PART A
Clara is not yet the registered proprietor (RP) of Bernie’s lot and only has an equitable interest, by virtue of the concluded contract for sale. Albert should be advised that if his ‘easement agreement’ with Bernie is registered before Clara becomes the RP, then her title will be subject to the easement and she will be precluded from constructing a fence. The issues are:
1. Whether Albert and Bernie’s agreement is an easement.
2. The ranking of Albert and Clara’s interests.
3. Whether Albert has any recourse to compel Bernie to execute the Land Title Act (LTA) documents required for registration.
Easement Requirements
Although Albert refers to his agreement with Bernie as an ‘easement’, it is necessary to distinguish it from a license. …show more content…
This will ensure Clara does not become the RP before Albert’s claim against Bernie is resolved.
Pursuant to s 184(1) of the LTA, Bernie has an indefeasible title. The fraud exception to indefeasibility cannot be established; because the ‘fraud’ contemplated by the legislation is confined to fraud committed in the act of acquiring a registered title. However, Albert may be able to establish the ‘in-personam’ exception to indefeasibility. This exception applies to conduct both before and after registration.
Per Wilson and Toohey JJ in Bahr, the indefeasibility provisions ‘do not protect a RP from the consequences of his own actions where those actions give rise to a personal equity in another’. Equity recognises a cause of action where a RP has undertaken to be bound by another’s unregistered interest. The ‘easement agreement’ here was the product of consensual dealings between Albert and Bernie; moreover, Bernie agreed to Albert’s request to get the agreement registered. Therefore, it is apparent that Bernie had undertaken to be bound by Albert’s interest. Whether unconscionability is a pre-requisite for establishing the ‘in-personam’ exception is not settled; however, this is not an issue as Bernie’s refusal to execute the LTA documents, despite his promise to do so, is unconscionable. Overall, the in-personam exception to indefeasibility can be established. Albert should thus be able to obtain an order for ‘rectification’ to have the easement agreement placed in registrable form. Upon registration, this easement will bind subsequent proprietors of Bernie’s land, including
Clara is not yet the registered proprietor (RP) of Bernie’s lot and only has an equitable interest, by virtue of the concluded contract for sale. Albert should be advised that if his ‘easement agreement’ with Bernie is registered before Clara becomes the RP, then her title will be subject to the easement and she will be precluded from constructing a fence. The issues are:
1. Whether Albert and Bernie’s agreement is an easement.
2. The ranking of Albert and Clara’s interests.
3. Whether Albert has any recourse to compel Bernie to execute the Land Title Act (LTA) documents required for registration.
Easement Requirements
Although Albert refers to his agreement with Bernie as an ‘easement’, it is necessary to distinguish it from a license. …show more content…
This will ensure Clara does not become the RP before Albert’s claim against Bernie is resolved.
Pursuant to s 184(1) of the LTA, Bernie has an indefeasible title. The fraud exception to indefeasibility cannot be established; because the ‘fraud’ contemplated by the legislation is confined to fraud committed in the act of acquiring a registered title. However, Albert may be able to establish the ‘in-personam’ exception to indefeasibility. This exception applies to conduct both before and after registration.
Per Wilson and Toohey JJ in Bahr, the indefeasibility provisions ‘do not protect a RP from the consequences of his own actions where those actions give rise to a personal equity in another’. Equity recognises a cause of action where a RP has undertaken to be bound by another’s unregistered interest. The ‘easement agreement’ here was the product of consensual dealings between Albert and Bernie; moreover, Bernie agreed to Albert’s request to get the agreement registered. Therefore, it is apparent that Bernie had undertaken to be bound by Albert’s interest. Whether unconscionability is a pre-requisite for establishing the ‘in-personam’ exception is not settled; however, this is not an issue as Bernie’s refusal to execute the LTA documents, despite his promise to do so, is unconscionable. Overall, the in-personam exception to indefeasibility can be established. Albert should thus be able to obtain an order for ‘rectification’ to have the easement agreement placed in registrable form. Upon registration, this easement will bind subsequent proprietors of Bernie’s land, including