Property A Frameworks

Extent of Land Questions

Questions will usually test to understanding on one of three topics:

To what extent do land rights exist above land? To what extent do land rights exist below land? How are land rights governed on water boundaries? Is something a fixture?

Above land

1. Is there an intrusion into airspace?2. Is the interference within a height which is necessary for the ordinary use and

enjoyment of the land? (Bernstein v Skyviews)3. Does it involve a crane? Examine the case law from Woolerton; KD Morris; Lang

Parade v Peluso4. Does it involve a sign? Consider Kelsen v Imperial Tobacco5. Scaffolding case? LJP v Howard Chia6. What is the appropriate remedy? Consider Davies v Bennison; Land Parade; KD

Morris

Below Land

NB: This is unlikely to be assessed, I think.

1. At Common Law, the owner has rights to all minerals, but not precious metals.2. Nowadays, it is regulated by various statutes, including Mineral Resources Act

(Qld) and Petroleum Act (Qld).

How are land rights governed on water boundaries?1. What is the position under the Water Act (Qld)?2. Is the doctrine of accretion relevant?3. Has the change been gradual and imperceptible? (AG v John Holt)4. And the product of natural processes? (Southern Theosophy) 5. That is to say, not the product of deliberate reclamation work (AG v John Holt cf

Verall v Nott)

FIXTURES***

1. If an item is a fixture, it becomes part of the land.

2. Attachment to land does not necessarily mean it becomes part of the land.

3. Whether something is a fixture depends entirely upon whether it was objectively (Anthony v Cth) intended to become one by the parties, looking to all of the circumstances. (Palumberi v Palumberi)

4. Whilst some cases have considered subjective intention (May v Ceedive) the better view is objective only (Hobson v Gorringe).

5. The courts have developed two tests that assist in determining the objective intention: Degree of Annexation, and Purpose of Annexation (Holland v Hodgson)

6. No test has primacy (NAB v Blacker)

7. Degree of Annexation 7.1. Attached by more than own weight then prima facie fixture; onus on person arguing

its not. (APA v Coroneo) 7.2. Attached only by weight then prima facie chattel; onus on person arguing it is. (APA

v Coroneo)7.3. The degree of annexation will be determined by how easily the item can be removed,

and any damage that may result (Caley v Rogers)

8. Purpose of Annexation8.1. Was it for the better use of the chattel as a chattel, or land as land? (Leigh v Taylor)8.2. Purely ornamental? (Leigh v Taylor)8.3. Integral part of the architecture? (D’Eyncourt)8.4. Prevailing community standards? (Hawkins v Farley; Palumberi v Palumberi; Reid v

Smith)8.5. Also, what was the intended time of affixation? (Coroneo)8.6. Nature of affixer e.g. tenant unlikely to intend fixation (Norton v Dashwood) because

fixtures become land owners property (Bain v Brand)

9. Consider whether any cases have analogous facts.9.1. Belgrave Nominees v Barlin-Scott Aircon: Aircon was attached to plumbing, to

brackets connected to walls, connected to electricity. Was made up of many units. Court considered the system as a whole and not by considering the things individually.

9.2. Reid v Smith: Queenslander built on land under own weight a fixture because the contract intended it to be, plus common for houses to be built this way in Queensland.

9.3. Hawkins v Farley: Dishwasher that was easily removable was a fixture because cupboards had been custom designed to accommodate it. Also shed a fixture.

9.4. Park v Lasrado: Chandelier a chattel9.5. Commissioner for Main Roads v North Shore Gas: Underground Pipes not chattels9.6. Hobson v Gorringe: Hirer can remove fixture if installments not made

10. On balance, it seems as if ___ is a fixture/chattel.

11. What is the significance of the item being or not being part of the land? – Cannot be removed without consent, landowner can remove before contract of sale entered (s 239). Fixtures for mortgage become part of security – no removal)

MISTAKE OF TITLE***

1. At common law, there is no remedy without knowledge or acquiescence (Brand v Chris Building)

2. However this has been modified by statute (s 195 -198 PLA)

3. Only improver or improvee can apply to the court. (s 198 PLA)

4. Must be a ‘lasting improvement’ made under a ‘genuine belief’ (s 196 PLA)4.1. “Genuine Belief” is a subjective question of fact (Ex parte Karynette). 4.2. Genuine belief/lasting improvement have their ordinary meaning – discuss facts

5. On the facts, it seems as if … does/does not satisfy the requirements of s 196 PLA.

6. Consider the flexibility of relief which can be given (s 197 PLA)

7. Cannot use s 197 to give compensation to a purchaser where purchaser bought property that they thought included improvements, but in actual fact the vendor made improvements under a mistake and the land that the improvements are on is not the purchased land (Newman v Powter) Cannot do this because not consistent with purpose of the provisions.

8. Specifically talk about the decision in Re Verdugo as demonstrating the flexibility of remedies available to assist the mistaken improver

8.1. Re Verdugo: Lot purchased because advertised as adjacent lot. Building started on the advertised adjacent. Court offered choice of remedies because neither party was at fault: 1) sell land at market value; 2) pay for improvements 3)execute mortgage for improvements.

