Property Law

Front 1

PSA

Back 1

Professional services agreement<br />Appointments that Principal makes for early works, eg with architect, engineering consultants.

Front 2

Development: tri-partite deed

Back 2

Agreement between principal, contractor and bank. Gives bank the right to step-into principal's role, if principal defaults, rather than just exercise power of sale on uncompleted project.

Front 3

Development: GMP

Back 3

Gross maximum price (aka fixed price). A development contract with a purported fixed price given by the contractor. Will not always be effective though because of unexcludable quantum meruit claims. <br />If allowed variation under GMP, contract will at least set out a schedule of agreed costs for services.

Front 4

What are the four unities of joint tenancy?

Back 4

* unity of possession: each tenant has full rights of possession over the entire property.<br> * unity of interest: each tenant must have the same interest in the property.<br> * unity of title: each tenant must acquire his possessory rights from the same instrument.<br> * unity of time: the possessory rights must vest at the same time.

Front 5

Earlier legal interest versus later equitable interest

Back 5

the legal interest holder will prevail unless there is some inequitable conduct on their part which justifies postponement. Eg failure to obtain possession of title deed, or careless care of them.

Front 6

does the doctrine of part performance apply to gifts?

Back 6

requires an agreement capable of performance - thus won't apply to gifts.

Front 7

what is an exception the s54A requirement for contract of sale of land to be in writing? (3 elements)

Back 7

doctrine of part performance. <br><br>applies where a party to an oral agreement performs an act to his detriment, and the act is unequivocally and in its own nature referable to some such agreement as alleged.

Front 8

Delete Seisen

Back 8

Seisen: possession of a freehold estate. Refers to formal legal interest rather than a mere possessory interest.

Front 9

When deposit recoverable under equitable jurisdiction?

Back 9

# if the forfeiture was both penal and unconscionable.<br><br> * Not clear what the unconscionable requirement adds, though at least lip-service has so far being paid to it.<br> * Courts have treated a 10% deposit though as not 'penal'. Sui generis approach.<br> * A deposit beyond 10% though may possibly still be liable to relief against forfeiture (dicta in Legione v Hateley per Mason and Deane JJ). <br><br>Held not to be a penalty.

Front 10

what remedy will court grant for estoppel?

Back 10

Will focus on relieving unjustness of unconscionability of detriment caused by reliance. <br>Many believe in doctrine of minimum equity - flexibility to do the minimum to make good the detriment.<br>Quite often though this will be in the form of making good the representation, ie transferring the full proprietary interest.

Front 11

what is the doctrine of fixtures for non-residential tenants?

Back 11

a tenant has a right to remove a fixture they attached if the fixture was of a trade domestic or ornamental kind and there was no intention for permanent improvement.<br><br>Under the Conveyancing Act s133B(2), if the tenancy agreement subjects the right to attach fixtures to the landlords consent, this must not be unreasonably refused.<br><br>Should remove before handing over possession.

Front 12

Legal remainder rules:

Back 12

Legal remainder rules: any remainder which cut short the prior particular estate was void, any grant which left a potential gap in seisen was void.<br><br>Remaider: eg to A for life, remainder to B and her heirs. <br><br># Current position: legislation prevents gaps in seisen from destroying contingent remainders (treated as if there was an equitable estate).<br><br> * s44(2) makes it possible to make direct conveyance of springing and shifting interests without the intervention of uses. Possibility though that this section is no longer valid because of the repeal of the Statute of Uses on which it was based.

Front 13

Difference between promissory condition and condition precedent.

Back 13

Neither party has promised that a condition precedent will occur. There may however be an implied promise that best efforts will be made, or cooperation offered in having the CP fulfilled.

Front 14

How far does your land extend upwards?

Back 14

as far as is necessary for ordinary use of the land

Front 15

what is the doctrine of fixtures?

Back 15

chattels (property) that have become a fixture of the land becomes the property of the owner of the land. <br>Test to determine whether a chattel has become a fixture is the physical degree of attachment and the intention behind the attachment. <br><br>Exception for tenant's fixtures: a tenant has a right to remove a fixture they attached if the fixture was of a trade domestic or ornamental kind and there was no intention for permanent improvement. The above doesn't apply to residential property, where statute dictates that fixtures can't be removed without consent, but if consent isn't given, the landlord must pay for the improvement.

Front 16

what is the statute regarding impact of need for consent for non-residential tenant's fixtures?

Back 16

Under the Conveyancing Act s133B(2), if the tenancy agreement subjects the right to attach fixtures to the landlords consent, this must not be unreasonably refused.

Front 17

What is trespass?

Back 17

Trespass - any intentional unauthorised entry onto land onto land in the actual possession of another. No defence of honest and reasonable mistake.

Front 18

What is the rule regarding finders? What are the 2 exceptions?

Back 18

They have a valid right against a stranger.<br><br># If the object is found during the course of employment, the chattel is found on behalf of the employer.<br># Where the chattel is attached to the land (and this is assumed if the chattel is buried or attached), the occupier will have a claim over the found chattel.<br><br> * If not attached, the occupier will only have a greater claim than the finder if they exhibited an intention to exercise control over the land where the chattel is found. Eg money found on a store's floor belongs to the finder. There will be a presumption of intention to control in a residential premises (eg unexplained money in a drugs raid still belonged to the occupier).<br> * A finder can't prevail over an occupier if they found the chattel while trespassing.

Front 19

Estate?

Back 19

the grant of a bundle of rights over the land.

Front 20

Fee simple

Back 20

an estate that was heritable, and there was no limitation on the heirs. By the 13th century, this estate could be sold inter vivos. The estate no longer evaporates once all heirs have passed. This estate is the closest thing to absolute ownership that the doctrine of tenure admits. The estate only returns to the state if the owner dies without leaving an inheritor. The land then passes bona vacantia to the state.

Front 21

Life estate

Back 21

grant of estate survived only while the grantee lived<br><br>Doctrine of waste: rules providing as to the care the holder of the life estate must take of the property to protect the reversionary interest of the grantor.

Front 22

Words of limitation. Do they apply to Torrens land.

Back 22

the form of words that had to be used to effectively grant different types of estate under the common law. Stricter rules applied to inter vivos grants than testamentary grants. Doesn't apply to the passing of legal Torrens title, but possible that is applies to grants of equitable interests in Torrens title land.

Front 23

Reversion

Back 23

where the grantor is left with a future interest, eg grant by A to B for life.

Front 24

where the grantor is left with a future interest, eg grant by A to B for life.

Back 24

Reversion

Front 25

remainder

Back 25

Remaider: eg to A for life, remainder to B and her heirs.

Front 26

Contingent interest

Back 26

eg to A for life then to B and her heirs when she graduates in law.

Front 27

eg to A for life then to B and her heirs when she graduates in law.

Back 27

Contingent interest

Front 28

what could be problem with: agreement to put title of land in joint ownership so long as the wife doesn't leave the husband.

Back 28

Legal remainder rules: any remainder which cut short the prior particular estate was void, any grant which left a potential gap in seisen was void.<br># Current position: legislation prevents gaps in seisen from destroying contingent remainders (treated as if there was an equitable estate).<br><br> * s44(2) makes it possible to make direct conveyance of springing and shifting interests without the intervention of uses. Possibility though that this section is no longer valid because of the repeal of the Statute of Uses on which it was based.

Front 29

Adverse possession.

Back 29

System that permits the documentary title-holders interest to be statute barred in favour of the possessory interest after the effluxation of a specified period of time. This is currently 12 years in NSW, and 30 years for claims by the Crown.

Front 30

System that permits the documentary title-holders interest to be statute barred in favour of the possessory interest after the effluxation of a specified period of time. This is currently 12 years in NSW, and 30 years for claims by the Crown.

Back 30

Adverse possession.

Front 31

what is the formal requirements for the conveyance of old system land.

Back 31

s23B Conveyancing Act: no assurance of land shall be valid to pass an interest at law unless made by deed. <br><br> * an assurance includes a conveyance and a disposition made otherwise than by will. <br> * a deed must be signed and sealed and signed by an independent witness. Must be intention for deed to be immediately binding.<br> * requirement doesn't apply to land under the Real Property Act 1900, ie registered Torrens land. <br> * doesn't apply to leases not required to be in writing.

Front 32

what is an assurance of land?

Back 32

* an assurance includes a conveyance and a disposition made otherwise than by will. <br><br>s23B Conveyancing Act: no assurance of (old system) land shall be valid to pass an interest at law unless made by deed.

Front 33

when will a contract for the sale of land be enforceable?

Back 33

s54A - needs to be in writing with signature.<br><br>exception under doctrine of part performance<br><br>auctions: this is only an aural contract, so only made binding because the auctioneer is given implied authority on behalf of the vendor and buyer to sign on their behalf.<br><br>a party to a sufficient contract of sale only has a proprietary interest if they are entitled to specific performance.

Front 34

must a requisite s54A contract of sale be in one document.

Back 34

if a signed document makes express or implied reference to a further document, they can be read together to together constitute a sufficient memorandum (ANZ v Widin). <br># Rossiter states (47) that parol evidence can be used to link two documents.<br># the document must refer to the agreement sought to be enforced, and must not disclaim its existence (eg by inclusion of 'subject to contract' clause).

Front 35

Does a written contract for the sale of land give a proprietary interest?

Back 35

a party to a sufficient contract of sale only has a proprietary interest if they are entitled to specific performance.<br /><br /># Court can refuse to grant specific performance where plaintiff doesn't have clean hands: eg is tenant has persistently breached terms of the agreement. <br /># specific performance available for personalty, but only where damages aren't a sufficient remedy<br /># specific performance might not be available where condition precedent to performance not yet fulfilled

Front 36

what interest does a vendor have in the property between contract for sale and completion?

Back 36

Legal ownership. Equitable duty to manage the property as a trustee. <br><br>If the vendor hands over possession early, retains an equitable lien over the property to the amount of the unpaid purchase money.<br><br>S66K of the CA changes this so the risk stays with the vendor till completion or a date set by the contract. If there is damage, purchaser can either rescind or have the purchase price reduced.

Front 37

who bears the risk of damage to the property between contract and completion.

Back 37

S66K of the CA changes this so the risk stays with the vendor till completion or a date set by the contract. If there is damage, purchaser can either rescind or have the purchase price reduced.

Front 38

what is the doctrine of part performance?

Back 38

# applies where a party to an oral agreement performs an act to his detriment, and the act is unequivocally and in its own nature referable to some such agreement as alleged.<br><br> * where this is the case, the Court will enforce the equities resulting from such circumstances - ie that a valid contract can't be denied.<br><br>designed to assist purchasers where there is no signed documents satisfying 54A. Doctrine survives under ss 23E(d) and 54A(2)<br><br>claims can easily fail if there is another possible reason for the conduct, other than part performance of the alleged agreement.

Front 39

why do claims of part performance often fail?

Back 39

claims can easily fail if there is another possible reason for the conduct<br><br>only applies where a party to an oral agreement performs an act to his detriment, and the act is unequivocally and in its own nature referable to some such agreement as alleged.

Front 40

what is the special rule relating to the doctrine of part perforance and mortgages?

Back 40

special example of accepted part performance is where a mortgagor hands over the title deeds as security for the loan

Front 41

must the creation or passing of equitable interests be in writing?

Back 41

Yes - s23C. <br><br>Various requirements of whether signature required, who can sign.

Front 42

Resulting trust

Back 42

# Arises by presumption of law from certain circumstances. No requirement for writing. The resulting trust can still be rebutted by evidence that there was no intention for a trust to be formed.<br># Arise where:<br><br> * failed express trust: eg a grant to A on trust for B for life, the grantor rather than A will the the reversionary interest. Also where an express trust is either void or unenforceable, the trustee holds the property on trust for the grantor.<br> * purchase in the name of another<br> * contribution to the purchase price: eg contribution of 40% of purchase price will give resulting trust (which is rebuttable) that legal owner holds 40% on trust for contributor. Contributions after the purchase (eg household expenses) are irrelevant.<br> o presumption of advancement: shift of onus towards presumption of gift where husband or fiance purchases property in the name of wife or future wife, or parent purchases for child. Can still be rebutted.

Front 43

What are the 3 types of resulting trusts?

Back 43

# failed express trust: eg a grant to A on trust for B for life, the grantor rather than A will the the reversionary interest. Also where an express trust is either void or unenforceable, the trustee holds the property on trust for the grantor.<br /># purchase in the name of another<br /># contribution to the purchase price: eg contribution of 40% of purchase price will give resulting trust (which is rebuttable) that legal owner holds 40% on trust for contributor. Contributions after the purchase (eg household expenses) are irrelevant.<br /><br /> * presumption of advancement: shift of onus towards presumption of gift where husband or fiance purchases property in the name of wife or future wife, or parent purchases for child. Can still be rebutted.

Front 44

what is the presumption of advancement?

Back 44

presumption of advancement: shift of onus towards presumption of gift where husband or fiance purchases property in the name of wife or future wife, or parent purchases for child. Can still be rebutted.<br><br>Ie rebuts initial presumption of resulting trust.

Front 45

What are the 2 types of constructive trust?

Back 45

# common-intention constructive trust - demonstrated common intention that the non-owner will receive an interest, and the owner has conducted themselves in a way that it would be inequitable to deny the non-owner a beneficial interest.<br><br /># constructive trust based on unconscionable use of title - in this situation the court can impute an agreement where there otherwise isn't one, or it would lead to an unjust result. Eg where one party makes contributions to a joint endeavour which fails without attributable blame, he is entitled to those contributions as beneficiary under a constructive trust. Doesn't apply where specific intention that other party should enjoy contribution.

