Supreme Court Decision for the Compensation of Property - Case Study Example

Real Property Law Name Institution Date Part 1 1) Provide case notes for these 5 cases: (70 words per note) Claude Neon Ltd v Melbourne & Metropolitan Board of Works (1969) 43 ALR 69 Facts The appellants, in this case, were the companies appealing against a Supreme Court decision for the compensation of property that was taken compulsory by the board. Ratio The real owners of space were the board. Decision There was no deprivation of interest in the land for the appellants Obiter Getting a lease to place the advertisements on the wall did not give the company’s exclusive possession of the premises. Order Dismissal of the appeal with costs Mabo v Qld (1992) 175 CLR 1; 107 ALR 1 Facts The plaintiffs presented a case against the government that tried to extinguish them from their land Ratio There should be fairness in the treatment of the native title before the law like other titles. Decision Extinguishing the people of their rights to their property will be a violation of the Commonwealth Racial Discrimination Act of 19751. Obiter The Aboriginals have rights over their land that they have owned since history Order Claim upheld on the basis that common law of Australia recognized the native title Addison v Billion [1983] 1 NSWLR 586 Facts The plaintiff presented a case against the defendant on the ownership of land with which the registration was not under his name Ratio The ownership of land can only occur where the proprietor has registered it under his or her name. Any person in possession of land should apply to the Registrar-General to be recorded as proprietor of the entire parcel of land2. Decision The donor of the power of attorney did not own the parcel of land in question because he had not become the registered proprietor of the land. Obiter A squatter in possession of property can only apply for registration as the owner only when the registered proprietor was fraudulent Order Withdrawal of the claim based on the possession of land does not warrant ownership Delehunt v Carmody (1986) 68 ALR 283 Facts Ethel was claiming part of ownership of the property because she had contributed to the purchase price Ratio Equity imposed a resulting trust when two people contributed to the purchase price of land Decision The ownership of land was a trust resulting from joined contribution to the purchase price Obiter A joint tenancy gives the same proportional share of their part Order There was a co-ownership of land between Francis Carmody and Ethel Delehunt as joint tenants in equity Allen v Carbone (1975) 132 CLR 528 Facts The Plaintiff was the appellant sued for specific performance claiming that their agreement amounted to a concluded contract even though it was not in writing Ratio A contract for sale must be formal for it to be enforceable in a court of law Obiter The mere agreement of terms and conditions does not make a contract formal. It does not bind the parties Order Dismissal of the appeal with costs 2) Provide short notes (70 notes per note) on these questions with reference to relevant case law and legislation: The effect of native title on urban land in Sydney NSW The Native Title Amendment Act 1998 (Cth) recognizes the Commonwealth law by confirming particular rights extinguished in the Native Title Act 19933. That Native title only exists where government action has not extinguished it. In Mabo v Qld case, indigenous people have native title of land. The case raised issues that the law had to amend. Therefore, the native title of property is only for remote areas in Australia. The government extinguishes native title in the urban land in Sydney NSW. The effect of section 184G of the Conveyancing Act 1919 (NSW) on priorities between interests under Old System title The effect of s184G is that all instruments are affecting the land and executed bona fide for a valuable consideration to take effect over earlier documents. The devices in question are fraudulent and without notice. In Marsden v Campbell4, any notice given after executing the document but before its registration does not nullify such benefits5. Earlier legal interest shall be defeated by later legal interest when there is a later legal registration. s.42 of the Real Property Act 1900 (NSW) It states that the proprietor has a paramount registered proprietorship. In this case, the owner of land is conferred free ownership upon registration except in the cases of fraud. Any other person with an interest in the estate cannot claim except the proprietor. The effect is to give an immediate title by registration known as immediate indefeasibility. In the case of Frazer v Waller6, immediate indefeasibility provides the title in the event of fraud, forgery and breach of statutory prohibition. The effect of Part 7A, ss 74A-R of the Real Property Act 1900 (NSW) Part 7A talks about caveats. Ss74A-R explains different warnings. It has the effect that the various caveats are treated differently under the law depending on their category of warnings against either primary applications, dealings for easement cancellations, and general caveats7. According to the Real Property Act 1900 (NSW), these caveats will have different treatment when deciding cases in a court of law. The effect of Part 23 of the Conveyancing Act 1919 (NSW) It has the effect of giving persons entitle to land equitable estate acquisition of the legal estate or becoming entitled to the land or property through joint tenancy. Both persons will have legal and equal ownership of the property unless they agree otherwise. Such a decision was made in the case of Delehunt v Carmody, whereby the court held that where two persons have equal interests in a land, they are deemed to have a common equitable estate ownership8. The effect of s.89 