9. Influenced by doctrine of fixture (Brand v Chris Building Society)

ENCROACHMENTS***

1. This area is dictated by statute (182-194 PLA)

2. Only the encroaching owner or adjacent owner (whose land is encroached (s 182)) can apply to court? (s 184 PLA) (builders etc can be joint) (192-194) compensation awarded against owner.

3. “Encroachment” means encroachment by a building (including overhang) (s 182 definition)

4. Encroachment must cross boundary otherwise mistake (Amatek Ltd v Googoorewon)

5. “Building” means substantial building of permanent character, including wall (s 182 defines)5.1. Elements from Van Achterberg: The intention of the legislature is clear in my view,

5.1.1. Man-made with the building materials of the day, 5.1.2. Substantial and lasting character,5.1.3. Made for domestic or industrial purposes5.1.4. The legal rights of those affected may be best adjusted by leaving it in place

rather than by ordering its removal on the ground that it is merely a trespassing encroachment upon the land of another.

6. Consider analogous cases:6.1. Weld-mesh fence in 2ft concrete foundations = building (Van Achterberg)6.2. Tiling around a pool, a pumphouse = not a building (Cuthbert v Hardie)6.3. Grass tennis court and wire tennis fence = not a building (Uechetriz v Watson)6.4. Terracotta paving = not a building (Cantamessa v Sanderson)6.5. Substantial concrete driveway = building (Clarke v Wilkie)

7. Conclude on each potential encroachment – is it a building?

8. What is the likely remedy? Orders as the court deems just, including compensation, conveyance, removal (s 185 PLA)8.1. NB, conveyance does not equal redrawing the boundary (Talon v The Proprietors

Metropolitan Towers)

9. Court can have regard to the character of the encroaching building, and the loss that has or will be incurred by the adjacent owner, and the loss which would be suffered by the encroaching owner, and the circumstances of the encroachment. (185(2) PLA)

10. Value of compensation – minimum is the value of the land lost unless intentional or negligent (186 PLA)

11. Court can consider value of the land to adjacent owner, loss and damage through encroachment, the circumstances, when determining whether to exceed minimum (186(2) PLA).

ESTATES IN LAND

1. If land was transferred after 1 December 1975 the PLA applies.

PLA N/A2. Words of limitation must be correct for grant to be effective.

2.1. Fee-Simple: “To A and his/her heirs”2.2. Fee-Tail: “To A and the heirs of his/her body”2.3. Life Estate: “To A for life”

3. If the words of limitation for fee-simple are INCORRECT in ANY WAY then only a life estate will be transferred (unless the words create another freehold interest e.g. fee-tail).

4. Fee-tail is more flexible and provided heirs of body etc. are used it is sufficient. (Stiblo v MCC)

5. Fee-tail grants become fee-simple due to s 22 of PLA.

6. Inter Vivos transactions must strictly follow above words.

7. If the transferred by a will then the courts will look mainly to intent and not to form. (unlike inter vivos, the deceased cannot amend transaction)

PLA Applies8. Can grant either fee-simple or life estate (s19)

9. If unclear estate in fee-simple will be granted (s 29(1)).

CONTINGENT INTERESTS IN LAND

1. Whether grant of an estate is either determinable or conditional is a matter of construction.Determinable

1.1. If words such as “while” “during” “until” “for as long as”1.2. Event cannot be certain because then it would not be fee-simple1.3. If event is impossible then grant is absolute

Conditional1.4. If words such as “but if” “on condition that” “provided that” “if it happen that”1.5. If condition certain to be breached then not fee-simple.

2. If it is determinable then grantor retains a possibility of reverter i.e. property immediately transfers back on occurrence of determining event.

3. If conditional then right of re-entry upon breach or fulfillment of condition. Must enforce re-entry to get property back.

4. A conditional or determinable grant will be void if it substantially prevents alienation (Saliba v Saliba – only allowing alienation at substantial undervalue is substantial)

5. A conditional or determinable grant void if against public policy. Note the changing attitude towards extra marital co-habitation (Zapletel v Wright Andrews v Parker) [see examples of public policy]

6. If condition void then grant becomes absolute, if determinable event void then void grant. Because of this courts interpret conditional interests more strictly.

EXTINGUISHMENT UNDER THE NATIVE TITLE ACT***1. Native title cannot be extinguished contrary to the NTA (s 11(1))

2. Two things determine how native title is extinguished under the NTA: the date of the grant/act and the validity of the grant/act.

3. If a grant is made on or before 23/12/1996 (date of Wik) then go to Div 2,2A, 2B (confirmation/validation provisions), otherwise go to future act provisions Div 3 (s 228/s 232A/s 23B(1)/s 23F(1)).

4. Validity of grant determines whether to use confirmation or validation (S23B(2)(a), s 23F(2)(a))

5. If the grant occurred on or after 1st November 1975 (date of commencement of RDA) then prima facie invalid (s 10 RDA, Western Australia v Ward) go to validation provisions (Div 2/2A).