Front 46

What is a common intention constructive trust?

Back 46

# demonstrated common intention that the non-owner will receive an interest, and the owner has conducted themselves in a way that it would be inequitable to deny the non-owner a beneficial interest.<br><br> o eg of inequitable situations: promise that non-owner could stay for low sale price, promise that non-owner could stay if contributed money for renovations, promise that could stay if provided care.<br> o the common intention must arise from an express or implied agreement between the parties. The court can't impute an agreement.

Front 47

constructive trust based on unconscionable use of title

Back 47

In this situation the court can impute an agreement where there otherwise isn't one, or it would lead to an unjust result. Eg where one party makes contributions to a joint endeavour which fails without attributable blame, he is entitled to those contributions as beneficiary under a constructive trust. Doesn't apply where specific intention that other party should enjoy contribution.<br /><br /> * eg wife gave her earnings to husband, who combined them with his own to pay mortgage and expenses. No common intention for her to get a beneficial interest. Court will impose equitable interest on property to reflect the woman's contribution.

Front 48

What happens where one party makes contributions to a joint endeavour which fails without attributable blame

Back 48

he is entitled to those contributions as beneficiary under a constructive trust. Doesn't apply where specific intention that other party should enjoy contribution.<br>constructive trust based on unconscionable use of title

Front 49

situation where equity prevents owner relying on legal rights against a third party, thus indirectly conferring an equitable proprietary interest.<br><br>Elements: inducement, detriment, belief that due to acts will acquire proprietary interest. Inducement may be by representation or acquiescence.

Back 49

proprietary estoppel (now acknowledged as part of general doctrine of equitable estoppel)

Front 50

Waltons Stores v Maher

Back 50

promise that lease would be granted and knowledge that expense was incurred relying on this

Front 51

What is the rule in Austotel - estoppel

Back 51

No estoppel without unambiguous inducement (Austotel - two large businesses negotiating a lease)<br><br>despite detrimental action and a letter of intent to committ, this was a lease negotiation between commercial parties who would realise nothing is binding until there is a contract

Front 52

Will interests from proprietary estoppel be mere equities?

Back 52

Uncertain whether equitable estoppel interests will be mere equities, which have a lower priority against full equities in disputes.

Front 53

What if there is a failure to follow formalities in the giving of a gift?

Back 53

Equity will not normally assist a volunteer where there has been an imperfect transfer of legal title to property. Will make gift good though if the grantor has done all that is necessary for them to do.

Front 54

Earlier legal interest versus later legal interest

Back 54

* earlier legal interest prevails - nemo dat rule.<br> * exception where the earlier holder is guilty of conduct that warrants postponent, eg gross negligence.

Front 55

Earlier equitable interest versus later legal interest

Back 55

* The legal interest prevails as long as it was acquired bona fide and for value.<br> * Doctrines of constructive notice applies in relation to inspection of the land and the title documents, preventing bona fide acquisition where there is negligence in these areas. Imputed notice gives the owner all the actual and constructive notice of its agents.<br> * Where B acquirers bona fide for value, can give effective transfer to C, even if C had notice of an equitable interest existing before B's acquisition. Exception is that a party can't benefit from their wrong, eg trustee can't repurchase trust property transferred in breach.

Front 56

Earlier equitable interest versus later equitable interest

Back 56

# Priority goes to the person with more merit. If parties are of equal merit, priority goes to the earlier interest (Rice v Rice). Limited exception for beneficiaries, where the trustee sells trust property in breach. <br># Tabula in naufrago - an equitable interest can prevail against another equitable interest if it attains the legal interest.

Front 57

Earlier 'equity' versus later equitable interest

Back 57

* A 'mere equity' will normally lose priority to a full equitable interest. Does not apply where later equitable interest has notice of the mere equity.<br> * Very uncertain area.<br> * Reasonably clear that an equity of rectification, equity to set aside transaction for fraud or undue influence are 'mere equities', not so clear for equity by estopppel or equity under a constructive trust.

Front 58

Registration of deed and priorities for old title land

Back 58

incomplete system of registering title deeds that can give priority to those registered earlier.

Front 59

vendors interest between contract for sale and completion, if hands over early.

Back 59

Torrens - retains legal ownership of the property. Equitable lien for unpaid purchase money.

Front 60

Is part performance a part of equitable estoppel? If you had a choice, which would you rely on?

Back 60

# Part performance and estoppel: possible that specficic performance is just a (more restrained) part of the doctrine of estoppel. Often those who have failed at a part performance claim (because the unequivocality requirement isn't made out) will be successful under a claim of estoppel.<br><br> * If you have the choice between the two though, should choose part performance, as more likely to get expectation remedy than under estoppel.

Front 61

how is intention to enter a contract judged?

Back 61

# Intention is judged objectively, assessed from the words used in the light of the surrounding circumstances. <br><br> * there will be no contract though if one of the parties didn't subjectively intend to enter a contract, and this was known to the other party (though presumably this is part of the surrounding circumstances that is considered above).<br> * parol evidence rule doesn't apply to question of determining if there is intention to contract - Air Great Lakes. (??)

Front 62

Does the parol evidence rule apply to the question of intention to enter a contract?

Back 62

parol evidence rule doesn't apply to question of determining if there is intention to contract - Air Great Lakes. (??)

Front 63

Intention 3 part test# (Air Great Lakes)<br><br> * _?<br> * Was the consensus capable of resulting in a contract?<br> * Did the parties intend that the consensus should constitute or result in a contract.

Back 63

Did the parties reach a consensus?

Front 64

can a contract for sale of goods be valid even where price not specfied?

Back 64

In cases of commercial contracts for the sale of goods, courts have found a valid contract even where there is no price specified. Eg may imply sell at market price, make use of arbitration clause, or same approach to previous dealings.

Front 65

Will land contract be valid where it doesn't include price or other essential terms?

Back 65

No - # Courts will be less willing to accept uncertain agreements for sale of land (Hall v Busst).<br><br> * House of Lords has been prepared to provide machinery for determining price on option purchase in lease when original machinery wasn't effective. Unlikely to be followed far in Australia without High Court lead (Sudbrook).<br><br>May also have problems with enforceability under s54A (requirement for essential terms in writing)

Front 66

Will a contract that leaves essential term to one party be valid?

Back 66

# Will not be uncertain, but may be void for creating an illusory consideration where one party given unfettered power to determine if they have to perform their fundamental promises (Placer Development).<br><br> * This problem is avoided if there is an obligation that the party has to exercise their power reasonably.

Front 67

Will a contract that leaves essential term to a third party be valid?

Back 67

Godecke v Kirwan <br> <br> * Will not arise as a problem if a third party, even a solicitor of one of the parties, is appointed to determine the essential term.

Front 68

will an express agreement to negotiate in good faith towards an agreement be enforceable?

Back 68

# An express agreement to negotiate in good faith may be enforceable (Coal Cliff Collieries). No High Court authority yet.<br><br> * No recognition yet of enforceability of implied duty to negotiate in good faith.<br>Will be more enforceable in standard contracts, eg leases, where court could add flesh to the limited terms agreed between the parties.<br># Remedies<br><br> * damages will only be nominal if court can't determine where good faith negotiations might have led.<br> * damages may be available for the loss of a chance of a profitable contract. Perhaps possible for full expectation damages (ie the full profit produced by the contract being carried out) where negotiations had produced a full agreement.<br> * in principle, reliance damages might be available if expectation damages are too hard to calculate. <br><br>#in relation to negotiate in good faith for ADR clauses regarding performance of the contract see the approval of such terms in Aiton v Transfield [1999] NSWSC 996

Front 69

what will be the remedies for breach of express agreement to negotiate in good faith?

Back 69

* damages will only be nominal if court can't determine where good faith negotiations might have led.<br> * damages may be available for the loss of a chance of a profitable contract. Perhaps possible for full expectation damages (ie the full profit produced by the contract being carried out) where negotiations had produced a full agreement.<br> * in principle, reliance damages might be available if expectation damages are too hard to calculate.

Front 70

what is the normal way of making land contracts?

Back 70

# The normal way of forming land contracts is the formal exchange of identical counterparts of the signed contract for sale.<br><br> * This conduct thus brings a very heavy onus of an intention to enter a contract.

Front 71

what is the dominant question in determining whether a land contract has been entered into?

Back 71

# The dominant question is always the intention of the parties, as determined objectively.<br><br> * Possible that a contract can be formed before the contemplated exchange.<br> o G R Securities v Baulkham Hills Private Hospital - contract was found to have been formed from series of letter between solicitors, when one referred to belief that there was a legally binding agreement even before the planned contract exchange.

Front 72

G R Securities v Baulkham Hills Private Hospital -

Back 72

contract was found to have been formed from series of letter between solicitors, when one referred to belief that there was a legally binding agreement even before the planned contract exchange.

Front 73

Will a land contract be enforceable if the signed counterparts are not identical?

Back 73

* Usually such contracts will not be enforceable if the counterparts are not identical in material terms. No objectively determined intention to enter a contract in such circumstances.<br> o Sindel v Georgiou (1984) 145 CLR 661 - an important exception to the above rule. The dominant consideration is still the intention of the parties. There an agreement following a failed auction was strongly suggestive of an intention to enter legal relations (solicitors were present). Court found there was an intention to contract even though there were some significant difference between the counterparts. Differences and holes could be resolved by including oral negotiations into the contract and rectification of differing terms.<br> + The circumstances of new cases aren't always as strong as in Sindel to warrant following the High Court decision.

Front 74

what is the exception to the rule that contracts will not be enforceable if the counterparts are not identical in material terms?

Back 74

* Sindel v Georgiou (1984) 145 CLR 661 - an important exception to the above rule. The dominant consideration is still the intention of the parties. There an agreement following a failed auction was strongly suggestive of an intention to enter legal relations (solicitors were present). Court found there was an intention to contract even though there were some significant difference between the counterparts. Differences and holes could be resolved by including oral negotiations into the contract and rectification of differing terms.<br> o The circumstances of new cases aren't always as strong as in Sindel to warrant following the High Court decision.

Front 75

what happens if a solicitor amends and initials alterations between signature by client and handing over contract for sale of land?

Back 75

This is a very dangerous pracice though, as solicitors don't have ostensible authority to make such changes. The changes will thus only be binding if the party has given the solicitor this power.

Front 76

Can you exchange land contracts by post?

Back 76

* Exchange by post is effective, but has its risk.<br /> * There can be disputes as to when the contract is formed. Parties can avoid this by setting out in the contract when formation occurs (eg on the sending or receiving of the contract).

Front 77

Can you exchange land contracts by email?

Back 77

Exchange can be done by fax or email, but the signed documents still need to be exchanged to satisfy the requirements of the Statute of Frauds for an original signature (??).

Front 78

when is an auction contract concluded?

Back 78

Contract is concluded when the hammer comes down on a bid over the reserve price. The auctioneer has implied authority to sign for the vendor or purchaser if they refuse to sign. <br>Bidder can withdraw their bid prior to the hammer falling. Vendor can do likewise. Possible that auctiooner is liable if sale is advertised as without reserve.

Front 79

why don't auction sales breach requirement for writing?

Back 79

# The auctioneer has implied authority to sign for the vendor or purchaser if they refuse to sign. <br><br> * auctioneer's clerk has no authority to sign on behalf of the purchaser, but can do so for the vendor.

Front 80

will the auctioneer be liable for not accepting highest bid at auction (instead passing in).

Back 80

Not in sales with reserve. <br>In sales without reserve, English authority though that the highest bidder can bring an action against the auctioneer if they don't accept their bid. Said to be based on a collateral contract created when such an auction is created. The auctioneer benefits from a higher turnout and more lively bidding, the bidders attend when they might not otherwise.

Front 81

can the written memorandum for sale come after the contract is concluded?

Back 81

s54A a contract may have been created, but it is not enforceable. It follows from this that the note or memorandum can come after the contract.

Front 82

Must the s54A memorandum contain all the terms?

Back 82

* Uncertain whether the memorandum must contain all the terms of the proposed contract, or just the essential ones.<br> * Must contain the names of the parties, the price and a sufficient description of the subject matter of the sale.

Front 83

What terms must the s54A memorandum contain?

Back 83

At least all essential terms, possible all terms of the alleged agreement.<br>Rossiter states (47) that also specifically need price, parties and adequate description of property.

Front 84

How do you determine if a preliminary agreement (eg heads of agreement, term sheets, letters of intent, memoranda of understanding) is binding?

Back 84

There is no rule of law that states that a preliminary agreement will always be binding or, alternatively, that it will never be binding.  Rather, the courts have found that whether a preliminary agreement is binding is a question of fact, which depends on the intentions of the parties in each, particular case. <br>

Front 85

What is the Torrens system?

Back 85

System of title by registration.<br>A duplicate certificate of title is issued on registration of interest to mirror the authoritative computer record of the property. The existing certificate of title is usually presented at the title office before the change is made.

Front 86

What is indefeasibility?

Back 86

s42 gives the registered owner priority above any other interest that might otherwise apply. Exceptions discussed below.

Front 87

What provisions of indefeasible instrument attach infeasibility?

Back 87

# question is whether the term 'touched and concerned' the land. <br><br> * a option to renew in a lease may attract indefeasible, but a personal right may not. Section 53(3) specifically makes options to purchase in registered lease indefeasible.

Front 88

Will a registered, but void lease be enforceable against the lessee?

Back 88

Yes - Karacominakis. <br>?<br>Why not in personam rights

Front 89

What are the main exceptions to indefeasibility?