of the Conveyancing Act 1919 (NSW) s.89 of the Act has the effect of giving the Court powers of modifying or extinguishing easements or particular covenants concerning land. When another person makes an application in the interest of territory the court can change the agreement after getting satisfied with the request. In the case of Stanhill Pty Ltd v Jackson, any parties with interest in property may be considered by the court and the necessary extinguishment granted9. The effect of Part 2, Division 3, ss23B-E of the Conveyancing Act 1919 (NSW) The specific sections of the Conveyancing Act 1919 set the effect of getting different assurances of land that a proprietor can obtain to ensure the safety of the property from fraudsters. A person can get an assurance of land by the deed, written instruments, creating interests in land by parol. One can also get assurance by savings concerning the above sections. Meaning of and remedies for encroachment The Encroachment of Buildings Act 1922, No 23 (NSW), defines infringement as when another person puts up a structure that interrupts another person’s land10. In the case of Allen v. Virginia Hill Water Supply Corp11, the court held that using, occupying or adjoining another person’s land without permission of encroachment12. Remedies of encroachment are the ways of handling intrusion. The nature and effect of a lease for three years s.42(1) of the Real Property Act (NSW) mandates leases of three years or less as legal in nature and have the exceptions of indefeasibility. They have the effect of equitable lease created orally through the principles of proprietary estoppel13. In the case of Harvey v Pratt, a lease with a determinate term gives a person exclusive possession. Therefore, a three-year contract is legal and enforceable14. 3. Answer the following: Bigdeal v Horace Bigdeal Pty Ltd (Bigdeal) offers for lease or sale mainframe and wireless computer equipment to businesses. Although Bigdeal equipment comes in packages sized to fit into a lift, some of it is portable and some of it needs to be assembled on site and installation requires some minor building work to the ceilings, walls, floor and carpet. a. What advice would you give Bigdeal about the installation of its equipment? The Bidgeal scenario is one that relates to the definition of real property and its subsequent installation on land. When making the decision to install its equipment, Bigdeal should determine whether the items or equipment are real estate or personal property. The two types of property in business have different ways of being installed. According to the Real Property Act 1900 (NSW), real property involves all land, structures and equipment that are firmly attached and integrated on land for present and future use. The Georgia Real Estate Commission describes real estate as land, building on the land, all things attached to the ground or to the buildings and any interest existing, issuing or dependent on land or building15. On the other hand, personal property is not permanently fixed on land; it is movable and not intended for permanent utilization in the firm. Its intention is for enabling activities of the business. In this case, Bigdeal deals with the personal property because of the type of activity that it operates. Bigdeal is in the business of leasing or selling mainframe and wireless computer equipment to businesses. The business property is personal in nature because the items are intended to for sale or lease to other companies. Therefore, I would advise Bigdeal to install the material temporarily to allow it to be movable at the time of contract of sale. b. Would you give different advice in relation to a purchaser or leasee of Bigdeal equipment? The buyer of Bigdeal equipment attains a different type of ownership for the equipment. The scenario of purchasing the computer tools gives a different intention to the use of personal property. In this regard, I would give different advice to the purchaser of Bigdeal equipment. c. If so what, if not why not? The reason as to why I would give different advice to the purchaser of Bigdeal equipment is because the type of property has changed from personal property of Bigdeal to a real ownership of the buyer. The buyer will use the property permanently in his business or carry out business. The equipment bought by the buyer is not for moving or resale. Therefore, it is real property whose installation requires permanent fitting or fixing of the equipment on the wall or land for long term use in the business. The purchaser needs to understand that personal property is differentiated from real estate in the manner and extent in which it is annexed to land, the use property and the intention of the asset owner16. The purchaser will embed in the equipment in his or her business. Therefore, the computers and other materials will permanently rest on the land and require permanent installation. The annexed material is real property, and it is installed permanently. It has become an integral part of the building and designed for use with asset. Essentially, the equipment as real property requires attachment to the actual property for it to function. The machines will become a structure in the business after purchasing, and it requires permanent attachment or installation on the actual property of the firm. Part 2 1) “In the 21st century the definition of ‘land’ in s.21 of the Interpretation Act 1987 (NSW) and s.2B of the Acts Interpretation Act 1901 (Cth) no longer has any real meaning because its language and concepts are now irrelevant and outdated.” Discuss in approximately 350 words with particular reference to Australian native title law. The Interpretation Act 1987 (NSW) and s.2B of the Acts Interpretation Act 1901 (Cth), has a common definition of land. As per