants in common. Palm Terrace is a residential apartment building containing six apartments. Debra has lived overseas for several years, and Dexter has occupied one of the apartments. He has received the rents from the remaining five apartments, and carried out maintenance work when necessary. Dexter has also erected at the front of the apartment building a single storey building containing two shops, from which he receives rent, and installed new plumbing in the apartments, following a statutory notice from the public health authority. Dexter has just died, and Debra seeks your advice as to whether Dexter’s executors are now entitled to claim any amount for the money expended on the shops, the plumbing, and general maintenance. She also wants to know whether she has any claim in respect of the income from the shops and the apartments. In so doing, what authorities will you rely on? Why? 

Topic –Mortgages 

1) Cheryl is the registered proprietor of an estate in fee simple in Goulburn. In January 2017, Cheryl grants a mortgage over her property to Betty to secure a loan of $250,000 which was advanced to Cheryl. The mortgage provided that Betty could advance a further $50,000 to Cheryl within one year. The mortgage was registered.  
In June 2017, Cheryl decided that she would like to establish a nail salon. To fund the costs of establishing the business, she obtained a loan from her friend Veronica for $50,000 which was secured by a mortgage over Cheryl’s property in Goulburn. Veronica was aware of the earlier mortgage to Betty. However, being a close friend of Cheryl’s, Veronica agreed that instead of registering her mortgage she would lodge a caveat to protect her interest. 
In October 2017, Betty advanced the further $50,000 to Cheryl.  
By December 2017 it is clear that Cheryl is no longer able to repay her mortgage to Betty, and Betty exercises her power of sale under the mortgage. Betty enters into a contract to sell the property to Archie for $300,000. 

2) What is a mortgage and what is its purpose? Who is the mortgagor and who is the mortgagee in a mortgage transaction? What is the distinction between foreclosure and the mortgagee’s power of sale – which is more prevalent today and why? What steps must one take to foreclose? How are these different to the steps one must take when exercising one's power of sale?

3) Gus is the owner of Blackacre and Whiteacre, both of which are under the provisions of the Real Property Act. Gus mortgages Blackacre and Whiteacre to Howard to secure an advance of $100,000. Gus defaults in the payment of the secured by the mortgages and Howard enters into possession of the properties. Blackacre is a corner site and is ideal for the construction of premises for the sale of ready-cooked chickens and has a value of $100,000. Whiteacre has a value $75,000. Having given appropriate notice pursuant to s.57 (2) (b) of the Real Property Act in respect of both properties, Howard purports to enter into two contracts, one for the sale of Blackacre and one for the sale of Whiteacre. Howard's brother is the managing director of Chooks Limited, the proprietors of a chain of fast-food chicken shops and Howard has shareholdings in Chooks Limited. Howard is also aware Fried Chicken Limited, a competitor of Chooks Limited, is anxious to secure Blackacre for its own ready-cooked chicken outlet. Blackacre is situated in a western suburb of Sydney. Howard arranged for a public auction to be conducted in Broken Hill on Christmas Eve. The auction was advertised in a weekly newspaper circulating in and around Wollongong. A representative of Chooks Limited was the only person present at the auction and the Contract for the Sale of Blackacre was entered into with Chooks Limited after it was knocked down by Chooks Limited at the auction for $50,000. 
The contract for the sale of Whiteacre was entered into with a purchaser introduced to Howard by a real estate agent carrying on business in the area where Whiteacre is situated The purchaser has no connection with Howard. The price agreed was $65,000, although if Whiteacre had been kept on the market for several more weeks, another purchaser would have been prepared to pay $75,000. 

Topic: Easements 

1) Carrie owns a large lot in rural New South Wales. The estate is Torrens Land. She decides to subdivide the land in order to create an estates consisting of 20 ‘hobby farms’. Apparently there is a new and significant market for angora rabbit fur. However, she realises that most people looking to relocate to a ‘hobby farm’ may not know much about rabbit farming. So she decides to offer development where people can buy a rural lifestyle and become ‘rabbit farmers’, but in which she will retain control of the rabbit business and the rabbits, in return for a major share in any profits generated. 
Carrie subdivides the land into 20 estates. The development is registered under s 88B of the Conveyancing Act 1919. The 88B instrument creates easements over lots 2-20 in favour of Lot 1 and contains the following clause: 
“… free right for every person in whose favour this instrument is created and every person authorised by him to enter, go, pass, re-pass, turn around and remain on the lot, with or without farm machinery and rabbits, for the purpose of keeping, tending and maintaining rabbits, together with the right to sell the rabbit fur and any other rabbit produce. This clause does not, however, give any such person the right to enter into any dwelling house located on the burdened lot.”  
Carrie retains lot 1. On lot 1 she builds a shed for rabbit shearing and processing and four small cottages for families who wish to come and undertake farm stay holidays. Lots 2-20 are sold. 
Saul buys lot 3. He is enthusiastic about leaving the possibilities of being a gentleman farmer, particularly as he doesn’t have to do any of the actual farming work. After a year, Saul is unhappy.  
It appears he is allergic to rabbits. In fact, he hates rabbits – they smell, they are boring and he has no idea why people think rabbits are cute. He approaches Carrie, and says that he no longer wants the rabbits, or the cages in which they are kept, on his lot. She refuses and says that she has a perfect right to farm rabbits on his land. She also points out that she only keeps them on a small part of his land – maybe one quarter – and hence they do not particularly interfere with his use of the land. 