Back 89

Fraud<br>Earlier registered interests<br>In personam exception<br>Tenancies less than 3 years plus constructive notice<br>Overriding statute<br>Mortgagees who don't check identity of mortgagors<br><br>Prior portfolio for that land already registered<br>Certain omissions of easements/profits not included when converted, rare cases after registration (due to Land Title error)<br>Wrongful description of parcels<br>Grants reservations and conditions (eg mineral reserve)<br>Adverse possession<br>

Front 90

What is the requirement for fraud exception to indefeasibility? 2

Back 90

<br>1. personal or moral turpitude must be present - Butler v Fairclough; there must be some 'consciously dishonest act' - Stuart v Kingston. <br>2, action of registered owner. <br><br># s43 excludes knowledge of a trust or unregistered interest from being held to be fraud.

Front 91

Will notice amount to fraud under s43 exception to indefeasibility.

Back 91

No. But will if you agree with seller that you will respect prior unregistered interest. Loke Yew.

Front 92

Can you rely on the description of an instrument in the register?<br />

Back 92

No, the instrument and its provisions are indefeasible, even if misdecribed by Titles Office. <br />Bursill Enterprises v Berger<br />Some uncertainty here.

Front 93

what unregistered tenancies wont be defeated by later registered interest?

Back 93

# are less than 3 years, and no option to extend past 3 years (uncertain if this invalidates the exception, or just means you can't exercise the option)<br># the tenant is in possession or has a right to immediate possession<br># the purchaser must have taken with notice of the tenant's interest<br><br> * either actual or constructive notice will suffice. If the tenant is in possession, this is taken as giving notice.

Front 94

What is an in personam exception to indefeasibility?

Back 94

legal or equitable obligation placed on the registered proprietor in relation to his dealing with the property and the plaintiff. Because the obligation is in relation to the land, can give rise to unregistered interests in the land for the plaintiff.<br><br># the in personam right probably has to arise from an established legal or equitable cause of action.<br># the cause of action must arise from conduct of the registered interest holder, or persons for whom they are responsible (Grigic).

Front 95

what causes of action will give rise to an in personam claim?

Back 95

the in personam right probably has to arise from an established legal or equitable cause of action.

Front 96

Overriding statutes exception to indefeasibility

Back 96

according to the normal rules of statutory interpretation, later statutes can override the Real Property Acts system of giving indefeasible title. Under the new amendment introduced in 2009, any subsequent legislation must specifically state that it overrides the Real Property Act for it to have that effect. <br><br>See the text of the amending act for a list of acts, which at the time had that effect (link). Those who suffer under this exception to indefeasibility are not necessarily entitled to compensation from the assurance fund.

Front 97

When will mortgagee lose benefit of indefeasibility?

Back 97

under the 2009 amendments, a mortgagor who doesn't take reasonable efforts to check the identity of the mortgagor will be liable to have their registered interest canceled if it turns out to be a fraud. The mortgagor has a duty to keep records of the checks that it has made for 7 years (?).

Front 98

can volunteers benefit from indefeasibility?

Back 98

overruling King v Smail it is now established in NSW that volunteers are entitled to the same protections of indefeasibility againt unregistered interests for value as anybody else - Bogdanovic v Koteff.

Front 99

what interests can be caveated?

Back 99

Normally regarded that for an interest to be caveated, it must be one that it is possible to register - eg an easement, right to purchase under contract for sale, vendor's lien, right to set aside transaction for fraud or misrepresentation.

Front 100

what is the impact of caveating?

Back 100

Puts a freeze on any further registered dealings of the property until the caveat is removed.

Front 101

how is priority decided between unregistered interests in Torrens land?

Back 101

# priority decided under the principles of Rice v Rice ie, who has the better merits, with some consideration given to who has the earlier interest.<br><br> * conduct which arms the creation of a later unregistered interest will influence towards losing priority.<br> * failure to caveat will often, but not always, lead to that party losing priority. At the same time, caveating doesn't always give you priority. <br> * exception to the normal working of the Rice v Rice system - under s43A, the purchaser with a registrable interest (ie not defective and accompanied by the certificate of title) isn't affected by notice of prior unregistered interests (??). Uncertain area.

Front 102

will you lose priority if you don't caveat your unregistered interest?

Back 102

failure to caveat will often, but not always, lead to that party losing priority. At the same time, caveating doesn't always give you priority.

Front 103

is there an exception to the normal Rice v Rice rules for priority of unregistered interests?

Back 103

exception to the normal working of the Rice v Rice system - under s43A, the purchaser with a registrable interest (ie not defective and accompanied by the certificate of title - given after completion) isn't affected by notice of prior unregistered interests (??). Uncertain area.

Front 104

What should you do if you receive a lapsing notice for a caveat you lodged?

Back 104

Apply to court as soon as possible. You only have 21 days. <br><br>Registered owner can issue lapsing notice, which will remove caveat unless there is an application to a court within 21 days. Court may reject application if waits until the last day (not enough notice to the registered owner). Interest which require the assistance of a court (eg claim under undue influence) should have a court action begun immediately, not wait until the caveat is challenged. (Link).

Front 105

are land contracts only made the customary way (ie handing over identical contracts)

Back 105

no - eg GR Securities, found to be formed from series of letters between solicitors.

Front 106

will an option to purchase in a registered lease attract indefeasibility

Back 106

yes, under s53(3)<br><br>normally q is whether term touched and concerned the land

Front 107

Number of refugees worldwide UNHCR 2008

Back 107

15.2 million

Front 108

Australia's refugee intake

Back 108

13,500 - 2008

Front 109

share of refugees taken compared to our size.

Back 109

0.1% of r's, compared to us having .3% of population and 1.5% of GDP.

Front 110

percentage of boat people refused asylum

Back 110

2-15% - Crikey.

Front 111

Joint tenants

Back 111

each joint tenant owns the entire interest, subject only to the rights of all other joint tenants. Owns no distinct share in the property, just holds the whole interest jointly.<br><br>When a joint-tenant dies, the other tenant is released from their interest over the property. Ie, the interest doesn't survive the death and can't be passed on by will. An interest though can be transferred inter vivos.<br><br>Tenancy in common: each tenant holds distinct but undivided shares in the property. Only unity of possession need exist (although the others might as well). There is no survivorship, ie a tenancy in common interest passes under the will or intestacy.

Front 112

Tenancy in common

Back 112

ach tenant holds distinct but undivided shares in the property. Only unity of possession need exist (although the others might as well). There is no survivorship, ie a tenancy in common interest passes under the will or intestacy.

Front 113

What is the difference between tenancy in common and joint tenancy

Back 113

TC has distinct but undivided shares. JT both hold full, but together.<br>When JT dies, surviving takes the share (unless they passed it inter vivos)<br>Only necessary unity for TC is unity of possession.

Front 114

Where property transferred to two or more people, how will they hold it?

Back 114

# Section 26 of the Conveyancing Act states that unless otherwise specified any disposition of a beneficial interest to two or more people will be deemed to create a tenancy in common.<br><br> * can be overcome by express words otherwise. Case law such that the effect of s26 may be only to create a presumption that can be overcome by the intention of the parties (Hircock v Windsor Homes)<br><br># the deeming doesn't apply to executors, administrators, trustees, or mortgagees.<br><br>accepted that s26 applies to chattels.

Front 115

Where chattels transferred to 2+ people, how will they hold.

Back 115

Section 26 of the Conveyancing Act states that unless otherwise specified any disposition of a beneficial interest to two or more people will be deemed to create a tenancy in common.<br>accepted that s26 applies to chattels.

Front 116

How can a joint tenancy be severed?

Back 116

unilateral action by one tenant (alienation to third party or themselves)<br>mutual agreement<br>severance by course of dealings (a course of dealings between all joint tenants sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common)<br># Severance by court order - eg under the Family Law Act.<br># Severance in cases of unlawful killing - can't unconscionably benefit from the rights of survivorship.<br># Severance on bankruptcy - on bankruptcy, the interest of the joint tenant is vested in the trustee in bankruptcy. The joint tenancy is severed, and the trustee takes (for example) a 50% undivided interest as tenant in common with the remaining joint tenant.

Front 117

Can a party by unilateral aciton sever a joint tenancy by transferring to themselves?

Back 117

Yes, but has to be effective in law or not at all, because equitable rights can't lie against yourself. Under Torrens, the transfer is only effective on registration.

Front 118

when will a joint tenancy be severed by course of dealings by the parties?

Back 118

a course of dealings between all joint tenants sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. Eg payment of proceeds of sale into separate bank accounts (Abela). Living on separate floors probably not enough (Greenfield v Greenfield).

Front 119

Can a joint tenant grant a lease over the property?

Back 119

A JT has right to full possession over the entire property. A joint-tenant can transfer this right (by lease or easement) to a third-party, but no more (eg can't give the lessee exclusive possession against the other owners).

Front 120

What happens if JT denies the other right to possession?

Back 120

a co-owner who has been excluded from possession ('ousted') may sue the ousting co-owner in trespass. The damages will be entitled to an 'occupation fee', ie the market value of the rent paid for their rights.<br>ouster requires an 'express and unequivocal denial of right to posession'. Eg inconvenience caused by renovations not enough. No ouster where caused by statutory domestic violence order.

Front 121

What is ouster?

Back 121

Action against other JT for denial of right to possession. Ouster requires an 'express and unequivocal denial of right to posession'. Eg inconvenience caused by renovations not enough. No ouster where caused by statutory domestic violence order.

Front 122

Does JT have right to contributions for repairs they paid for?

Back 122

absent agreement, a claim is only available in certain cases for set off to other claims. ??

Front 123

Strata schemes

Back 123

Statutory system covering the rights of holders of strata title in say an apartment block. Each owner gets full ownership to their lot and shared ownership of common property.

Front 124

What is the rule against perpetuities?

Back 124

A contingent interest in land must vest within 80 years of the commencement of the instrument or else it will be void for offending the rule against perpetuities (Perpetuities Act 1984). <br><br># Age reduction rule allows interests that would otherwise fail for the donee not reaching the specified age.<br># Rule could apply to make void options to purchase land. <br># Other rules to prohibit tying up of land eg wills which prevent free alienation of land, state settled land legislation.<br># The common law rule applies to instruments created before 1984. It voids all instruments that have the potential of vesting after the death of the life in being plus 21 years.

Front 125

Will an option to purchase land in 100 times be valid?

Back 125

Offends the rule against perpetuities that states A contingent interest in land must vest within 80 years of the commencement of the instrument or else it will be void.<br><br>possible that court would just hold that option is exercisable in 80 years. <br>Consider whether also breaches rules on gaps in seisen re contingent remainders.

Front 126

Option in gross

Back 126

an option standing alone and not collateral to any other grant such as a lease.

Front 127

Call option in land

Back 127

right of grantee to demand transfer of the property from the grantor to themselves.

Front 128

put option - land

Back 128

right of grantee to sell property to the grantor.

Front 129

What is the legal nature of an option?

Back 129

Conditional contract: Widely regarded as a formed contract, with a condition precedent to the performance. The condition being the valid exercise of the option. (Goldsborough Mort & Co v Quinn (1910) 10 CLR 674; Carter v Hyde (1923) 33 CLR 115)<br><br>Irrevocable offer: some belief that option is an offer to buy the property, along with a collateral contract that the offer will not be revoked until a certain date.

Front 130

What will determine the legal nature of an option between conditional contract and irrevocable offer?

Back 130

The description of option as being in the form of one of the above, is not normally decisive. Courts will instead look at the substance of the agreement. Courts have held that even options described as irrevocable offers are in fact conditional contracts.

Front 131

Do options as conditional contracts create proprietary interests?

Back 131

# seems generally accepted that a proprietary interest is created in the land (and caveatable) on the grant of the option, not its exercise (Rossiter pg 66). Still some uncertainty though.<br /><br /> * perhaps not the case where the option only comes into existence after a condition subsequent. Eg, option could be exercised 28 days after building certificate issued. Equitable interest thus only created on the issue of the building certificate (Piper Industries v Hemphill NSW, 8 June 1989)

Front 132

Is a contract for sale, subject to condition precedent to performance (not yet satisfied) an equitable interest?

Back 132

courts have held that the contract is only specifically enforceable (and equitable interest created) on the fulfillment of the condition subsequent (Farrar, Law of Options; McWilliam v McWilliams Wines (1964) 114 CLR 656).

Front 133

Do options as irrevocable offers create a proprietary interest?

Back 133

Possible in theory that irrevocable offers wouldn't so easily give rise to a proprietary interest on grant. Arguably though, courts would be unwilling to have the form of the option have such a large impact.

Front 134

How do options compete against other unregistered proprietary interests?

Back 134

Though no authority, Harley of the view that equitable interests from options would follow the same priority principles set out in Rice v Rice. Doesn't believe there is any reason why such an interest would prima facie be lesser than other unregistered/equitable interests. <br><br>Should caveat.

Front 135

What is the requirement for the assignment of a chose in action (incl. option)? (3)<br>

Back 135

assignment is allowable if absolute, in writing and notice is given to the other party (s12 CA)

Front 136

Do assignments of options need to be in writing?

Back 136

Because you are assigning a proprietary interest, must comply with requirements for writing under s23C(1) or for agreement to assign for valuable consideration, the agreement must be in writing and signature (s54A)<br /><br />Also requirements under s12 for transfer chose in action - writing, absolute transfer, give notice.

Front 137

What are the 2 formal requirements for assignment of an option?

