1. Native Title
1.1. Creation of Native Title
1.1.1. NT Act s 233
1.1.2. Mabo (No.2):
1.2. Extinguishment
1.2.1. Clear and Plain intention
1.2.2. Inconsistency test
2. Torrens System
2.1. indefeasibility
2.1.1. RPA s 42 -- indefeasibility: registered
2.1.2. NSW -- volunteer: the donor done everything what they can do for the donee.
2.2. Exception to Indefeasibility
2.2.1. Fraud
2.2.2. in personam
2.2.2.1. Short term lease
2.3. Coveat
2.3.1. equitable/unregistered interests over the land
2.3.2. function as notice to anyone searching the register that another dealing or transaction was on foot; also as an injunction to the register to register the forbidden interests.
2.4. Priority
2.4.1. Abigail v Lapins: comparing two equitable interests over the land. Lapins own the earlier equitable interests but fails to lodge a caveat over the property; Abigail owns the later equitable interests with a lodged caveat from an unregistered mortgage. even if Abigail have done the research, there is no evidence could support them to against the Hs's title. therefore, the later holder has the stronger equitable interests.
2.4.1.1. Jacobs v Platt: comprehensively considering the circumstances, Jacobs's failure to lodge a caveat for her equitable interest acquired by her exercising an option to purchase should not deprive her priority as the holder of the earlier interests
2.4.2. J&H Holdings: the bank,mortgagee, did not registered the mortgage but hold the duplicate of CT. JH lodged a caveat for their equitable interests so that the bank cannot register later. however, JH got their first notice of the bank's equitable interest. there is no obligation for the bank to lodge a caveat as they have the CT. although JH hold the caveat, the bank's interest prevails. Windeyer J said, caveat is a notice, the absence of the caveat does not mean you dont have an equitable interests but just mean that you haven't caveated to protect it. however, holding the CT is a secure way to protect your interest sans registration, sans caveat.
2.4.2.1. Perpetual Trust v Smith: the old people transferred their fee simple and CT to the bank but the bank did not hand over all money to its purchase and grant the right to old people for living in the house for life. Then, the old people hold the equitable interests. PT is registered mortgage for the bank, and after the bank's bankrupt, they became the RP over the land. comparing equitable charge v an equitable mortgage. Not only actual knowledge would led the postponing conduct, constructive knowledge either. It was intention between the Parties that the bank's interests would be subject to the retirees interest for their life or until they vacated the property in excess of 6 months.
3. other estates
3.1. Easement
3.1.1. Characteristics of easements: must be a dominant and servient tenement; must accommodate the dominant tenement. the formal requirement of the easement is set out by CA s 88.
3.1.1.1. CA s 88A indicates that an easement without a dominant tenement may be created in favour of a prescribed authority (Crown, public/local authority or corporation prescribed by the regulations - only for the supply of a utility service to the public)
3.1.2. extinguishment: abandonment; express release;alteration to the dominant tenement so extensive as to constitute excessive use; unity of dominant and servient tenement; statutory extinguishment CA s 89.
3.2. Restrictive Covenant
3.2.1. negative obligations
3.2.2. touch and concerns the land
4. Lease
4.1. requirements
4.1.1. duration: fixed term/ periodic tenancy - periodic tenancy can be created by oral agreement under CA s 23D. CA s 127 tenancy from year to year shall not be implied by payment of rent. if there is no agreement as to its duration, then such tenancy shall be deemed to be a tenancy determinable at the will of either of the parties by one month's notice in writing expiring at any time.
4.1.2. Exclusive possession: Radaich v Smith the right of bringing an action in ejectment. not limited by the expressed words in agreement should consider the whole circumstance to decide whether there is the right of exclusive possession. (lease or others)
4.1.2.1. Formality: old system - a leasehold estate may be created without formality but must be in a deed pursuant to CA s 23B. however, if you can establish a parol [oral] lease, you can circumvent the writing requirement s 23C.
4.2. Covenant
4.2.1. expressed: against assignment or subletting/pay rent/ option to renew
4.2.2. implied: quiet enjoyment/obligation not to derogate from grant/liability for the acts of others (Aussie Traveller)/condition of fitness for habitation/duty to take reasonable care for the safety of occupants (Jones v Bartlett)/uses the premises in a tenant like manner and to yield up possession when the lease expires (Warren v Keen). statutory implied obligation on tenant to repair, right of landlord to inspect with notice s 85, the right of re-entry.
4.3. Assigment
4.3.1. Moule v Garrett: between L and T there is a covenant to repair. T assign the lease to A1. A1 indemnified assignors against all subsequent breaches of covenants in lease then assigns to A2. The head lessee bring s action against A2 for breach of covenant to repair. T seeks indemnification from A2.
4.3.2. Re Hunter lease: Covenants pass to the new lessor upon assignment of the reversion as long as the covenants touch and concern the land when its operations directly and not merely collaterally affect the thing demised.
4.3.2.1. Equitable: if the assignment is not formal and the lease is also only equitable. there is no privity of estate between the Landlord and the assignee.