6. Confirmation (Div 2B)6.1. PEPA because:

6.1.1. Valid or validated by validation provisions (s 23B(2)(a))6.1.2. Grant made on or before 23/12/1996 (s 23B(2)(b))6.1.3. Is one of the listed types of grants (s 23B(2)(c))

6.1.3.1. Remember to refer to CL if ‘exclusive’ used in the list. (Ward)

6.2. If PEPA then native title is fully extinguished at time of grant (s23C)

6.3. If validated PEPA confirmation validation provisions do not exinguish. (Ward)

6.4. PNEPA because:6.4.1. Valid or validated by validation provisions (s 23F(2)(a))6.4.2. Grant made on or before 23/12/1996 (s 23F(2)(b))6.4.3. Non-exclusive Pastoral/Agricultural Lease [NOT MINING] (s 23F(2)(c))

6.4.3.1.Refer to CL to determine non-exclusivity. (Ward)

6.5. If PNEPA then native title extinguished to the extent as at common law, otherwise non-extinguishment principle applies. (s 23G(1))

6.6. If validated PNEPA by s 15(1)(a) then s 15(1)(a) prevails (s 23G(2))NB: s22B(a) the intermediate act equiv of s15(1)(a) only applies to exclusive pastoral/agricultural leases s232B(3)

6.7. If otherwise validated PNEPA then will no prevail over confirmation (s23G(3))

7. Validation (Div 2/2A)7.1. Past Act because:

7.1.1. An act (s 226)7.1.2. Before 1/7/93 for legislation and 1/1/1994 otherwise. (s 228)7.1.3. Invalid by s 10 RDA for acts attributable to states (s 109 CC); OR7.1.4. Invalid by s 51(xxxi) for unjust terms/compensation for acts attributable to Cth;

AND7.1.5.Would have been valid but for native title

7.2. If past act then law validated (s 14(1))

7.3. Category A – Total extinguishment (s 15(1)(a))Category B – Extinguishment to the extent of inconsistency (see CL) (s 15(1)(c))Category C/D – Non-extinguishment principle (s 15(1)(d), s 238)

7.4. If extinguishment occurs then there is a right to compensation calculated under div 5 (s 17/18)

7.5. Intermediate Act because:7.5.1. An act (s 226)7.5.2. Between 1/1/94 and 23/12/96 (inclusive) (s 232A)7.5.3. Invalid but would have been valid but for native title [as above] (232B(c)

7.6. If intermediate act then validated (s 22A)

7.7. Cat A – Total extinguishment (s 22B(a))(232B(3)(c)Cat B – Extinguished to extent of inconsistency(s 22B(c))Cat C and D – Non-extinguishment principle (s 22B(d))

7.8. If extinguishment occurs then there is a right to compensation calculated under division 5 (s 22D/22E) Cap on just terms as fee simple value

8. If NTA silent then look to common law.

COMMON LAW EXTINGUISHMENT***

1. Native title rights are fragile and therefore extinguishment is permanent i.e. no suspension at common law (Mabo; Fejo)

2. The seminal decision relating to common law extinguishment is Wik (pastoral leases exclusive possession?) which suggested a two limb test:2.1. Clear and plain intent2.2. Inconsistency of incidents

3. This test was later reduced to the inconsistency of incidents limb. (WA v Ward; WA v Brown)4. The inconsistency test reflects NT being a bundle of rights. (Ibid)

5. The Test as outlined in Brown5.1. Objectively identify nature of native title rights and rights granted

5.1.1.Can look to the exercise of the rights to correctly identify the nature and content of the rights but cannot use the exercise to determine the right itself.

5.2. Objectively compare two sets of rights for inconsistency5.2.1.Extinguishment not contingent upon exercise such that when the rights are

exercised they produce inconsistency. Exercise completely irrelevant.5.2.2. Absent a grant of exclusive possession, rights including to hunt and gather were

not necessarily inconsistent. (Wik, Ward, Brown)

6. It is well-established that a grant of fee simple will extinguish native title (Fejo)

7. Mining leases will not extinguish native title (WA v Ward)

8. Offshore native title rights are limited if they were previously exclusive, because they are inconsistent with common law public rights to fishing and navigation (Yarmirr)

9. No compensation under common law alone, but can get compensation via NTA, RDA, or Constitution

THE DOCTRINE OF PART PERFORMANCE***

1. The doctrine of part performance may permit the recognition of an equitable estate (lease/fee-simple) notwithstanding the requirements of legal estates to be in writing under the PLA.

2. Equitable part performance is unaffected by the requirements of the PLA (s 6(d))

3. As equity follows the law, courts are unwilling to use equity to subvert legislation. As such, courts in Australia have strictly enforced the requirements of part performance. (McBride v Sandiland)

4. Part performance looks to the acts of a party as evidence of the existence of the unwritten contract. Discuss the different acts that are relevant and how they fall within the test.