Back 137

* As right under an option is a chose in action, assignment is allowable if absolute, in writing and notice is given to the other party (s12 CA). Equitable rights if formalities not complied with may not be sufficient. <br> * Because you are assigning a proprietary interest, must comply with requirements for writing under s23C(1) or for agreement to assign for valuable consideration, the agreement must be in writing and signature (s54A)

Front 138

When will options in gross not be assignable?

Back 138

Where option is personal to the grantee or unless the option agreement provides that it is not assignable.<br><br> * An option is personal if eg the agreement offered calls for the exercise of the personal skill or discretion of the grantee.

Front 139

What 3 forms might a nominee option take?

Back 139

# nominee can exercise on behalf of grantee<br># nominee is intended as possible ultimate beneficiary. Only the grantee can exercise the option, but can request transfer to nominee.<br># nominee is empowered to exercise the option on their own behalf. <br><br>Question of construction as to what is intended (Chambers v Odgers).

Front 140

What are the vulnerabilities of the nominee of an option?

Back 140

# , firstly because has no equitable interest with which to compete (or caveat) against a later interest.<br># Secondly, has no privity, so can't sue the grantee for breach and/or compel performance (??). <br><br>Might be advisable thus for grantee of option to assign to nominee.

Front 141

Must specified manner for exercising option be complied with strictly?

Back 141

where the manner of exercise of the option is specified, courts have previously not allowed other methods. Recent cases though have been more lenient - eg Prudential Assurance v Health Minders (1987) 9 NSWLR 674. Still requirement for unambiguous choice.

Front 142

What is problem with clause in option that payment is due 'upon' exercise?

Back 142

Unclear whether it is a condition precedent to performance. Important because failure of condition subsequent won't automatically void the contract.<br><br>instead use 'before' or state clearly that it is a condition precedent

Front 143

If option exercise contingent on no breach of lease, will courts overlook spent breaches?

Back 143

No. Rethmeier v Pioneer House<br>Possible that could get equitable relief against forfeiture in appropriate cases though. <br>Div 4, Part 8 of the CA. Grantor can't deny exercise of option for alleged breach unless serves prescribed notice within 14 days of grantee's purported exercise. The grantee can then approach the court for relief against forfeiture within one month (s133E). <br>

Front 144

What should you do if you want to object to exercise of option because of past breach by grantee?

Back 144

# Div 4, Part 8 of the CA. Grantor can't deny exercise of option for alleged breach unless serves prescribed notice within 14 days of grantee's purported exercise. The grantee can then approach the court for relief against forfeiture within one month (s133E). <br><br> * this notice is still required if the breach comes after the lessee gives notice of intention to exercise option.

Front 145

Must joint grantees of option, exercise option together?

Back 145

# question of intention whether an option granted to two people must be exercised jointly, or can be exercised by either party.<br><br> * Co-lesees - assumption that the option must be exercised by all. Not the case where the obligations of the co-lessees are joint and not several.<br> * Commercial leases where lessees are business partners - one lessee has ostensible authority to exercise an option to renew on behalf of the firm

Front 146

Can a solicitor exercise an option?

Back 146

A solicitor doesn't have ostensible authority to make a contract on behalf of client, and thus can't exercise option. Authority must be actually (whether express or implied) be given.

Front 147

Can courts relieve against forfeiture of right to exercise option, after breach of contingent condition that no breach of eg lease.

Back 147

Yes. <br />inherent jurisdiction of equity to relieve against forfeiture of proprietary interests (and perhaps more). No jurisdiction over lost contractual rights, so an initial steps will be determining if there is a proprietary interest.<br />Equity probably requires unconsionable conduct before it will intervene (Melacare).<br /><br />the required unconscionable conduct is that of the defendants. Minority view that the unfairness of the situation created (whether the defendant's fault or not) may be relevant. Little case law in this area.

Front 148

Apart from relief against forfeiture, how else might grantee claim still entitled to exercise option after breach?

Back 148

Estoppel - plaintiff might make claim that defendant is estopped from denying the continued existence of the option (Photo Art and Sound).<br />Election.

Front 149

What is a right of preemption

Back 149

# a right in the grantee to be considered a favoured potential purchaser upon a defined event, commonly the grantor's expressed intention to sell the property.<br><br> * could be a right of first refusal to a determined selling price;<br> * alternatively, could be just a right to be informed of the sale and make an offer.

Front 150

Do rights of preemption give proprietary rights?

Back 150

# unlike an option, the opportunity to acquire the proprietary interest depends on the actions of the grantor.<br /># unlike options, grantee's don't get a proprietary interest on the date of the grant, no reasonable expectation of proprietary interest.<br /><br /> * may be different once triggering event occurred, eg intention by grantor to sell (in pre-emptions where grantee given offer to buy, not just submit bid). Sterns Trading v Shteinman (1988) NSW Conv R 55-414.<br /> * it may be that only in this circumstance is the interest caveatable.

Front 151

When will right of pre-emption actually be an option to purchase?

Back 151

if the triggering event is outside the control of the grantor, eg the death of the grantor.

Front 152

Does the deposit holder hold on behalf of the vendor or purchaser?

Back 152

If deposit holder is acting as agent for the vendor, then purchaser can claim against the vendor for the return of the deposit.<br># If stakeholder fraudulently takes the money, it is the loss of the party that was legally entitled to the deposit.<br><br> * eg by vendor if purchaser entitled to have the contract completed, or purchaser's loss if they were entitled to the deposit return following termination of the sale agreement.<br><br>Exceptions<br> * where vendor implicitly warrants that deposit will be returned following rescission.<br> * where the purchaser has rescinded for fraudulent misrepresentation by the vendor. As this is a tortious action, the vendor must put the purchaser in a position they would have been had the tort not been committed.<br> * the vendor insisted on this particular stakeholder against purchaser's unequivocal request for another.<br> * in a sale of land by auction, where the deposit is paid to a stakeholder auctioneer.

Front 153

Stakeholder

Back 153

holds the deposit as trustee for both the vendor and purchaser until the sale is completed. Responsible (and liable) for paying the deposit to the party that is legally entitled to it.<br>If stakeholder fraudulently takes the money, it is the loss of the party that was legally entitled to the deposit. <br><br>Exceptions<br> * where vendor implicitly warrants that deposit will be returned following rescission.<br> * where the purchaser has rescinded for fraudulent misrepresentation by the vendor. As this is a tortious action, the vendor must put the purchaser in a position they would have been had the tort not been committed.<br> * the vendor insisted on this particular stakeholder against purchaser's unequivocal request for another.<br> * in a sale of land by auction, where the deposit is paid to a stakeholder auctioneer.

Front 154

Exceptions: Where purchaser can claim against vendor rather than stakeholder for return of pre-contract deposit: (4)

Back 154

* where vendor implicitly warrants that deposit will be returned following rescission.<br> * where the purchaser has rescinded for fraudulent misrepresentation by the vendor. As this is a tortious action, the vendor must put the purchaser in a position they would have been had the tort not been committed.<br> * the vendor insisted on this particular stakeholder against purchaser's unequivocal request for another.<br> * in a sale of land by auction, where the deposit is paid to a stakeholder auctioneer.<br><br>where not stakeholder, but actually an agent of vendor, and intention by both parties for this role.

Front 155

Does payment of a deposit give the purchaser an equitable lien?

Back 155

Only if the deposit is paid to the vendor (or their agent) rather than a stakeholder. The result is that if the vendor doesn't return the deposit when required, purchaser entitled to enforce their equitable interest over the property (eg power of sale). Such a interest would also be caveatable.

Front 156

Is the time due for payment of the deposit essential?

Back 156

In absence of express words otherwise, this will normally be the case (Brien v Dwyer (1978) 141 CLR 378). Thus purchaser can terminate for failure to render performance by the due date. <br>

Front 157

How can the right to terminate for failure to pay deposit punctually be lost? 3

Back 157

waiver (3 types), <br />contractual restriction to termination where deposit now paid,<br />remote possibility that where unfair

Front 158

What are the 3 possibilities of waiver?

Back 158

* election: vendor has knowledge of inconsistent legal rights and then exhibits conduct that unequivocally indicates a final decision.<br> o in this case would need: knowledge by vendor that purchaser has failed to pay deposit, knowledge that this gives right to terminate, exhibited conduct unequivocally exhibiting a decision.<br> + acceptance of late deposit would normally be an unequivocal action. Estate agent actions though in accepting the late deposit unlikely to bind vendor though as they have no ostensible authority to do so (unless actual authority has been given).<br> * estoppel: vendor (or authorised agent) exhibited conduct which encouraged purchaser to reasonably presume right to terminate wouldn't be used, purchaser was induced by this to take a reasonable aciton, this reliant action caused a detriment to the purchaser.<br> o it is possible here that delay without knowledge could constitute a waiver. Requirement though for detrimental reliance.<br> * doctri

Front 159

What is election?

Back 159

# vendor has knowledge of inconsistent legal rights and then exhibits conduct that unequivocally indicates a final decision.<br><br> * in this case would need: knowledge by vendor that purchaser has failed to pay deposit, knowledge that this gives right to terminate, exhibited conduct unequivocally exhibiting a decision.<br> o acceptance of late deposit would normally be an unequivocal action. Estate agent actions though in accepting the late deposit unlikely to bind vendor though as they have no ostensible authority to do so (unless actual authority has been given).

Front 160

will the real estate agents acceptance of deposit be binding election?

Back 160

No - no authority.<br>Will prevent termination though under NSW standard edition cl 2.5 - prevent vendor for terminating unless the right is exercised before payment is made

Front 161

What is common contractual restriction on right to terminate for non-payment of deposit?

Back 161

# contract may prevent vendor for terminating unless the right is exercised before payment is made. NSW standard edition cl 2.5. Analysed in Josland v Mullaley Properties (1993) 6 BPR 12,285<br><br> * payment to the vendor or agent (rather than designated deposit holder) will be deemed effective. Even the case if known that principal wouldn't want agent to accept.<br> * the acts of the estate agent in accepting the payment would bind the vendor in a way that would otherwise not be the case.<br> * vendor or agent can refuse to accept the deposit and still retain their right to terminate.

Front 162

Can a vendor refuse to accept payment of late deposit, and still terminate despite standard clause 2.5?

Back 162

Yes. But will be bound if agent accepts deposit (even against their wishes). Some vague authority that may be forced to accept after a long time.

Front 163

Can a court compel acceptance of deposit, after long time where vendor didn't even know it hadn't been paid?

Back 163

No established right. <br /><br />Jacobs J in Brian v Dwyer thought that failure to accept deposit after 2 and a half months of not even knowing it was missing might be so unfair as to allow court to compel acceptance. Hasn't been accepted anywhere else, but perhaps could in the future.

Front 164

What is a pre-contract deposit?

Back 164

A deposit paid before entering into the contract. Used as demonstration of keen interest. Not legally a deposit though.

Front 165

How does recipient of pre-contract deposit hold it?

Back 165

Holds as bare trustee.<br>Trustee couldn't hand the deposit to anyone else without clear authorisation. If did pay to vendor, they would receive it as constructive trustee.

Front 166

If pre-contract deposit holder absoconds with the deposit, who bears the loss?

Back 166

# will be the purchaser's loss (Sorrell v Finch HL).<br><br> * Estate agent doesn't have authority (absent actual authority) to take such a deposit on behalf of the vendor. <br> * Two conditions must be satisfied for vendor to bear loss:<br> o purchaser has authorised agent to hold the pre-contract deposit on behalf of the vendor<br> + courts will not easily draw such a conclusion. Signing not yet enforceable contract for sale that deposit goes to agent on behalf of the vendor will probably not be sufficient.<br> o vendor has given actual or apparent authority to the agent to take the sum on their behalf (there will be no ostensible authority).

Front 167

what 2 conditions must be satisfied for vendor to be responsible for deposit holder leaving with pre-contract deposit?

Back 167

# purchaser has authorised agent to hold the pre-contract deposit on behalf of the vendor<br><br> * courts will not easily draw such a conclusion. Signing not yet enforceable contract for sale that deposit goes to agent on behalf of the vendor will probably not be sufficient.<br><br># vendor has given actual or apparent authority to the agent to take the sum on their behalf (there will be no ostensible authority).

Front 168

Can vendor still terminate if sues for recovery of unpaid deposit?

Back 168

Can't rely on that breach to terminate.

Front 169

Can vendor retain deposit after contract is terminated?

Back 169

# The vendor can retain the deposit after termination for the purchaser's breach (Bot v Ristevski [1981] VR 120).<br /><br /> * Analysis dependent on deposit being paid as a security for the purchaser's performance.<br /> * If the deposit is paid as an installment of the purchase price, the vendor can't keep the deposit (they have no acrrued right to do so, there right to the purchase money being based on their dependent promise to transfer the propery). Consideration has totally failed.<br /><br />Wide relief against forfeiture available.

Front 170

If deposit unpaid after termination (due to Ps breach), and due to be paid to deposit holder, can vendor sue for performance?

Back 170

Yes, can sue for liquidated damages, as implied that deposit now due to him Trpkovski v Russell (full FC)

Front 171

What 2 avenues available for relief against forfeiture of deposit?

Back 171

equitable jurisdiction (wider scope), s55(2A)

Front 172

What is the statutory power to relief against F for deposit?

Back 172

S55(2A) of the CA gives courts a very general discretion to refuse a grant of specific performance, or return of a deposit if it 'thinks fit'.

Front 173

When will statutory power for relief against forfeiture of deposit be granted?