these Acts, land “includes tenements and hereditaments, messuages, corporeal and incorporeal of any tenure or description, and whatever may be the estate or interest in them”17 The definition of land by these two Acts no longer has any meaning because of the language and concepts that are now irrelevant and outdated. When defining land under the Australian native title law, the terms used in the Interpretation Act 1987 (NSW) and s.2B of the Acts Interpretation Act 1901 (Cth), are not recognized. In fact, the Australian Native Title law does not use any of the terms employed by the Acts in the definition of land. The words are not relevant as per the native title law. The reason is that the language used in defining land in the two Acts requires interpretation or a deeper explanation for a person to understand. The words “tenements, hereditaments, messuages, corporeal, incorporeal, tenure and estate are no longer used when defining land. The Australian native title law is the Native Title Act of 1993. Section 253 of the Native Title Act 1993 defines land as including “the airspace over, or subsoil under, land but does not include waters. In this regard, the terms used in describing land in the Australian native title law are clear, easy to understand and have relevant and direct meaning to what entails land18. Compared to the definition of land in the Interpretation Act 1987 (NSW) and s.2B of the Acts Interpretation Act 1901 (Cth), the Australian native law provides a refined meaning to what land is by including subsoil under land and airspace over land as consisting of land. The extension of defining water gives a precise definition of land as not including gravel and bed under, airspace over waters including rivers, lakes, streams and seas. The area between high and low water is not land. The two Acts seem to be limited to the definition land when refereeing to the Australian native law. Their language is not relevant to the definition of land in the Australian indiginous law. 2) Discuss in approximately 350 words why and how prior fraud affects title to real property. In the Real Property Act 1900 (NSW), fraud is the involvement of a fictitious person. In the case of Assets Co Ltd v Mere Roihi, a fraudulent act is one that involves corruption, bribery, and dishonesty involvements19. Prior fraud affects title to real property because the bona fide proprietor of land whose title is fraudulent cannot sell, use or transfer the property using his or her title until there is a clarification of the title. Through fraud, the purchaser of land is prevented from any action with the property because the fraudulent deed clouds it. The title of real property is affected by prior fraud in different ways. The fraud invalidates the title of the fraudulent purchase for the value of land. It impeaches the registered title of the proprietor to the land. Fraud affects the interest of the person acquiring land by fraudulent means. Such a person is said to have a defeasible interest. In sec 42 and 43 of the Real Property Act 1900 (NSW), the title of a person with a defeasible interest in land can be set aside after establishing the defeasibility of the interest. In such a case, the bona fide proprietor must have acquired the interest through fraudulent implications personally or an agent. In sec 43 of the Real Property Act 1900, the owner’s title to land is not paramount when acquired by fraud. The title of the fraudster is affected by the proceedings for the recovery or possession of land that lies against the registered proprietor to the land20. However, prior fraud to produce a fraudulent deed is void and does not have any effect on the real title of the owner to the property21. The bona fide purchaser has no protection by the recording a fraudulent title deed in the Public Records. In the case of Wright v. Blocker relying on the title of a fraudulent deed has the effect of causing loss to the bona fide purchaser after relying on it22. However, it does not affect the right owner of the land. References Arizona Department of Revenue, 2014, Personal Property Manual, State of Arizona, p.1.5. Dixon, M, 2005, Modern Land Law, Chapter 6: Leases, Psychology Press, p.251 Drabsch, T, 2004, Indigenous Australians and Land in New South Wales, NSW Parliamentary Library Research Service, Briefing Paper No 9/04, p.39. Fambrough, J, 2008, Encroachments: Unwelcome Invaders, Real Estate Center, Vol. 9, No. 3. Georgia Real Estate Commission, 2014, Chapter 14: Real Property and Personal Property, p.1. Jimerson, C, 2014, Identifying and Resolving Common Title Defect Issues in Florida, Real Estate Law - Available from Moore, G, 2005, Essential Real Property, Psychology Press, p.102. New South Wales Consolidated Acts, Interpretation Act 1987 - Sec 21, and Interpretation Act 1901 (Cth) s..2B Thomson Reuters, 2016, What Can You Do About an Encroachment? Find Law, p.1, Available from < http://realestate.findlaw.com/neighbors/what-can-you-do-about-an-encroachment.html> Spi-Edgeworth et al., 2012, Chapter 5: Statutory Regulation of Interests in Land: The Deeds Registration and Torrens Systems, Sackville and Neave Australian Property Law, 9th Edition, p.506. The High Court of Australia, Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) Acts Conveyancing Act 1919 (NSW) Encroachment of Buildings Act 1922 Interpretation Act 1901 (Cth), Interpretation Act 1987 (NSW) Native Title Act 1993 Native Title Amendment Act 1998 (Cth) Real Property Act 1900 (NSW Cases Allen v. Virginia Hill Water Supply Corp, [609] S.W. 2d 633 Assets Co Ltd v Mere Roihi [1905] AC 176 Delehunt v Carmody (1986) 68 ALR 283 Frazer v Waller [1967] AC 569 (PC). Harvey v Pratt [1965] 1 WLR 1025 Marsden v Campbell (1897), Stanhill Pty Ltd v Jackson (2005) 12 VR 224 Wright v., Blocker 198 So.88 (1940) Read More