70317: Real Property
Spring 2016
Assessment Item 2
Part A – 6 marks
With reference to relevant case law and legislation, advise Francesca:
(a) Can she prevent the registration of the transfer to Georgina? If so, how?
Francesca is the registered proprietor of Whiteacre. Registered interests are indefeasible under ss41- 42 of the Real Property Act 1900 (NSW) unless exceptions arise. Furthermore, a person registered in the first schedule is subject to whatever is registered in the second schedule . In addition, registered interests prevail over unregistered interests under s 43 of the Real Property Act 1900 (NSW) . In relation to whether Francesca can prevent the registration of the transfer to Georgina, it is only reasonable that she lodge …show more content…
However, not all the requirements regarding a dealing registrable are found under s 43A of the Real Property Act 1900 (NSW) , therefore, by reference to other parts of the Act and relevant case law will highlight whether Joanna will enjoy a ‘dealing registrable’ and therefore eligible for the protection of s 43A of the Real Property Act 1900 (NSW) . Under s 36 (6) of the Real Property Act 1900 (NSW) , to register any dealing it must be accompanied by the certificate of title. Applying this to the facts it can be said that Joanna lodged the transfer with the certificate of title of which she is in control of. Secondly, the dealing must either be a transfer or mortgage as purchaser/first mortgagee are the only people who have control of the certificate of title . Applying this to the facts, it is clear that Joanna had lodged a transfer to be registered. Thirdly, a dealing registrable supposes that it is not yet registered but that settlement has taken place because it is only at settlement that a purchaser/ first mortgagee could have obtained certificate of title . Applying this to the facts, it is clear that the dealing not yet registered is the transfer not the discharge of mortgage. This is because the discharge of mortgage had been registered pre-settlement. Fourthly, the dealing must be stamped . It can be assumed on the facts that this has been done because it has been lodged. Fifthly, the dealing must be in an approved form; there must be no formal defects . It seems clear from the facts that no formal defects arise from the transfer. Sixthly, the dealing must not be void . Applying this to the facts, the dealing which is being registered is the transfer is not void because there was no fraudulent behaviour displayed in the settlement process. Seventhly, the dealing must be the next dealing registrable . Applying to the facts, it can
Spring 2016
Assessment Item 2
Part A – 6 marks
With reference to relevant case law and legislation, advise Francesca:
(a) Can she prevent the registration of the transfer to Georgina? If so, how?
Francesca is the registered proprietor of Whiteacre. Registered interests are indefeasible under ss41- 42 of the Real Property Act 1900 (NSW) unless exceptions arise. Furthermore, a person registered in the first schedule is subject to whatever is registered in the second schedule . In addition, registered interests prevail over unregistered interests under s 43 of the Real Property Act 1900 (NSW) . In relation to whether Francesca can prevent the registration of the transfer to Georgina, it is only reasonable that she lodge …show more content…
However, not all the requirements regarding a dealing registrable are found under s 43A of the Real Property Act 1900 (NSW) , therefore, by reference to other parts of the Act and relevant case law will highlight whether Joanna will enjoy a ‘dealing registrable’ and therefore eligible for the protection of s 43A of the Real Property Act 1900 (NSW) . Under s 36 (6) of the Real Property Act 1900 (NSW) , to register any dealing it must be accompanied by the certificate of title. Applying this to the facts it can be said that Joanna lodged the transfer with the certificate of title of which she is in control of. Secondly, the dealing must either be a transfer or mortgage as purchaser/first mortgagee are the only people who have control of the certificate of title . Applying this to the facts, it is clear that Joanna had lodged a transfer to be registered. Thirdly, a dealing registrable supposes that it is not yet registered but that settlement has taken place because it is only at settlement that a purchaser/ first mortgagee could have obtained certificate of title . Applying this to the facts, it is clear that the dealing not yet registered is the transfer not the discharge of mortgage. This is because the discharge of mortgage had been registered pre-settlement. Fourthly, the dealing must be stamped . It can be assumed on the facts that this has been done because it has been lodged. Fifthly, the dealing must be in an approved form; there must be no formal defects . It seems clear from the facts that no formal defects arise from the transfer. Sixthly, the dealing must not be void . Applying this to the facts, the dealing which is being registered is the transfer is not void because there was no fraudulent behaviour displayed in the settlement process. Seventhly, the dealing must be the next dealing registrable . Applying to the facts, it can