2) Maggie owned a large lot in outer Sydney. On the back half of the lot was a house. In the 1970’s Maggie subdivided the lot into two. She sold the back half to Jim and the front half to Betty. Betty built a house on the front lot. Prior to the subdivision, access from the house at the back of the lot to the road had been across the front half of the lot. After the subdivision and sale, Jim, the new owner, also accessed the road by crossing what is now Betty’s lot. Betty and Jim have been good friends and neighbours for many years but they recently had a falling out. As a result, Betty is now refusing to allow Jim to cross her lot to gain access to the road. 

• Advise Jim whether he has an enforceable easement
• In the alternative, assume that Jim and Betty have remained good friends, but in 2016 Jim decides to move to a retirement village and sells his lot to Jesse. Betty takes an instant dislike to Jesse and refuses to allow Jesse to cross her lot to gain access to the road. Assuming that the easement between Betty and Jim was valid, can that easement be enforced by Jesse against Betty? 
• In the alternative, assuming there is not enforceable easement between Jesse and Betty, is there any other alternative mechanism that Jesse could try? One additional fact: at the rear of the back lot is a very old gate that gives access to a lane. Because this is a very old gate it is extremely narrow. It would be expensive to modify the gate because on both sides there are large sandstone walls. 

Topic: Covenants 

Walter was the registered proprietor of an estate in fee simple named Green Heights. In the 1950s, Walter subdivided his land into 6 parcels, each of which were 2 acres. At an auction for the sale of the lots a copy of the plan of subdivision was displayed. The marketing for Green Heights notes that this is an environmentally important area and that the area surrounding is a critical koala habitat. Occasionally koalas cross Green Heights and Walter is keen to ensure that the koalas continue to have free access and are safe. 
The following covenants are noted upon the plan:
 i. No pets are allowed; 
 ii. No retaining walls of over 2 metres in height
 
All the covenants were stated to benefit and burden each and every parcel of Green Heights. The lots were all sold and the transfer of each lot was made subject to the covenants mentioned. All lots were sold at auction. Lot 4 was the last to sell. Over the years, all the lots have been sold again. None are owned by the original purchasers at auction. Skylar, the current owner of Lot 4, has started building a retaining wall around her BBQ area. It will be 2.3 metres in height. Neighbours are also sure they have seen a cat on her property. The current owner of lot 2, Jesse, is concerned about both of these issues.

Topic: Leases 

In 2016 Richard entered into a five year lease over a residential property in Homebush. The property is right next to the former Olympic site and, in particular the large multistory car park which services the stadia. The lease was registered. The lease contains the following clauses: 
 
The rent will be payable on the first Friday of every month. The rent is $2000 per month. Only one person (Richard) may reside at the property. No pets are allowed. The property may not be sub-let without the approval of the landlord. 
 
In late 2016 Richard lost his job. He did find some part-time work, but his income level was significantly reduced. Because of this he found it difficult to pay the rent. In January 2017 he fell behind, but caught up in February 2017. In September 2017 he fell behind again, but caught up in February 2018. When he again failed to make the rental payments on time in early June 2018 the landlord decided to take action. The landlord also discovers that Richard has installed a small bird aviary out the back and allowed his brother to stay over one night per week. The landlord has decided that he wishes to terminate the lease. 
 a) Advise the landlord whether, and how, he can terminate the lease. To what damages, if any, will the landlord be entitled? 
 b) The landlord is also concerned that as the house is near the stadium, and therefore the area can be quite noisy, it will be difficult to re-rent. It had been advertised for over a year before Richard initially took the lease. The landlord therefore wishes to know whether, if the property fails to lease for a similar length of time, he will be entitled to any higher level of damages and why? 
 
2. Louis (a failed chef) decides to invest in real estate. He purchases a three-story building in Glebe. It’s a bit run down, but it will do for the meantime he thinks. Louis leases out two stories to a small business. On the ground floor is Harvey. He handcrafts wooden toys. They are making a comeback in a post-consumer, green-oriented world. On the middle floor is Rachel. She intends to set up a small fashion label and sell from the premises. She spends quite a lot of money outfitting the premises for production and as a small, chic, salesroom. Louis has retained the third floor. He intends to run his (hopefully) growing real estate empire from here. He is frequently away on business.

Each of the tenants signs agreements with Louis. These are expressed to be leases for a fixed period of one year. Each of the agreements contain the following clauses: 
 
(4) Louis will pay the electricity, but reserves the right, on two days’ notice, to enter and read the electricity meter; (5) The tenants may not undertake any other activities on the premises than the businesses already agreed to; (7) The lessor is entitled to keep keys to the properties but will only enter ‘if necessary’. (10) The lessee responsible for repairs. (11) the Lessee will abide by council parking regulations.  Rent is $1000 per month. 
 
After several months, all is not going very well. It seems that there is indeed a demand for small wooden toys. So Harvey has bought a lathe (a machine) which enables him to make toys faster. It is also quite noisy and can be clearly heard on the middle floor by Rachel. Louis has gone away on a lengthy business trip. In his absence, water pipes on the top floor have begun to leak. The leak is getting worse, and the water is flowing into Rachel’s floor, and downward to the ground floor. On at least two occasions the water has damaged expensive fabric bought by Rachel to make garments. In his absence, Louis has also given instructions that renovations are to begin on the exterior. Scaffolding is put up. The scaffolding covers the signs to both Rachel’s and Harvey’s premises. They cannot be seen by passers-by. Business is not good and they blame it on the scaffolding. Work is not progressing very quickly on the renovations to the exterior.

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