Back 173

Liberal approach. <br>Has the victim being the victim of circumstances without personal fault, but had endeavored to do the decent thing (Clurstock v Timanu (1988) NSW)<br>The approach of the courts doesn't seem to focus so much on the true quantum of the vendor's loss (though this has been considered relevant - Golding v Vella), but instead the reasonableness and fair dealings of the parties. Or a harsh result of the purchaser.<br><br># Things that might be looked at (Eight SRJ v Merity (1997) 7 BPR 15, 189)<br><br> * windfall benefit?<br> * was the breach the fault of external circumstances?<br> * was there any misrepresentation (even if not actionable) by the vendor?

Front 174

What statue provides for choses in action (incl. options) that assignment is allowable if absolute, in writing and notice is given to the other party

Back 174

s12 CA

Front 175

Demise

Back 175

ie lease, a right to exclusive possession of land for a specified period.

Front 176

Lease: assignment

Back 176

the transferring of the leasee's or lessor's rights to a third party.<br /><br />Sub-lease - when a tenant only transfers a portion of their interest (eg not the total property, or for a time less than the length of their lease).

Front 177

Sub-lease

Back 177

when a tenant only transfers a portion of their interest (eg not the total property, or for a time less than the length of their lease).

Front 178

What duty does a lawyer have in relation to leases?

Back 178

A lawyer has a duty to explain unusual terms in a lease - Sykes v Midland Bank.

Front 179

What are the 2 substantive requirements of creation of a lease?

Back 179

certainty of duration, exclusive possession<br /><br /> * Certainty of duration: the maximum duration of the lease must be certain for it to be valid. Both the commencement date and the maximum duration must be ascertainable at the time the lease takes effect. <br /> o eg a lease for the duration of the war is uncertain. A lease for 21 years determinable if a war starts is acceptable because the maximum duration is still certain.<br /> o periodic tenancies don't offend this rule, because just option to extend for another set period at the expiry of each period.<br /> * Exclusive possession: an interest which does not give exclusive possession to the lessee is not a lease.<br /> o The issue is the substance of the rights created, rather than labels used or intention (Radaich v Smith).<br /> + possible that intention will still be considered in some special cases, eg family relationships and employer/employee relationships.<br /> + presumption of l

Front 180

What is the certainty duration requirement for a lease?

Back 180

# the maximum duration of the lease must be certain for it to be valid. Both the commencement date and the maximum duration must be ascertainable at the time the lease takes effect. <br><br> * eg a lease for the duration of the war is uncertain. A lease for 21 years determinable if a war starts is acceptable because the maximum duration is still certain.<br> * periodic tenancies don't offend this rule, because just option to extend for another set period at the expiry of each period.

Front 181

How do courts determine whether an agreement is a lease or a license?

Back 181

# Exclusive possession: an interest which does not give exclusive possession to the lessee is not a lease.<br><br> * The issue is the substance of the rights created, rather than labels used or intention (Radaich v Smith).<br> o possible that intention will still be considered in some special cases, eg family relationships and employer/employee relationships.<br> o presumption of license where the premises forms part of the landlord's house.

Front 182

How do you get indefeasibility for a lease?

Back 182

# a lease must be registered for it to obtain indefeasible legal interest under the Torrens system. <br><br> * under 42(1)(d), a registered proprietor is not able to assert indefeasibility against a tenancy of under 3 years, if they took ownership with actual or constructive notice of the lease (see above for further).

Front 183

What leases don't have to be registered to get the (de facto) impact of indefeasibility?

Back 183

under 42(1)(d), a registered proprietor is not able to assert indefeasibility against a tenancy of under 3 years, if they took ownership with actual or constructive notice of the lease (see above for further).

Front 184

What leases must be registered?

Back 184

# a lease of more than 3 years must be registered under s53 (what happens if not apart from no indefeasibility??)<br># a lease of less than 3 years may still be registered (Parkinson v Braham).

Front 185

Fixed-term tenancies

Back 185

a tenancy set to expire at a certain time in the future. The tenancy automatically comes to an end when the period expires (subject to statute)

Front 186

Periodic tenancies

Back 186

a tenancy that runs from one period to another, and continue indefinitely unless terminated by either party. Can arise by express agreement or implication.<br>

Front 187

implied periodic tenancies

Back 187

s127(1) prevents the above implication of yearly periodic tenancies. Instead, any tenancy that doesn't have an agreement to duration that is effective at law will be a tenancy determinable at will with one month's notice (can still be assigned and sublet though unlike a common law tenancy at will). Possible that this provision only applies to leases that would have be implied yearly tenancies (rather than some other term).

Front 188

Tenancy at will

Back 188

# either party may determine the tenancy at any time. Can be created expressly or by implication, eg where tenant holds over at expiry of fixed-term lease with landlord consent, or purchaser let into possession prior to settlement.<br><br> * Rent is payable by agreement.<br> * A tenancy at will is unassignable and determines on the death of either party. Possible that express or implied agreement that reasonable notice period required.

Front 189

What happens if you have a periodic lease without agreement as to duration?

Back 189

s127(1) prevents the above implication of yearly periodic tenancies. Instead, any tenancy that doesn't have an agreement to duration that is effective at law will be a tenancy determinable at will with one month's notice

Front 190

Tenancy at sufferance

Back 190

where tenant remains in possession after expiration of fixed-term tenancy without consent. If rent is paid and accepted, may become implied periodic tenancy. Prior to that, tenant subject to compensation for 'use and occupation', or mesne profits for trespass following a notice to quit.

Front 191

Reversionary leases

Back 191

a lease expressed to come into existence some time in the future. Can't be longer than 21 years from date of grant (s120A(3)).

Front 192

What is the time limit for a lease that starts in the future?

Back 192

Can't be longer than 21 years from date of grant (s120A(3)).

Front 193

What are the possible sources for terms to be implied into a lease? (4)

Back 193

Covenants implied at common law - ie terms implied at law (rather than fact)<br>Covenants implied by statute - implied by ss84 and 85.<br>Covenants by necessary implication - ie terms implied in fact in common law.<br>Tort law obligations

Front 194

What are the 3 terms implied by law into leases on lessors?

Back 194

give quiet enjoyment, not to derograte from grant, for furnished premises; provide premises in state fit for habitation<br><br>other sources of implied covenants

Front 195

What are the 3 terms implied by law into leases on lessees?

Back 195

to use the premises in a tenant like manner, to yield up the premises at the expiry of the lease, in the case of agricultural land, to cultivate in a husband-like manner

Front 196

common law implied duty to give quiet enjoyment of lease?

Back 196

* right to occupy and enjoy premises without disturbance or interference from the lessor or those he is responsible for.<br />

Front 197

is landlord responsible for actions of other lessees?

Back 197

under implied in law duty for quiet enjoyment, landlord liable for other lessor's actions, if they are acting in a way authorised or contemplated in their lease (eg saw mill).

Front 198

can the implied at law covenants be excluded?

Back 198

yes, by express words.

Front 199

implied at law obligation not to derogate from grant.

Back 199

# where the landlord uses retained premises in a way that undermines the purposes for which other premises were let (and known about by the landlord).<br># eg blocking free flow of air to premises which required ventilation.

Front 200

What are 3 implied at law terms for lessess?

Back 200

to use the premises in a tenant like manner (probably over-ruled by statute terms)<br>to yield up the premises at the expiry of the lease - tenant liable for landlord's cost of evicting sub-lessee. <br>in the case of agricultural land, to cultivate in a husband-like manner

Front 201

what are the 5 covenants implied by statute into leases? (subject to exclusion)

Back 201

* covenant to repair<br> o duty to keep (but not fix up) in good an tenetable repair. <br> o no responsibility for accidents, war damage, or damage from flood fire, lightning, storm and tempest<br> o no responsibility for wear and tear.<br> * covenant to pay rent<br> o unless express agreement, rent is payble in arrears, at the end of the period specified for payment.<br> o rent will abate following damage by fire, flood etc.<br> * covenant to allow landlord to expect and repair<br> o limited to twice per year, at a reasonable time and with notice.<br> o right to enter and repair if notice to repair not complied with.<br> o can enter any time for structural repairs, or those mandated by statute.<br> * covenant to re-enter for non-payment of rent<br> o right to re-enter and forfeit lease if rent in arrears for at least one month. <br> * covenant to re-enter and forfeit lease for breach of non-rental covenant<br>

Front 202

what sections of CA imply covenants into leases?

Back 202

sections 84 and 85.

Front 203

what is statute covenant for tenant to repair?

Back 203

# duty to keep (but not fix up) in good an tenetable repair. <br># no responsibility for accidents, war damage, or damage from flood fire, lightning, storm and tempest<br># no responsibility for wear and tear.

Front 204

what is statute implied covenant for tenant to pay rent? 2

Back 204

* unless express agreement, rent is payble in arrears, at the end of the period specified for payment.<br> * rent will abate following damage by fire, flood etc.

Front 205

what is statute implied lessor power to expect and repair? 3

Back 205

* limited to twice per year, at a reasonable time and with notice.<br> * right to enter and repair if notice to repair (given to lessee) not complied with.<br> * can enter any time for structural repairs, or those mandated by statute.

Front 206

what is statute covenant power to enter for non-payment of rent?

Back 206

right to re-enter and forfeit lease if rent in arrears for at least one month.

Front 207

what is statute implied covenant in relation to breach non-rent covenants?

Back 207

applies where tenant has breached any covenant for two months or has failed to repair premises after notice and reasonable time.

Front 208

When will terms be implied by fact into a lease?

Back 208

# eg in Liverpool City Council v Irwin where there was a implied term to keep elevator working and clear stairs of garbage.<br># basis: something so obvious that it goes without saying.<br><br>?? expand, 5 part codelfa test

Front 209

What is lessor's tort law duties?

Back 209

Tort of negligence - duty to ensure that reasonably discoverable defects in the premises are remedied at the commencement of the lease (Northern Sandblasting). Landlord under general duty to take reasonable care to avoid foreseeable risk of injury (Jones v Bartlett - glass door case).

Front 210

What is tenants liability under tort doctrine of waste?

Back 210

acts or omissions which cause permanent alterations to the premises. Often covered by repair covenants. All tenants are liable for voluntary waste. Tenants for a term of years, or a periodic year to year term are also liable for permissive waste (when the tenant allows the property to decay).

Front 211

What would a clause requiring 'keep and deliver up' in a lease require?

Back 211

# requires the tenant to put the premises into good repaid, even if it was delivered in poor condition.<br># no obligation to renew or improve the premises, no obligation to repair inherent defects (compare to English position where no need to give back to the landlord 'a wholly different thing from that which he demised'). Still uncertain area.

Front 212

what is limitation on clause in lease giving landlord duty to repair?

Back 212

liability dependent on tenant giving notice of what needs to be repaired.

Front 213

what is courts approach to lease covenants against assignment or subletting?

Back 213

* court will construe such covenants with mind to prevent incursions on right to free alienability of land. Eg covenant against assignment will not prevent sub-letting, a covenant against sub-letting does not prevent subletting part of the premises, neither will prevent the grant of a revocable license. Acceptance of rent from assignee or sub-tenant will evidence implied waiver of covenants preventing such.<br> * some covenants will prevent assignment or sub-letting without prior written consent of the landlord. Section 133B provides that it can't be unreasonably withheld (this can't be contracted out of, though there are loop-holes). Landlord can consider impact on future letting, and adverse impact on his interests.

Front 214

any limitation on clause giving landlord power to prevent assignment or subletting without consent?

Back 214

Section 133B provides that it can't be unreasonably withheld (this can't be contracted out of, though there are loop-holes). Landlord can consider impact on future letting, and adverse impact on his interests.

Front 215

will covenant against assignment also prevent subletting?

Back 215

no

Front 216

what is extent of covenant against subletting?

Back 216

does not prevent subletting part of the premises, neither will prevent the grant of a revocable license. Acceptance of rent from assignee or sub-tenant will evidence implied waiver of covenants preventing such.

Front 217

Privity of contract

Back 217

the covenants in the contract can be enforced against the original parties even if the tenancy or the reversionary interest is assigned or sub-let.

Front 218

Privity of estate

Back 218

where there is privity of estate between the parties, and the covenant 'touches and concerns' the land, it can be enforceable against the sub-lessee. <br><br>Exception for the assignment of the chose in action of the benefits of the contract and for certain restrictive covenants (see late).

Front 219

what covenants touch and concern the land (and hence are binding on parties under privity of estate)?

Back 219

* the covenant must work to define the parties' obligations in relation to the demised premises, and not be personal to the parties, or relate to other premises.<br> * postive egs, pay rent, repair, insure against fire, use as a dwelling-house, not assign wihtout consent, to renew the lease, not build on adjoining land, supply premises with water<br> * negative egs, pay an annual sum to a third person, repair chattels on the land, sell the reversion to the tenant, compensate tenant for non-renewal.

Front 220

what remedy does original lessee have against sub-lessee, when landlord sues them for that later's breach?

Back 220

Original tenant has implied indemnity against the assignee who committed the breach (Moule v Garrett).

Front 221

Forfeiture by re-entry

Back 221

where tenant breaches covenant in the lease, and the lease or an implied term gives the right to forfeit the lease. Procedure that must be followed depends on the covenant breached.<br><br>Alternative to termination under normal contract rules.

Front 222

what is requirement for forfeiture under breach of non-rent covenant? 3

Back 222

First, landlord requires express or implied right to forfeit following breach. <br>Second, the landlord must serve notice under s129(1) which specifies the breach and gives a chance to remedy breaches which can be remedied or pay compensation if landlord desires.<br>Third, the tenant must have to failed to remedy the breach within a reasonable time (if possible) and failed to pay compensation. Reasonable time usually three months (1898 case). Landlord can't affect what a reasonable time is by specification.

Front 223

possible to get relief against forfeiture for breach of non-rent covenant?