5. Are the acts, acts of part performance?5.1. The acts were done by the party seeking performance (Madison v Alderson)

5.2. It would be a fraud (unconscionable) to hide behind the statute. This requires acquiescence (i.e not in writing therefore invalid) (Regents v Millet)

5.3. The acts relied upon, as part performance must be unequivocally and in their own nature referable to some such agreement as that alleged. (Regent v Millett)

5.3.1.Acts must refer to contract generally of the type alleged, not just any contract (Regent v Millet)

5.3.2. Standard of proof is that beyond reasonable doubt, there was no other purpose for performing the acts that the contract. (McBride v Sandiland)

5.3.3.The act must be permitted under the general contract; not in preparation of the contract.

6. Having established they are acts of part performance, consider the following.6.1. A binding agreement must be concluded (Gobblers v Stevens)

6.2. Terms of agreement proven by oral evidence

6.3. Capable of specific performanceThis requires a valid and binding agreement made for valuable consideration; damages be inadequate; that the party seeking enforcement is ready willing and able.

7. Once the test is satisfied the court will enforce the equities created under the contract and not the contract itself.

8. Whilst there have been some cases that question the standard of proof above (see South Coast Oils v Look Enterprises relying on Steadman v Steadman), recent cases affirm the beyond reasonable doubt test is still correct. (Khouri v Khouri, Dinh v Dang))

9. Entering into possession will usually demonstrate part performance (Regent v Millett)

10. Likewise, payment of rent is typically indicative of a contract relating to land. (McMahon v Ambrose)

11. If denying part performance, you should assert that the act was referable to some other authority (Regent v Millett)

CO-OWNERSHIP***

Legal Estate

1. Creation of co-ownership at law is a process of construction. (Robertson v Fraser)

2. Common law presumption for joint tenancy. (Wright v Gibbons)

3. JT/TIC can be created expressly, but notwithstanding that, TIC will be recognised if slightest indication of severance of JT e.g “in equal shares”; “share, and share alike”; “equally between”.

4. TIC created if any of the 4 unities absent4.1. Unity of Possession

Each entitled to possess the whole non-exclusively (common between JT and TIC)4.2. Unity of Interest

Same interest in nature, duration, and extent (e.g. lease for same period, fee-simple etc.)4.3. Unity of Time

Each co-owner’s interest was vested at same time (gifts under will for age are an exception)

4.4. Unity of TitleTitle must have same origin e.g. same conveyance/act/document/adverse possession.

5. TIC created absent the right of survivorship (Re Robertson)5.1. Simultaneous death see s 65 (youngest gets it all)5.2. Operates immediately on death, JT cannot be severed after death.

6. Courts will give weight to what is convenient and fair in the circumstances, even where words of severance are used (Re Barbour – if common then divided between 16 kids; Re Rose – beneficiaries under will were minors therefore difficult if tenancy in common)

7. Conclusion of legal estate

Equitable Estate

1. Equity leans against joint tenancy due to the right of survivorship being contrary to equity is equality. (Delahunt v Carmody)

2. Equity does not change the position at law. Equity merely makes it unconscionable for the parties to assert contrary to the position in equity.

3. Equity looks to the intention of the parties in light of all the circumstances, subject to the maxims. (Corin v Patton)

4. The slightest indication of a contrary intention is sufficient (Delahunt v Carmody)

5. There are three main cases where equity recognised tenancy in common contrary to CL but these are not rigidly prescribed (Malayan Credit v Jack Chia)

5.1. Purchase money provided in unequal shares unless advancement (Calverly v Green)5.2. Two mortgagees of a property hold as tenants in common (this is because mortgagees

have property until mortgagors finish paying the mortgage).5.3. Where land was purchased for a partnership (Lake v Craddock)

6. Conclusion of equitable estate, equity prevails over common law.

Modification by Statute

1. Disposition construed as creating TIC both in equity and law (s 35(1) and Delahunt v Carmody)

1.1. But only after commencement of PLA (1 Dec 1975) (s 35(4)

2. S 35(1) can be displaced by express JT (s 35(2)) or by construction (Hircock v Windsor Homes)

3. Disposition may be wholly or partly oral (35(5))3.1. But remember that a transfer of land will not be valid unless in writing [HOW DO

THESE SECTIONS INTERACT WITH S 11]

4. Where two people pay (un)equally but one gets title, s 35 still applies because the payer who doesn’t get title has a beneficial interest in the property held on resulting trust by the party with title. Whether unequal or equal payment, the parties are considered tenants in common (Delahunt v Carmody)

5. Partnerships not usually intended right of survivorship (business partners not family) (Spence v FCT)(s 35(3) PLA)

6. Where a merger of title occurs, then the parties become TIC in equity and at law and not JT contrary to Re Selous. (s 36 PLA)

6.1. In Re Selous, where co-owners held an equitable tenancy in common, and later acquired joint tenancy at law, they were held to be both joint tenants in equity and law because of an old rule