4.4. remedies
4.4.1. Forfeiture by landlord: CA s 85 powers in lessor: inspect twice in every year during reasonable time of the day upon giving to the lessee two day's previous notices.
4.4.1.1. Stieper v Deviot: relief from forfeiture be granted. form the evidence showed that the lessee had stored quantities of dangerous and inflammable liquids on the demised premises, thus jeopardising the lessor's insurance, and had further exhibited a complete and persistent disregard of ordinary care to minimise the risk of fire.
4.4.1.1.1. loss of bargain damages: Tabali and Shevill cases. there must be a fundamental breach. anticipatory repudiation - the tenant behaving in a way that it evince the intention of repudiation. a failure to pay rent does not amount to repudiation.
5. Mortgage
5.1. default by the mortgagor
5.1.1. notice to the mortgagor - it does not automatically effect on the power of sale. the notice should involve the opportunity for the mortgagor to make up their default within a reasonable period. RPA s 57(3)
5.1.2. Expired the noticed period, looking at the nature of the matter of the object in mortgage: whether it is equitable or registered ? the mortgage is under Torrens system or old system?
5.2. power of sale (RPA s 58)
5.2.1. CA s 109(2) must give notice to exercise the power of sale. if there is a caveat on the property, the mortgagee must also issue notice of intent to exercise the power to sell on the caveator.
5.2.2. Foreclosure: RPA s 61 after proper notice given and default for 6 months, the land has been offered for sale at public auction - a registered mortgagee could apply RG for an order for foreclosure.
5.2.2.1. equitable duties owed by the mortgagee to mortgagor in their exercise of the power of sale: cannot sell to an associate unless prove it is an independent dealing; failure to obtain value but could be remedies fi the sale was subsequently well advertised (Karaley).
5.3. Tacking
5.3.1. Tacking is a legal concept arising under the common law relating to competing priorities between two or more security interests arising over the same asset.
6. Co-ownership
6.1. Classification
6.1.1. Tenancy in Common: holds an identifiable fraction not is not formally divided up. proportion.
6.1.2. Joint Tenancy: individual means nothing.
6.1.2.1. for unities: possession; interests; title; Time
6.1.2.1.1. survivorship
6.2. Creation
6.2.1. Equity: although the tenants may registered as the joint joints, the equitable presumption may also render the following situations as the tenants in common: business partners (Lake); Money advanced on a mortgage (Re Jackson); Unequal Contribution to purchase price.
6.2.2. Rights under co-ownership
6.2.2.1. Rights of occupation: as one of the co-owner, you can invite someone else to live on the premises; occupation rent is not payable except: ouster by another co-owners [mere inconvenience does not amount to ouster (Ferguson); mere words to let him out is not (Tierney); if there is no reasonable excuse for one party to expect not to live together, it is possible to impose an obligation for paying rent from the court order (Chhokar)]; there is a contractual agreement (Leight v Dickson). In NSW, the rule allowed a co-owner to claim a share of rents collected by another even if he is not occupied there.
6.2.2.1.1. Liability for waste: a doctrine that does or does not permit you to change property either positively or negatively so that the property is devalued when it then passes to the next owner. one co-owner can bring action against another for voluntary waste. (Ferguson v Miller).
6.2.3. Creation
6.2.3.1. Equity: although the tenants may registered as the joint joints, the equitable presumption may also render the following situations as the tenants in common: business partners (Lake); Money advanced on a mortgage (Re Jackson); Unequal Contribution to purchase price.
6.2.3.2. Rights under co-ownership
6.2.3.2.1. Rights of occupation: as one of the co-owner, you can invite someone else to live on the premises; occupation rent is not payable except: ouster by another co-owners [mere inconvenience does not amount to ouster (Ferguson); mere words to let him out is not (Tierney); if there is no reasonable excuse for one party to expect not to live together, it is possible to impose an obligation for paying rent from the court order (Chhokar)]; there is a contractual agreement (Leight v Dickson). In NSW, the rule allowed a co-owner to claim a share of rents collected by another even if he is not occupied there.
6.3. Severance: still remaining a co-ownership but in a different form.
6.3.1. Corin v Patton: Patton completed a MOT in favor of her brother Corin. she dies before she could register her interest. what she did is trying to sever her JT with her husband to defeat the survivorship. Patton did not do all she needed as a donor to perfect the gift in equity. however, perfection of a gift in equity will create an equitable interest. if there is a transfer of interest in equity, you would have been better to sever JT through declaration of a trust (unilateral act). then, the whole land will hold as a tenancy in common on trust. the legal JTs hold the property on trust for the assignee and another JT will now be tenant in common at equity.
6.3.1.1. RPA s 97 allows a JT to sever by registering the property in his/her own name without a CT.
6.3.1.2. Lyons v Lyons: a mortgage under Torrens system will not sever the JT.
6.3.2. Mutual Intention: in the absence of an agreement about the shares after severed, they took it equally. (Abela v Public Trust)
6.3.2.1. William v Hensman: JT could be severed by an act of a joint tenant operating on his or her own share . severance will only occur when the parties conduct indicates that they treated themselves as tenants in common. payment of proceeds of sale of a joint tenancy into separate bank account would be sufficient to sever.