Back 223

# s129(2) gives court power for relief against forfeiture after breach of non-rental covenant. Court will examine whether the breaching conduct was wilful, the gravity of the breaches and the relationship between the damage and the value of the property.<br><br> * relief is available up until time of court order for possession. Still available after forfeiture by re-entry by the landlord.<br> * by s130(1) a sub-lessee has an independent right to relief. Court can vest lessee interest in the sub-tenant.

Front 224

What is rule of set-off for leases? What are the 2 types?

Back 224

# enables reduction of damages that defendant must pay to plaintiff.<br><br> * Common law set-off - available to tenant for money expended by request of landlord on something that was landlord's responsibility. Also available where tenant spent money on repairs that landlord had covenanted to carry out, but (following notification) had failed to do so. The damages can't be unliquidated, but must be actually already paid and certain.<br> * Equitable set-off - more flexible. The tenant's claim must arise under the lease. Eg, unliquidated damages for landlord's breach of covenant to repair. Equitable set-off can be excluded by agreement.

Front 225

Are there special rules for residential tenancies?

Back 225

# Much more expansive statutory scheme which compulsorily imposes a whole structure of rights and obligations.<br /># Applies to premises used as a place of residence (with a number of exceptions, eg for hotels).

Front 226

What tenancies will special rules apply to?

Back 226

residential tenancies, retail leases (Doesn't apply to leases for less than 6 months, more than 25 years, before the Act, or over shops with over 1000 square metres.)

Front 227

Does the purchaser have a positive duty to disclose defects in the title

Back 227

# Under common law, only duty to disclose for latent defects in title. Not for patent defects in title, or any defect in quality.<br><br> * A latent defect is one that isn't discoverable upon a reasonable inspection of the property by the purchaser exercising ordinary care.<br> * Scheme of mandatory disclosure though exists in New South Wales and TPA<br>It is immaterial whether the vendor is aware of the defect in title.

Front 228

latent defect

Back 228

A latent defect is one that isn't discoverable upon a reasonable inspection of the property by the purchaser exercising ordinary care.<br>duty to disclose for latent defects in title. It is immaterial whether the vendor is aware of the defect in title.

Front 229

Does vendor have duty to disclose latent defect in title even if they had no knowledge of it?

Back 229

# it is immaterial whether the vendor is aware of the defect in title.<br># The purchaser can't claim on the defect if they already had actual knowledge of it (doesn't apply if understanding that vendor would fix the defect).

Front 230

When will purchaser be restrained from claiming on latent defect in title?

Back 230

The purchaser can't claim on the defect if they already had actual knowledge of it (doesn't apply if understanding that vendor would fix the defect).

Front 231

Does the purchaser have a positive duty to disclose any defects in quality.

Back 231

No, subject to contract and mandatory disclosure regimes. <br>Will be different if vendor has made positive misstatement about the quality, or actively hid defect.

Front 232

When under common law might positive duty arise to disclose defects in quality?

Back 232

vendor has made positive misstatement about the quality, or actively hid defect.<br><br>obligations under mandatory disclosure and s52 TPA

Front 233

when will right of council to demolish building be a defect in title?

Back 233

a right of council to demolish the building is only a defect of title if the council already has obtained an order for demolition (Carpenter v McGrath). Contracts now though have vendor warranting that no building could be subject to a demolition order.

Front 234

What regulations prescribe mandatory disclosure in NSW?

Back 234

Conveyancing and Sale of Land Regulation 2000 provides for mandatory disclosure of certain documents and prescribes certain mandatory warranties by the vendor.

Front 235

What mandatory disclosure applies to land contracts?

Back 235

# Prescribed documents: planning status of land, copy of folio, copy of any registered plan, sewerage plan and copy of any registered instrument creating easement, profit a prendre or restriction.<br># Prescribed warranty: except as disclosed in the contract the land is not subject to any adverse affectation and that the land does not contain a sewer vested in the public sewerage authority and that the planning certificate annexed to the contract specifies the true planning status of the land.<br><br> * Adverse affectation: includes proposals by certain statutory and local government authorities to acquire an interest in the land; notices to vendor in relation to boundary and fencing disputes and encroachments.

Front 236

What documents must be annexed to contract for sale of land?

Back 236

Prescribed documents: planning status of land, copy of folio, copy of any registered plan, sewerage plan and copy of any registered instrument creating easement, profit a prendre or restriction.<br>Conveyancing and Sale of Land Regulation 2000

Front 237

What statutory prescribed warranties apply to land contracts?

Back 237

# except as disclosed in the contract the land is not subject to any adverse affectation and that the land does not contain a sewer vested in the public sewerage authority and that the planning certificate annexed to the contract specifies the true planning status of the land.<br><br> * Adverse affectation: includes proposals by certain statutory and local government authorities to acquire an interest in the land; notices to vendor in relation to boundary and fencing disputes and encroachments.

Front 238

What proposals will adversly affect land, requiring mandatory disclosure on sale?

Back 238

# Case law states that requirement for impact on the actual property. Eg planning approval for nearby factors wouldn't be covered. Impact on the rights of the owner of the property.<br># The property does not need to be be immediately affected. <br><br> * A planning requirement for road widening easement on subdivision affected the land.

Front 239

What sort of 'proposals' that adversly affect land must be disclosed under mandatory scheme?

Back 239

# regulations provide that: "a public or local authority has a proposal in respect of land if, and only if, the authority has issued a written statement the substance of which is inconsistent with there being no proposal of the authority in respect of the land".<br><br> * an intention given force by adoption or means of resolution - D&T Properties v Knox NSW 1972<br> o eg resolution to resume land if traffic reached a certain amount was held to be a proposal - Ex Parte Christensen [1984] 1 Qd R 382<br> + not the case though if the property is just one of those that the council is considering resuming - Copmar Holding v Commonwealth of Australia (1988) 5 BPR 9673.

Front 240

When will silence amount to misleading conduct under s52?

Back 240

# silence can amount to misleading conduct where there is a reasonable expectation that the relevant fact would be disclosed (French J in Kimberley NZI Finance v Torero (1989) ATPR 46-054).<br><br> * eg reasonable expectation that purchaser would disclose his knowledge of serious engingeering defects of subsidence of his buildings (Franich v Swannell (1993) 10 WAR 459.<br> * suggested though that in light of market practice of caveat emptor, the undisclosed would have to be quite serious like the above to attract reasonable expectation of disclosure.

Front 241

Will s52 affect sales of residential property?

Back 241

TPA claims are dependent on the transaction being in trade and commerce. Won't normally catch sales of residential property. Solicitors and real estate agent though will be liable in such sales.

Front 242

How can s52 affect land dealings?

Back 242

# S52 imposes an additional obligation against misleading or deceptive conduct.<br># This can be sufficient to catch half-truths and notable ommissions:<br><br> * eg Henjo Investements where contract noted number of seats in the restaurants (though no warranty of this), purchaser observed this and relied on this for business case, but vendor didn't have council approval for this many seats. Held to amount to misleading and deceptive conduct.

Front 243

Requisitions

Back 243

a demand by the purchase that the vendor ought to do something to put the title in order so as to be able to transfer the title as promised in the contract (assumption for fee simple).<br>requisitions in the nature of general inquiries - purchaser entitled to make enquires of the vendor in respect of various matters pertaining to the property sold.

Front 244

requisitions in the nature of general inquiries

Back 244

purchaser entitled to make enquires of the vendor in respect of various matters pertaining to the property sold.

Front 245

objection

Back 245

an objection that the title is defective and this gives rise to right to compensation or termination.

Front 246

objection to conveyance

Back 246

objection that the proposed transfer won't vest the title as promised

Front 247

use of direction of transfer at conveyance rather than registration?

Back 247

# Purchaser can't object to vendor providing delivery of a direction transfer at completion. Section 43A protects them against any notice of other unregistered interests at this time. (Meriton Apartments v McLaurin and Tait (Developments) [1976] 50 ALJR 743 HCA).<br><br> * may be different if double transfer, ie direction from registered owner to vendor and from vendor to purchaser. This may not be a problem though if registered owner is present at completion (Rossiter at 198).

Front 248

must vendor discharge mortgage before completion?

Back 248

vendor is not required to discharge mortgage before settlement, provided a signed discharge of the mortgage in registrable form is handed over. (Jonray (Sydney) v Partridge Bros [1969] 1 NSWR 621). Purchaser protected by s43A.

Front 249

must vendor have lease surrendered before completion?

Back 249

not sufficient to hand over signed surrender of lease that burdens the land. Either have to have the lessee there, or get the surrender registered before completion.

Front 250

Can you rescind for failure to answer requisition?

Back 250

Only if the requisition relates to a defect which of itself would give rise to right to terminate. You still have to give chance to remedy through requisition process. Failure to respond allows you to use notice to perform/complete. Non-compliance with that would found termination for repudiation.

Front 251

What would remedy be for failure to respond to requisition/question regarding non-serious defect?

Back 251

Failure to answer notice re such a requisition would not ground notice to perform/complete, nor would it amount to anticipatory breach. Remedies limited to specific performance of promise to answer requisitions (?) or damages.

Front 252

Standard contract: can vendor rescind rather than correct title following requisition?

Back 252

Standard clause 8: vendor can rescind if on reasonable grounds is unable or unwilling to comply with requisition. Purchaser though given the opportunity to waive requisition and maintain contract.

Front 253

When will it be reasonable for vendor to use power to rescind rather than respond to requisition?

Back 253

# the power can't be exercised capriciously and arbitrarily. Mere prior knowledge of the defect probably isn't enough in itself. Need recklessness. Eg, in Pierce Bell Sales v Frazer (1973) 130 CLR 575 vendor knew of need for Minister's consent, but honestly thought it would be no problem (it would actually be very costly) - held not to be reckless.<br><br> * The fact that vendor has breached duty to disclose latent defect is also not definitive of there being reckless conduct.<br> * Recission may available in Torrens scheme for requisitions regarding defects that didn't appear on the register, or in relation to caveats that the vendor thought could be easily removed.

Front 254

What might be unallowed exercise by vendor of power to rescind rather than respond to requisition?

Back 254

Godfrey Construction v Kangara Park (1972) 128 CLR 529 - requisition was in relation to caveat that vendor was in proceedings to remove anyway.<br>De Lellis v Tinyow (1981) 2 BPR 9236 - requisition relating to the council order for demolition, vendor had to comply anyway, so no added cost to complying with requisition that would give reasonable right to rescind rather than comply.

Front 255

What is an easement?

Back 255

A set of limited rights that non-occupiers of land hold over land occupied by someone else. Retain rights to exclude, right to enjoy and the right to alienate.

Front 256

What are the 4 substantive requirements for an easement?

Back 256

There must be a dominant and servient tenement<br>The easement must accommodate the dominant tenement<br>The dominant and servient tenement must not be held and occupied by the same person<br>The right must be capable of forming the subject-matter of a grant

Front 257

def: There must be a dominant and servient tenement

Back 257

The easement must operate for the benefit of one property to the disadvantage of another. The advantaged property is the dominant tenement, the burdened property is the servient tenement.<br />Can't have easements that benefit people (unlike profits a prendre) - this is an easement in gross<br />The dominant tenement need not be a fee simple estate, it could be another easement etc.

Front 258

def: The easement must accommodate the dominant tenement

Back 258

# the servient tenement must confer a benefit on the dominant tenement. Ie, where the right is unconnected to the dominant property it will not be valid.<br /># negative egs, a right to use canal for pleasure-craft was unconnected to the dominant land (a right of access would have been valid); rights to use pass along a road 'for all purposes. <br /># sufficient if the easement benefits a business on the dominant land; eg a right to affix a sign on the servient tenement. <br />no need for the two properties to be contiguous, but they must be sufficiently close for a benefit to be discernable.

Front 259

Will an easement for right to a general flow of air be valid?

Back 259

no - # The right must be capable of forming the subject-matter of a grant<br><br> * if the right is too broad or imprecise, it can't be an easement.

Front 260

Will an easement for right to store vehicles on land be valid?

Back 260

no - if the rights conferred are too expansive as to constitute possession will not be valid (The right must be capable of forming the subject-matter of a grant)

Front 261

Give 2 examples of an easement.

Back 261

* positive easements: right of way, right to use toilet, right to discharge water, right to occupy a church pew, to fix advertising signs, to enjoy a recreation area, use part of a block as a garden. <br> * negative easements: right to flow of air through defined aperture, right to receive water through a pipe, right to receive light for a building.

Front 262

What is the difference between an easement and a license?

Back 262

Licenses - doesn't give rise to proprietary rights that can be enforced against third parties. No substantive or formal requirements as for easement.

Front 263

What impact might change of business have on easement of right of way?

Back 263

a change of use of a dominant tenement, eg to caravan park, may make the easement, which was granted for a lesser intended use, invalid.

Front 264

What is the difference between creation of easement by reservation vs. grant?

Back 264

# reservation - grantor retains rights over the land parted with.<br># grant - servient tenement grants a right over their land in favour of the dominant tenement.

Front 265

How do you create an indefeasible easement under Torrens?<br>

Back 265

Registration.

Front 266

How does plan of subdivision create easements?

Back 266

upon registration of the plan, all easements with the plan will be created - s88B.

Front 267

How does implied easement arise under Wheeldon v Burrows? 4

Back 267

severance or grant of grantor's land; <br>quasi-easement is continuous and apparent;<br>quasi-easement necessary for reasonable enjoyment; <br>quasi-easement has been used by grantor for benefit of the land. <br>Some uncertainty as to whether it applies to Torrens land.