7. Land Title Act7.1. Must be registered either joint or common (s 56(1))

7.2. In absence of clear intent when registering, registrar must register as tenants in common. (PLA s 56(2))

Relationship

1. If there is a marriage or a de facto relationship then 1.1. Common intention of the parties may displace the presumption of TIC (Vedejs v

Public Trustee – de facto husband died intestate and no kin, held joint due to common intention)

1.2. Interest in property recognised if unconscionable not to (Baumgartner v Baumgartner)

Rights

1. Can an occupation fee be claimed?1.1. Each has a right to bring a stranger onto the property (Thrift v Thrift)

1.2. Each has a right to create a lease (but only of their own interest and not the others, e.g. the lease will be for exclusive possession of the property with the other co-owner) (Catanzariti v Whitehouse)

1.3. General Rule: No right to occupation fee from possessor where one co-owner exercises right to possession and the other does not. (Luke v Luke)

1.4. Exception 1: Where one party possesses the property and the other has been ousted (Pascoe v Swan)

1.4.1. If ousted then also trespass, damages/injunction available.1.4.2. Must be wrongful exclusion amounting to a denial of title and right to possession.

(Luke v Luke; Biviano v Natoli)1.4.3. Actual force unnecessary for ouster (Wilkinson v Haygarth)1.4.4. Changing locks sufficient for ouster (Hummelstad v Hicks; Beresford v Booth)1.4.5. Leaving as a result of violence/threats of violence is sufficient for ouster (Re

Thurgood; Dennis v MacDonald)1.4.6. Not ouster where co-owner is simply exercising their right to the property in a away

that is unpleasant or annoying for the other (Thrift v Thrift; Feguson v Miller)1.4.7. Saying get out once is not ouster (Cardinaels-Hooper v Tierney)1.4.8. Being asked to leave 4/5 times and threatening to call the police if the co-owner

returned is ouster (Re Thurgood)1.4.9. Saying “If you don’t like it you can leave” not ouster (Doitallevi v Doitallevi)1.4.10. No ouster by putting lock on gate (Jacobs v Seward)1.4.11. Taking out apprehended violence order (colloquially a restraining order) was not

ouster because exclusion was based on statutory power (biviano v natoli)1.4.12. Where it is unreasonable for a person to live together with the other co-owner e.g.

due to a relationship breakdown then ouster (Callow v Rupchev)

1.5. Exception 2: Agreement to pay rent (Cowper v Fletcher)

1.6. Exception 3: Where one party claims compensation for improvements, occupation fee can be set off against claim. (Teasdale v Sanderson)

1.7. Quantum of Compensation1.7.1.Proportion of market value of rent depending on extent of interest in the property

e.g. half, quarter etc. (Biviano v Natoli) 1.7.2.Can be modified by how many days a week a person occupies the premises etc

(Ryan v Dries)

2. Can rental from third party and profits be claimed?2.1. General Rule: profits/rent to are to be divided in just or proportionate share according to

their interest in property (s 43(1))

2.2. Exception 1: Agreement otherwise

2.3. Exception 2: Where income is largely from capital, work and skill of co-owner then no liability to compensate other co-owner. This is of course subject to occupation rent see above (Henderson v Eason).

2.4. Exception 3: Combination of rent and own work, then subject to general rule but allowances for labour etc. (Squire v Rogers)

2.5. Exception 4: Account of profits may be ordered on sale or partition (38, 42(b))

3. Can contribution for improvements/repairs be claimed?3.1. General Rule: A co-owner is NOT required to pay compensation to the other co-owner, if

other co-owner improves/repairs the land even if repairs reasonable (Leigh v Dickenson/Foregeard v Shanahan).

3.2. Exception 1: Agreement otherwise (Leigh v Dickenson)3.3. Exception 2: If joint/common obligations to make improvements/repair, but are carried

out only by one party then compensation payable subject to occupation rent (Leigh v Dickenson)

3.4. Exception 3: If co-ownership ended other than by party e.g. partition then allowance for improvements unless gifted (Brickwood v Young)

3.5. If repairs have increased value beyond normal repairs then go to improvements (Foregeard)

3.6. Joint Obligations3.6.1.Foregard v Shanahan is the leading case on this.3.6.2.Where no exclusion of one co-owner an occupation fee may be charged in

respect of joint debts (mortgage, water and council rates), but these arise out of joint obligation to pay for these expenses (Foregard v Shanahan)

3.6.3.Rates constitute a joint obligation (Scapinello)3.6.4.Anything required by a mortgage will be a joint debt (Scapinello)3.6.5.Outgoings such as pest control, insurance and the like, despite adding value, as

neither improvements nor joint obligations, cannot be the subject of an occupation fee (Foregard v Shanahan)

3.7. Quantum of Compensation is equal to the lesser of:3.7.1. The value expensed in improving the property; OR3.7.2. The increase in value. (Brickwood; Squire v Rogers; Boulter v Boulter)

Unless the property has decreased due to expenditure then the ‘improver’ is liable for the deterioration. (Marriott v Franklin)

Subject to occupation rent above (McMahon v Public Curator)

Termination

1. Conversion to Severalty – Survivorship exercised/all tenants agree to sell to one person

2. Severance 2.1. Alienation in law or equity severs JT (Corin v Patton)

2.1.1.Note that when a property is sold, it there is no severance until proceeds of sale are distributed (Re Allingham).

