LLB301 REAL PROPERTY LAW The exam this year is worth 50% of the mark for the unit. This means it is different from previous years, where it was only worth 40%. (The change is because assignment 2 this year was worth 30%, compared to 40% in previous years). So bear this change in mind when looking at past exam papers. The exam will be focussed on topics from week 7 to week 12: · Priorities and Caveats · Leases · Easements · Mortgages Although the central focus will be on the content from these weeks, you will have to use some knowledge from earlier weeks. In particular, you need to be familiar with the Torrens system as covered in weeks 5 and 6, because all of the topics from weeks 7-12 are affected by the Torrens system. There will be four questions on the exam, each will be compulsory. There will be one question worth 20 marks, and three questions worth 10 marks each. The 20 mark question will be on leases. Each question is a problem question. There are no essay questions. 1
WEEK 7: PRIORITIES & CAVEATS S 177 - 198 LTA · Instruments affecting a lot, including instruments affecting or creating an interest in the lot, must be registered in the order which they are lodged. · Registered instruments have priority according to when each of them was lodged and not according to when each was executed. Unregistered vs Registered Interests The general rule is that: · Registered = legal · Unregistered = equitable See section 181, 182 LTA · It is possible, for example, to have equitable mortgages, leases and interests · NB: legal interests are good against the whole words. Equitable rights operate in personam and are good against all persons except for a BFP4VW/ON Competing Equitable interests · Multiple equitable interests created relating to land . Consider the case for eg. Breskvar v Wall o Breskvars - Petri - Wall - Alban Pty Ltd . When the 'music stops' the Curt must decide 'who has the better equity' · The courts have looked at: o Type of equity held by the parties Timing of creation of rights o Notice by one party of the other's interest o Disentitling conduct on behalf of the parties o A broader range of equitable considerations (Heid v Reliance Finance, Forsyth v Blundell) The (in)equality of equities ... · (1) equitable estate (eg. A right to specifically recover the property) · (2) a 'mere' equity (a 'chose in action') eg. A procedural right to have a sale set aside (for eg. Fraud) · (3) personal equity (a contractual right which is person between parties) See Latec v Investments v Hotel Terrigal 1965 HCA 17 Where the equites are equal 2
· Where the equities are equal (eg. They are both equitable estates) the first in time generally prevails (See Latec v Investments v Hotel Terrigal; Abigail v Lapin) · Notice of prior interest may be sufficient to postpone the