Front 268

What is the effect of s51 in relation to easements? (Torrens land)

Back 268

has effect that existing lesser rights can become easements on conveyance. Eg a right to store coal became an easement on conveyance of a lease. ??<br><br>s51 - Interest and rights of transferor pass to transferee

Front 269

Why do you have to be cautious when selling land to say a manufacturer and keeping abutting land?

Back 269

You might give easement to the obvious noises that such manufacturer will make.

Front 270

What relief do you have for landlocked land?

Back 270

Section 88K allows Courts to grant an easement of necessity where certain requirements met.

Front 271

Why should you be cautious of describing property with 'bounded by' or abutting on' (road) or 'situated on the seashore'

Back 271

might give easement over vendor's abutting land. <br>statute in relation to the first two for Torrens land?

Front 272

How many years required for easement acquisition by 'long user'?

Back 272

20 years

Front 273

What is a profits a prendre?

Back 273

# A right to remove something from the land of another.<br># Can exist in gross (ie vesting in a person), no need for a dominant tenement.<br># Eg right to hunt, remove slate, harvest trees.<br># Gives rise to a property right enforceable against third parties

Front 274

How might you get access over neigbors land for the purpose of construction work?

Back 274

The Access to Neigbouring Land Act 2000 (NSW) - Court can grant a right of way over neigbouring land for the purpose of construction works, or ascertaining course of drains, sewers, pipes or cables. Applicant must restore the land to its original state, and indemnify owner against loss.

Front 275

Apart from interest rates, what is the most important factor driving most real estate markets?

Back 275

employment rates. Particularly for export jobs that bring in much more additional employment. <br />0.75 new households per new job.

Front 276

Why don't the benefits of increased size result in just a few super cities?

Back 276

Negative externatilities of increased size: crime, congestion, transport costs.

Front 277

What is the rank/size rule for city size?

Back 277

Cities population will be roughly: largest city's population / rank of city

Front 278

What does Central Place Theory say about city location?

Back 278

You will tend to see even spacing of cities across an area. This is what minimizes total transportation costs.

Front 279

When will proximity to city centre have a high impact on land value?

Back 279

When transport costs are high.

Front 280

What is the residual theory of land?

Back 280

A seller or renter of land is able (by competitive forces on purchasers) to capture all the residual value of the most profitable use of that land.

Front 281

What is a freehold covenant?

Back 281

# a covenant is an obligation imposed on the owner of the land. A mechanism by which parties regulate the use of land by private agreement.<br># analogous to public planning laws that similarly restrict how a person can deal with their own land. Has similar effect to the mutual restrictions imposed by statutorily enforceable by-laws in strata-schemes.

Front 282

what competition law concerns are there with covenants? 2

Back 282

# s45B of the TPA applies to covenants that substantially lessen competition. Deeming provision for price fixing covenants (s45C).

Front 283

Must a covenator own burdened or servient land?

Back 283

no.

Front 284

When will the benefit of a covenant run with the land?<br>When will the a covenant be enforceable by an assignee of the original covenantee, against the original covenator (but not assignees of the covenator)? 2 situations

Back 284

Where the covenant is annexed to the land (intention to benefit, plus touch and concern the land, benefited land identifiable)<br>The original covenantee expressly assigns the benefit of the covenant (s12)

Front 285

When will a covenantee be able to enforce the covenant against the assignee of the covenator's land? 4

Back 285

Tulk v Moxhay<br># The covenant must be negative in substance<br> * the test is normally whether the covenator is required to incur expenditure. <br># The purchaser must have notice of the covenant<br> * can be actual or constructive notice (??)<br># The covenant must benefit the land<br> * the covenant must touch and concern the land. Won't apply to land some distance from each other (with an exception for prescribed authorities under ss 88D and 88E).<br># The covenant must be intended to run with the land<br> * s70A presumes such an intention.

Front 286

What is Tulk v Moxhay?

Back 286

Rules whereby the burden of the covenant is enforceable against an assignee of the original covenantor.

Front 287

How do you get indefeasibility for a restrictive covenant?

Back 287

s88(3) gives the Registrar the ability to note restrictive covenants on the registered title. Once noted, the interest is indefeasible.

Front 288

In what situations can a statutory order be made for extinguishment of a covenant? 3

Back 288

* the covenant is obsolete because of a change of use of the benefited land, a change in a the character of the neighborhood or other material circumstances; <br> * the continued existence of the covenant would impede the reasonable use of the burdened land without securing practical benefit to those satisfied; or<br> * no substantial injury to those entitled to the benefit of the covenant.<br><br>S89(1) gives the Supreme Court the power to modify or extinguish covenants

Front 289

When is the covenant is annexed to the land (and thus the benefit travels with assignment of the land)? 3

Back 289

(intention to benefit, plus touch and concern the land, benefited land identifiable)

Front 290

What is the average square metre used per employee?

Back 290

10 (eg tele-marketing) to 30 (eg advertising (big desks), lawyers (many offices))

Front 291

What is a spec development?

Back 291

A speculative development. One with little pre-leasing. Only begun when strong forecasts for market demand.

Front 292

what is a Torrens mortgage?

Back 292

Security by way of charge - the security holder gains rights over the property, eg right to sell the property in certain circumstances.

Front 293

Can leaseholds interests be mortgaged under Torrens? What section?

Back 293

yes - s3

Front 294

What are clogs on the equity of redemption?

Back 294

equity will not readily allows any fetters on the mortgagor's property once the mortgage has been repaid.<br>extinguishment of the right to redeem<br>postponement of the the right to redeem<br>collateral advantages<br>penalties and other covenants:

Front 295

What concern is there with a mortgage that can't be redeemed for 40 years?

Back 295

Perhaps invalid as a clog on the equity of redemption. Courts inconsistent as to when will be too long.

Front 296

What concern is there with supplier obligations etc tied in with a mortgage agreement?

Back 296

a provision that binds a mortgagor/land beyond the date of the redemption will not be valid. Can exist where the mortgagee is also a supplier, and takes opportunity to lock-in supply contract. The question will be whether this provision is part of the mortgage. Whether 1 or 2 documents are used is not definitive.

Front 297

What concern is there with obligations in a mortgage that exist beyond the redemption?

Back 297

Query whether they are invalid for breaching rule against clogs against the equity of redemption.

Front 298

What concern is there with penalty interest rates for breach?

Back 298

perhaps invalid as clog on the equity of redemption/equitable rule against penalties

Front 299

What concern is there with clauses that make the whole amount of the mortgage due on default immediately?

Back 299

query whether clog on the equity of redemption/penalty<br>equity may intervene if there is an unfair reward to the mortgagee from the result of a provision that makes the whole amount of the mortgage due on default immediately.

Front 300

What statutory section might give right to early redemption of mortgage?

Back 300

s93, CA

Front 301

triple net lease/net net net lease/absolute lease

Back 301

the tenant pays for all operating expenses (not including financing, but including property taxes, insurance, utilities and all maitenance and repairs)

Front 302

Define leases: caps on expenses or expense stops

Back 302

where there is a limit on the expenses payable by the landlord.

Front 303

effective annualized rent

Back 303

when the present value of the rent payments (with lumpiness from eg initial rent holidays) is calculated as a consistent annuity for each period.

Front 304

front door technique to analysing property development

Back 304

Starts with cost estimates and derives the required rents or selling prices that makes a project feasible.

Front 305

What legislation regulates the conduct of agents (including real estate agents)?

Back 305

Properties, Stock and Business Agents Act 2002

Front 306

What are the requirements for a solicitor to sign a transfer of property? 2

Back 306

power of authority, and that this is also registered.

Front 307

Who was the founder of Lend Lease?

Back 307

Dick Dusseldorp

Front 308

What is Dusseldorp's idea of community of interest?

Back 308

Find out what everyone's interests are, then construct a (possibly novel) solution that satisfies all of these. <br /><br />

Front 309

Lend lease: Design & Construct

Back 309

One of the first business models where Lend Lease worked together with the architect during design, rather than just come in on construction.

Front 310

What was builder's concern with productivity agreements? How did lend lease navigate it?

Back 310

That older and less able workers would be poorly treated. Lend Lease instead gave 2/3 of productivity dividends to pool that was divided equally among all workers.

Front 311

What was the history of Lend Lease's relationship with MLC?

Back 311

MLC was one of the biggest investors in LL projects, and biggest client.<br>LL bought MLC when it was being targeted by corporate raiders.<br>LL cut 50% of staff and turned the business around, bringing in outside experts. <br>LL sold MLC to NAB in 2000ish.

Front 312

Operating lease

Back 312

short-term lease

Front 313

Capital, financial or full-payout lease

Back 313

# extends for the full-life of the asset.<br /><br /> * an equivalent to borrowing and purchasing the asset.

Front 314

full service lease

Back 314

Lessor pays for maintenace, insurance etc

Front 315

direct lease

Back 315

lessee identifies the equipment it wants, lessor purchases it then leases to lessee.

Front 316

leverage lease

Back 316

lessor borrows part of the purchase price of the leased asset, using the lease contract as security.

Front 317

leasing: alternative minimum tax (AMT)

Back 317

IRS calculates your taxable income excluding eg depreciation shields. You must pay at a minimum 20% of this amount (if tax worked out normally isn't higher). Lease payments are not excluded under this process.

Front 318

Sensible reasons for leasing (6)

Back 318

* short-term leases are convenient<br> * cancellation options are valuable<br> * efficient maitenance is provided - perhaps cheaper than you could do yourself<br> * standardisation leads to low administration and transaction costs - lessor's expertise and size may mean they can buy asset at cheaper price<br> * depreciation tax shield can be used by lessor and passed on, useful if you don't have the profits to use them yourself<br> * avoiding alternative minimum tax (AMT) - IRS calculates your taxable income excluding eg depreciation shields. You must pay at a minimum 20% of this amount (if tax worked out normally isn't higher). Lease payments are not excluded under this process.

Front 319

To what sales do the s66X cooling off period for contracts for the sale of land apply?

Back 319

only residential property s66S. 5 business days. Doesn't apply if agreement otherwise, or auction sale (or sale following passing in).

Front 320

When might the residential land cooling off period apply to commercial land (and hence perhaps want to be expressly engated)?

Back 320

If selling bundle of commercial land that includes residential property.

Front 321

What is one important reason why contracts say that any rights or obligations created are subject to legislation?

Back 321

So that the contract isn't misleading or deceptive.

Front 322

Under standard contract for sale of land, by what time must the contract be paid?

Back 322

On the making of the contract (ie payment of deposit later that same day will not be sufficient). s2.2. <br>Time is essential, so substantive breach will allow termination.

Front 323

In standard contract for sale, how is the interest on the deposit divided if invested? Is it different if contract terminated?

Back 323

The interest is split equally in any event (clause 2).

Front 324

The standard contract for sale of land clause 10 sets out a number of matters that vendor need not disclose, and purchaser can't rescind over. Is this clause definitive?

Back 324

No, court may still refuse to grant vendor's claim for specific performance where there hasn't been full and frank disclosure. Similiar orders may be available under the TPA.

Front 325

There is an exception to indefeasibility for Crown grants. Similarly standard contract clause 10, means vendor has no duty to disclose any conditions etc in such a grant. When in particular should you look further into this.

Back 325

When the land abutts tidal water, or is in a mining area.

Front 326

Brevi manu

Back 326

immediate termination, ie no notice given.

Front 327

When will party be able to terminate rather than just withold performance?

Back 327

a party can't terminate immediately after failure to perform substantially essential term, where time is not of the essence. The innocent party though can withold their performance while serves notice to make time essential.

Front 328

Will the time for completion normally be essential in property sales?

Back 328

Normally the time for completion in sale of land will not be of the essence, unless expressly made so. Where time is not of the essence, you need a delay that deprives the promisee the substance of the bargain. Time may be construed to essential in mercantile contracts (Bunge Corporation New York v Tradax Export SA Panama [1981] 1 WLR 711), or the sale of going concerns (Aldridge v Miller (1931) SR (NSW) 520).

Front 329

In what sort of property sales will time for completion be of the essence?

Back 329

Sales of going concerns/businesses. Not so normally for residential land.

Front 330

What past breaches will prevent a party sending a notice to complete?

Back 330

Requirement for RWA. <br># only those breaches though which are condition precedents to the receiver's obligation to perform will prevent the sending of a notice.<br># in some cases though the sender must only be ready to tender performance of their dependent promise, eg ready to pay land tax before completion.

Front 331

What is the test used to determine whether the time given in a notice to complete is reasonable? What factors may be considred (4)?

Back 331

# The test used is whether equity would refuse a decree of specific performance based on non-compliance with the notice (remedy dependent test).<br><br> * antecedent delay of the receiver may or may not be relevant (against see Michael Realty v Carr [1977] 1 NSWLR 553).<br> * what remains to be done by the recipient and how long this would reasonably take<br> * whether prior communications about concerns regarding delayed performance<br> * effect of the delay on the notice sender<br> * balance of conveniences generally

Front 332

What is a standard time given in notice to complete in property sale contract?

Back 332

21 days was once considered a normal time for completion, but 14 days is now becoming standard (Castle Hills Tyres v Luxspice (1996) 7 BPR 14,959). Would need special circumstances for a period less than this.

Front 333

Where contract sets out what time must be given in notice to complete, will a notice gives less time than this be effective?

Back 333

where such clauses are used, a notice giving less than the time stipulated can still be effective (unless this is expressly negatived in the contract) - Caleo Bros v Lyons Bros (1980) 1 BPR 9496, though compare M & L Hazelton... (1982) 2 BPR 9558.

Front 334

What are the 3 content requirements of a notice to complete?