2.1.2.Alienation by gift sufficient to sever (Corin v Patton)2.1.3.Alienation by cross transfer between 2/3 parties sufficient creates TIC for all

(Wright v Gibbons)2.1.4.Transfer from A to X on trust for B (A and B joint) then severed (Corin v Patton)2.1.5.Granting lease to third party not severance (Frieze v Unger)2.1.6.Granting mortgage severs because transfers property to bank (Guthrie v ANZ)2.1.7.Bankruptcy severs JT (re weber)2.1.8.Severance by alienation always creates TIC in 1/number of tenant shares2.1.9.Registered transfer executed by you (even if transferring to yourself) severs joint

tenancy provided notice given to other joint tenants (s59 LTA, Lennon v Bell)2.1.9.1. Problems where transfer is signed but not registered and party dies.

a) Have not yet carried out instructions to prepare transferb) Have prepared transfer but not served/lodgedc) Transfer served and lodged pending registration

2.1.9.2. In a) and b) no severance. Only in c) severs (McCoy v Estate of Caeli). 2.1.9.3. If c) then surviving JT can get injunction against registration after lodgment

to prevent severance (McCoy v Estate of Caeli).

2.2. A specifically enforceable agreement will sever.2.2.1. Between all tenants (Williams v Hensman)2.2.2. Usually needs to be in writing (Hall v Public Trust cf. Brugess Rawnsley where

held oral was sufficient)2.2.3.Agreement cannot be repudiated; severance final at date of agreement (Abela v

Public trustee)

2.3. Course of conduct will sever joint tenancy (Sprott v Harper)2.3.1. Court must look to the objective common intention of all parties (Sprott v

Harper)2.3.2. If agreement not complete then the negotiations for the agreement may

constitute a course of dealing. (Slater v Slater)2.3.3.Unilateral declaration to sever by alienation not severance (Corin v Patton)2.3.4. “Unconcluded negotiations for a matrimonial property settlement which cover

the matrimonial home and which has not progressed to any significant extent” was not a course of dealing sufficient for severance. (Lennon v Bell)

2.3.5.Nowadays, given how easy it is to sever unilaterally, the view that should be preferred is that in the absence of agreement, the JT remains in tact (Saleeba v Wilke).

3. Killing3.1. Murder does not prevent survivorship operating (Re Thorp)3.2. A person cannot benefit from his/her own crime (Cleaver v Mutual Reserve)3.3. Equity imposes a constructive trust on the murderer’s property to the extent that the

murderer has benefitted (Re Thorp)3.4. If convicted of murder/manslaughter constructive trust imposed (Re Stone)

4. Merger4.1. If A and B are joint life tenants then if A buys the fee simple then the unity of interest

will fail and joint tenancy is severed (Wiscots Case)

Partition/Sale under ss 37 - 42

1. To sever co-ownership this way, must make an application under s 38(1)

2. Determine the share of the property2.1. Must be in possession and co-ownership exist at date of application2.2. A lease is not an encumbrance (Re Marcellos)

3. Partition or Sale?3.1. A court may choose to partition instead of sell (s 38(4)3.2. The normal remedy is now considered to be sale. To get partition, need to show it’s in

majority co-owner’s interests (Pannizutti v Trask). 3.3. For sale, held by trustees under 37A3.4. For partition, division to be effected by trustees under 37B3.5. If the parties have specifically contemplated partition or sale, then it may be that the

court can refuse an application for sale under 38, but only where the PLA has specifically been contemplated (Permanent Trustees v Coral Sea Resort valid restriction on sale whereas Nullagine v WA Club was only a restriction on selling individual interest.)

3.6. Can get partition if it is more objectively beneficial for the majority of the co-owners (economically, emotionally etc) than sale. (pannizutti v trask)

4. The party seeking the partition/sale bears the onus of evidence (pannizutti v trask)

5. An agreement can prevent partition/sale, but if it limits alienation to severely then it will be void for public policy. (Nullagine v WA Club)

Commercial LeasesIs there a valid lease?1. For X’s interest to be a lease cf. license, then the interest must grant exclusive possession,

have certainty of duration, and be created properly either in law or equity. (Radaich v Smith; Prudential Assurance v London Residuary Body; PLA 6-12, 59)

2. Exclusive Possession2.1. The question is whether X is entitled to exclusive possession (Q of Law) and not

whether X actually has exclusive possession (Q of fact)

2.2. In answering this question of law courts look to substance and not form. The parties cannot change the nature of the grant by giving it another label (Radaich v Smith)

2.3. Determining exclusive possession requires examination of facts. (Radaich v Smith)2.3.1.[Go through clause by clause, or fact by fact.] 2.3.2.Examples of facts + cases

2.4. Exclusive possession alone is sufficient. (Radaich v Smith cf. Isaac v Hotel de Paris)

2.5. If unclear from the document whether there is exclusive possession, it is possible to rely on express statements of intention in the document. (Hamilton Island v Croycom)

2.6. Conclusion whether lease or license.

3. Certainty of Duration3.1. If X’s lease is a tenancy at will, tenancy at sufferance, or life tenancy then this does

not apply. (Greco v Swinburn)

3.2. Otherwise, X’s least must have a certain start and end date lest it be void for uncertainty.

3.3. Investigate the commencement of X’s lease.3.3.1.Commencement may be implied by date of entry (Jopling v Jopling)3.3.2.Reasonable time commencement insufficient (Harvey v Pratt)3.3.3.Commencement date must be sufficiently certain or capable of being certain

before lease takes effect (Harvey v Pratt)

3.4. Investigation end of X’s lease.3.4.1.If duration not explicit then the duration must be ascertainable from a collateral

event or matter prior to commencement. (Charles Clay v British Rail Board)3.4.2.“Duration of the war” and “until the council widens the road” are insufficient

(Prudential Assiurance v London Resduary Body)3.4.3. Periodic tenancies are certain until renewal.

3.5. If uncertain duration then imply a tenancy-at-will below (s129(1) Dockrill v Cavanagh)

3.6. Conclusion whether sufficiently certain.

4. What type of tenancy created?4.1. Fixed Period – no notice required, ends when period ends.

4.2. Periodic – minimum 1 cycle expiring at end of cycle notice required (s 133, 134, 136) (Turner v York Motors)

4.3. Yearly – minimum 6 months expiring at end of cycle notice required (s 129, 135) (Moore v Dimond)

4.4. At Will – Creation by express/implied consent (e.g. paying rent Turner v York Motors)Notice must be reasonable - usually a month but depends on facts (s 129, 137 PLA)

5. Proper Creation5.1. The formalities under the PLA determine whether a lease is legal or equitable.

5.2. Legal Lease5.2.1. Term > 3 years then must be written and signed by lessor (s10,11(1)(a), 12(2))5.2.2. Term < 3 years (inc. periodic) then may be wholly/partly oral if it “takes effect

in possession” (s 12(2)) 5.2.2.1. “Takes affect in possession” means lease must commence on same day it is

created, and lessee must be in possession (Abjornson v Urban Newspapers)5.2.3. Must be registered (s 181 LTA)

5.3. Effect of non-compliance with legal requirements5.3.1. X’s lease is void at law.5.3.2. X will under an implied yearly tenancy at common law where X has entered into

possession and pays rent. 5.3.3.The duration is ‘uncertain’ because the lease is void (Dockrill v Cavanagh)5.3.4.If X does have an implied yearly tenancy then it will become a tenancy at will

terminable with 1 month notice under the PLA (s 129(1))5.3.5.The implied tenancy is enforceable because based on original (written) lease

(s11)

5.4. Equitable Lease5.4.1.Agreement to Lease (Walsh v Lonsdale; Chan v Cresden)

5.4.1.1. Written and signed – equity follows the law(s 11/59)5.4.1.2. Specific Performance

5.4.1.2.1. Specific performance is used broadly to mean any equitable remedy (Stern v McArthur)

5.4.1.2.2. Consideration/ binding contract of essential terms not prev. terminated

5.4.1.2.3. SP only avail where damages inadequate, and party ready and willing to perform. Subject to the maxims.

5.4.1.2.4. SP defences

5.4.2.The doctrine of part performance can recognise a lease in equity. [see above]

5.5. Effect of non-compliance with equitable requirements5.5.1. No lease, therefore if legal lease void then no remedies.

What are the contents of the lease?

Landlords’ Covenants1. For quiet enjoyment - (common law implication)

1.1. Landlord not to interfere with peaceable enjoyment of land (Malzy v Eichholz)1.1.1. Third party interferences will not breach unless landlord can control them

(Peden v Bortolazzo; Aussie traveller)1.2. Requires physical rather than economic interference (Aussie Traveller v Marklea)

2. Not to derogate from grant (common law implication) 2.1. Not to interfere with or do anything inconsistent with the purposes for which the lease

was granted (Aldin v Latimer Clark). 2.2. Interference must be physical not purely economic (Port v Griffith; Aussie Traveller)

3. Covenant to maintain premises in state reasonably fit for human habitation for a short term lease if it is commercial (s 106(1)(a), City of Subiaco v Heytesbury)

Tenants’ Covenants1. Unless express, covenant to pay rent implied by statute (s 105(1)(a) PLA)

2. To repair 105(1)(b), 106(1)(b)2.1. Long term

2.1.1.Can contract out (105(1) “subject to provisions of lease”)2.1.2.Maintain in good and tenantable repair (Proudfoot v Hart)2.1.3.Referable to beginning of a lease (s 105(1)(b))2.1.4.Tenants are not liable to repair reasonable wear & tear, but must notify landlord

and act to avoid consequential damage e.g. leaky roof causes flood (Haskell v Marlow)

2.1.5.2.1.6.Quantum of damages for breach of covenant limited to loss of value of premises.