Back 334

Should include what has to be done to remedy the complained of breach, specify the time in which it is to be done and advice that failure to do so will give the sender the right to terminate.<br>Requirement for notices to be clear and unambigous, but courts can give some leniency by reference to what a reasonable person would understand from the notice.

Front 335

Are notices needed for rescission following failure of contingent condition?

Back 335

the deadlines of contingent conditions are normally regarded as being of the essence. No notice is needed for rescission following passsing of condition precedent.

Front 336

mortgage: personal covenant

Back 336

the contractual right for the payment of the money, and the right to sue for this. Such a covenant is implied if not expressly included.

Front 337

what is risk for mortgagee in accepting interest payments following mortgagor's breach of covenant to repay principal?

Back 337

s92 - if the mortgagee accepts just the interest payments (and not repayment of principal) for 3 months, needs to give 3 months notice if wants to foreclose etc. Doesn't apply if mortgagor has breached other covenants.

Front 338

Apart from power of sale, what other options might a mortgagee have following serious breach by mortgagor?

Back 338

Sue on personal covenant<br />Lease premises<br />Sell fixtures<br />Assign mortgage<br />Foreclose (used following default, 6 months and a failure to sell by public auction)<br />Appoint receiver<br />

Front 339

What is the restriction on who mortgagee exercising power of sale can sell to?

Back 339

Absolutely not to themselves.<br>The sale must constitute a genuinely independent bargain. Can't sell to controlled entity, agent, officer or solicitor (exceptions though do exist).

Front 340

What standard governs the mortgagee's exercise of a power of sale?

Back 340

# Mortgagee has obligation to act in good faith in relation to the sale. Uncertainty as to whether there is also a negligence standard that must be met.<br><br> * Where the mortgagor is a corporation, s420A applies a negligence standard.

Front 341

What takes priority: (latest) advance on earlier registered mortgage, or later mortgage?

Back 341

advances to prior registered mortgage will not take priority over later mortgages if there is notice. Possible exception if the money is used for the improvement of the property (building mortgage). Uncertain whether actual or constructive notice is necessary.

Front 342

What is a retail leases under the NSW Act?

Back 342

A retail lease is one for the purposes of a prescribed business, or one that takes place in a shopping centre. <br>Doesn't apply to leases for less than 6 months, more than 25 years, before the Act, or over shops with over 1000 square metres (doesn't include parking or unattached storage areas).

Front 343

What leases will require subdivision approval under s4B(1)(3) of the EPA?

Back 343

Those granting an interest over part of the land, with or without the building, (and?) the lease and any option exceed 5 years. <br>Doesn't apply to lease over part of land.

Front 344

Why is it important to accurately describe the premises that are leased in detail?

Back 344

Can determine who has obligation to repair, eg for internal insulation on outside walls.<br>Formalises rights to parking, access, services (eg air-conditioning).

Front 345

What is a ratchet clause in a lease?

Back 345

In rent reviews the price can only go up, not down. Prohibited for retail tenancies under the RLA.

Front 346

Normally, when will a purchaser be able to terminate for the vendor's failure to covey the title promised?

Back 346

# power to terminate requires a substantial breach, the purchaser wouldn't have entered into the purchase if they knew of the misdescription (Flight v Booth (1834) 131 ER 1160)<br><br> * this is construed objectively.

Front 347

Flight v Booth (1834) 131 ER 1160

Back 347

termination after failure by vendor to supply promised unencumbered title<br>power to terminate requires a substantial breach, the purchaser wouldn't have entered into the purchase if they knew of the misdescription (Flight v Booth (1834) 131 ER 1160)

Front 348

What is the test for 'inability' in relation to repudiation?

Back 348

promisee must show that the promisor was in fact 'wholly and finally' disable from performance of critical obligations' (British & Benningtons v North Western Cachar Tea i[1923] AC 48).

Front 349

In contingent conditions to performance, is the time set for fullfilment of the essence?

Back 349

Normally, yes.

Front 350

Express avoidance clause

Back 350

a contractual right to terminate. Often known as re-entry or forfeiture clauses in cases of leases of land.

Front 351

Is a party entitled to common law loss of bargain damages after terminating under contractual provision?

Back 351

A right to loss of bargain damages following termination based on an express avoidance clause is contingent on whether the defaulter's breach is one that would have allowed termination under common law (Shevill v Builders' Licensing Board HCA 1982).

Front 352

What are the two limbs of Hadley v Baxendale?

Back 352

Remoteness limit to contract damages:<br>Limited to damages:<br>1. arising naturally from the breach or <br>2. those within the reasonable contemplation of the parties

Front 353

What is the date of assessment for damages in land cases?

Back 353

# the time of breach is used for assessment of damages in all but 'very special circumstances' (Commonwealth v Amann at 161).<br># eg where large increase in the value of property that would not be covered by interest. Instead may use date of judgement.

Front 354

In breach of land sale case, can purchaser developer claim for lost profit on deal?

Back 354

Yes, subject to express provision otherwise, requirement to mitigate, remoteness test (ie reasonable contemplation of the parties, natural consequence).<br>For purchaser to prove the profit.<br>Can claim expenses otherwise under reliance damages (on vendor to establish that even these wouldn't have been recoverable under the project)

Front 355

When must purchaser begin to mitigate for failure of land sale, when purchaser hasn't yet paid purchase price?

Back 355

Purchaser can delay until there is no longer a possibility of contractual performance (Holmark Construction Company v Tsoukaris (1988) NSW Conv R 55-397)

Front 356

When will vendor breach obligation to provide vacant possession?

Back 356

# where goods are left on the premises of sufficient magnitude to interfere with substantial possession of a substantial part of the premises.<br><br> * Failure to clear sheds may satisfy this test - Warringah Contractors v Pike (1981) NSW Conv R 55-306<br> * Large pile of household rubbish and a stove, oven and bench would likely not satisfy the test - Point Glebe.

Front 357

Breach by purchaser - contract terminated - is damages for lower sale price set off against the deposit?

Back 357

The deposit is set off against the claimed expenses of a resale (Cratchley v Bloom (1984) 3 BPR 9432) but not for vendor's claim for an occupation fee and for repairs and restoration during the purchaser's possession. (??). Depends on whether the losses flowed from the termination for the purchaser's breach (??).

Front 358

When will a liquidated damages clause amount to an unenforceable penalty?

Back 358

# not a genuine pre-estimate of the losses likely to flow from the breach.<br><br> * The fact that the actual losses from the breach turned out to be less is not definitive, just as long as the estimate at the time of formation was a genuine pre-estimate. Amev-UDC Finance LTD v Austin (1986) 162 CLR 170.

Front 359

Clause 9 of the standard contract allows the vendor, following termination for purchaser's breach, to sue for the deficiency on a resale within 12 months, the reasonable cost of non-compliance and the costs of the resale. <br />What duty does the vendor have on resale?

Back 359

* Vendor will be obliged to act reasonably to get a fair price. This is bundled in with the requirement for liquidated damages to be genuine pre-estimate of loss (Rossiter at 308).<br /> * Possibly also duty of reasonableness will be implied by construction/duty of good faith (J Boag ... v Bridon Investments SC(Tas), Slicer J, 16 March 2001).

Front 360

Standard contract provides for compensation to purchaser for errors or misdescription of property. Purchaser lodges claim, and then arbitrator appointed to decide the issue. <br>Does this restrict right of Purchaser to terminate?

Back 360

The compensation provisions don't exclude the right to terminate in the normal way under the common law rules.<br>Where the misdescription affects the subject matter to such a degree that the purchaser might never have entered into the contract at all if they knew the truth. Flight v Booth.

Front 361

def: LEP

Back 361

Local environment plan - sets planning rules under EPA for local council area. An EPI (environmental planning instrument) under the Act.

Front 362

define: DCP

Back 362

Development control plan - provides additional detail to a local environment plan (an LPI).

Front 363

What are the different types of EPI?

Back 363

- local environment plan (LEP)<br>- regional environment plan (now removed)<br>- SEPPs - State environmental planning policies - give directions in specific areas<br>(seperate development criteria for declared projects under part 3A for state critical projects)

Front 364

define: complying development

Back 364

development that meets predetermined development standards. <br />Complying development is routine development like alterations and additions to a home. Councils decide what is complying development and set the standards which need to be complied with.

Front 365

Exempt development

Back 365

Development that an EPI excludes from requiring development consent - eg minor alterations.

Front 366

Integrated development

Back 366

is development (not being complying development) that, in order for it to be carried out, requires development consent and approval under other environmental legislation listed in s 91.

Front 367

Designated development

Back 367

is development that is declared to be designated development by an EPI or the regulations: s 77A. <br /><br />It is important to determine if a development proposal might be designated because such development attracts<br />additional controls. Public advertising, possible commission of inquiry, EIS (environmental impact statement).

Front 368

What is a s149 certificate?

Back 368

Issued by local council and lists all the EPIs, planning control etc that affect a piece of land.

Front 369

Staged development application

Back 369

A staged development application sets out concept proposals for a site, for which detailed proposals for separate parts of the site are to be dealt with by subsequent development applications.

Front 370

Planning agreement

Back 370

An agreement whereby a developer agrees to payments of money or land for development consent. This money is used to fund infrastructure and public facilities that benefit the development.

Front 371

Existing use rights.

Back 371

Existing use rights are commonly referred to as non-conforming existing use rights. For example, a service station can continue to operate in a residential zone even if that use is a prohibited use under the current applicable EPI.

Front 372

Planning law: Activity

Back 372

There are certain categories of development where development consent under Pt 4 of the EP&A Act is not required by an EPI, but stringent procedures for considering such activities are nonetheless applicable.<br><br>It applies to both public and private development, provided that, in the case of private development, the activity requires a government approval, other than development consent.

Front 373

1 acre in square metres

Back 373

4046 square metres

Front 374

1 hectare in square metres

Back 374

10,000 square metres

Front 375

You have a registered short-form lease that refers to an unregistered full lease. What terms of the full lease will be enforceable, if the lease isn't effective at law (eg fraud, lack of agreement).

Back 375

Registration will allow you to enforce all the terms in the registered instrument that touch and concern the land (subject to fraud and in personam claims against the registered owner). A term in the full lease though that isn't in the registered instrument may not be enforceable though just because of registration. <br><br>Perpetual Trustees Victoria Ltd v English & anor [2009] NSWSC 478

Front 376

What case establishes that an obligation to participate in ADR is enforceable (and sets out the meaning of that term)?

Back 376

Aiton v Transfield [1999] NSWSC 996 per Einstein J<br><br>(1) to undertake to subject oneself to the process of negotiation or mediation (which must be sufficiently precisely defined by the agreement to be certain and hence enforceable).<br><br>(2) to undertake in subjecting oneself to that process, to have an open mind in the sense of:<br><br>(a) a willingness to consider such options for the resolution of the dispute as may be propounded by the opposing party or by the mediator, as appropriate.<br><br>(b) a willingness to give consideration to putting forward options for the resolution of the dispute.<br><br>Subject only to these undertakings, the obligations of a party who contracts to negotiate or mediate in good faith, do not oblige nor require the party:<br><br>(a) to act for or on behalf of or in the interests of the other party;<br><br>(b) to act otherwise than by having regard to self-interest

Front 377

Typical price per sqm for a fitout?

Back 377

750 (now) to 1500

Front 378

What is the name of the paradox that thought that once you reach base amount, more money doesn't equal more happiness? Now disproven by Wolfers.

Back 378

Easterlin Paradox

Front 379

What is the normal limitation period for contract or tort claims?

Back 379

6 years - Limitation Act s14. <br>Running from the date on which the cause of action first accrues to the plaintiff<br><br>12 years for actions based on deeds.

Front 380

What is the limitation period for actions founded on a deed?

Back 380

12 years - s16 Limitations Act.

Front 381

For the purposes of the Limitations Act, whend does an action accrue in contract? What is the case for a continuing breach?

Back 381

* A cause of action for breach of contract arises when the breach is committed, whether or not any damage has been suffered as a result, and notwithstanding that the claimant is not aware that a breach has been committed.<br /> * Where the cause of action is based on a breach of a continuing contractual duty it occurs on the last day that the defendant was obliged to comply with the contractual provision.<br /><br />

Front 382

Why should you be cautious about responding to, or part-paying, an old claim (particularly for debt or liquidated damages)?

Back 382

This may restart the limitations period, which would otherwise run out. Section 54 Limitation Act.

Front 383

Why should you be cautious about conducting litigation with low chances of success?

Back 383

court may make costs order against solicitors if they proceeded with an action that didn't have reasonable prospects of success. Division 10 LPA.

Front 384

What should you do if no deadline set for condition precedent?

Back 384

advisable to issue a notice seeking to set a deadline that reflects a 'reasonable time' (Perri v Coolangatta).

Front 385

What are some examples of conduct that breaches implied covenant of quiet enjoyment?

Back 385

eg taking out doors, overflow of water, cutting off utilities, repeated threats to remove tenant, scaffolding that impacted on business.

Front 386

Under common law implied covenant quiet enjoyment, is the lessor responsible for other lessee's conduct?

Back 386

landlord liable for other lessor's actions, if they are acting in a way authorised or contemplated in their lease (eg saw mill).

Front 387

How recent must the property certificate be that is required to be attached to contracts for the sale of land by the Conveyancing regulations?

Back 387

3 months

Front 388

What could be the problem with deposit that is 5% payable on contract, then another 5% on default?

Back 388

Second 5% could be void as a penalty. Soveriegn Development case.

Front 389

property: AFL

Back 389

Agreement for Lease