(s 112)

2.2. Where repair on Landlord/Care in short term lease (106(1)(b))2.2.1.Cannot contract out (106(2))2.2.2. S106(1)(b)(i): Care in the manner of a reasonable tenant (To clean/maintenance

cf. repair – Warren v Keen)2.2.3.S 106(1)(b)(ii) To repair any damage done by the tenant or guests (not willfully

or negligently damage – Warren v Keen)

3. Implied powers of landlord under s 107 (unless varied)3.1. Enter and view3.2. Enter and repair3.3. Enter and act in accordance with public authority3.4. Enter and re-take possession if rent in arrears 1 month or breach of covenant for 2

months.

4. Against assignment4.1. If lease is silent then lessee can assign, but usually there will be a covenant preventing

assignment without LL’s consent (cov.15 of Sch 3)

4.2. If this covenant is included then s 121 enlivened and this section cannot be excluded.

4.3. Once enlivened tenant must seek consent of LL (by properly communicating) before assigning. If they do not then it is a breach of covenant and the lease can be forfeited even if a refusal of consent would have been unreasonable (Tamscoe v Franklins)

4.4. Any refusal of consent must be reasonable (s 121 PLA)4.4.1.Question of fact, onus on lessee (Provident Capital v Zone Developments)

4.4.2.Initially a strict test was applied (Houlder v Gibbs)4.4.2.1. Personality (ability to pay rent/previous business experience)4.4.2.2. Future use (even if such use allowed under original lease)

4.4.3.Later a more liberal test (J A McBeath v Jenkins)4.4.3.1. Landlord’s property interests damaged e.g. if the assignment would limit

the lessor’s ability to lease later on (Pimms v Tallow Chalders)4.4.3.2. Refusal cannot be for a collateral purpose wholly inconsistent with the

original lease e.g. if refusal based on wanting to lease with assignee at higher rent (McBeath) or if mandating enviro regulations lest deportation from island that are inconsistent with lease covenants (Boss v Hamilton)

4.4.3.3. Collateral purpose alone insufficient, needs inconsistency with lease (Tamsco v Franklins)

4.4.3.4. Not enough to HAVE reasonable grounds, must actually rely on them (JA McBeath)

4.4.3.5. Withholding information about assignee by lessee will make refusal reasonable (Daventry Holdings v Bacalakis)

4.4.3.6. Determination must be made in reasonable time lest unreasonable (Provident)

4.4.3.7. Failure to provide reasons not fatal, but may lead to inference that refusal was capricious (Secured Income v St Martins)

4.4.3.8. Can rely on info discovered after refusal (Secured Income v St Martins)

4.4.4.If found to be unreasonable then no damages etc. just able to assign (Daventry)

1. Not to waste (damage property s 104)2. Yield up possession at end of lease (105(1)(b))

If There Is An Assignment

1. Assignment must be written and signed (s 11)

2. The assignment is not void but it is a breach of lease (Parker v Jones)

3. For which the lease will be liable to forfeiture subject to notice being served according to s 124 to assignee.

4. If forfeited then the assignment will cease. (Massart v Blight)

5. If lease assigned, only covenants relating to the land will transfer (Spencer’s Case)

6. Lessor cannot enforce covenants against assignee unless legal lease and legal assignment (Gumland)

7. But lessor can enforce covenants against assignor (Simmons v Lee) of which the assignee must indemnify the assignor (Moule v Garret)

8. Deed of covenant will allow lessor to enforce covenants against assignee (Sandhurst v ACC)

9. If there is a sale of reversion then lessee’s covenants pass to the buyer (s 53, 117, 118)

Determination

1. Effluxion – expiry of term2. Notice

2.1. Simply give notice to quit under periodic tenancy for the relevant cycle (s130-136)

2.2. Termination of yearly tenancies requires 6 months notice under common law (now embodied in s135), but s 129 abolishes yearly tenancy and replaces with tenancy at will determinable at will (one month’s notice).

3. Surrender – consensual ending between parties before term s 113

Landlord Remedies - Forfeiture1. 107(1)(d) – right to forfeit implied in every lease unless contracted out

2. Must be in arrears for 1 month, or breach of covenant for 2.

3. Issue notice under s 124 if lease longer than 1 year (s 124(6)(c))

4. 124 cannot be contracted out (s124(9))

5. Notice Requirements5.1. Must state nature of breach (s124(1)(a))5.2. Must request breach to be remedied if possible (s124(1)(b))5.3. Must request compensation if being sought (s124(1)(c))5.4. Allow a reasonable time to remedy (14 days for arrears, up to 2/3 months if something

significant) (but not necessary if unremediable breach Rugby School v Tannahill; Rugby is the preferable view to Glass v Kencakes)

6. Then, if not remedied: re-enter6.1. Must make clear unequivocal statement Ioral/written) of exercising re-entry (Re

Whelan)6.2. Peaceable re-entry only if no resistance by tenant otherwise need court (McIntosh)6.3. Commencing court order (Moore v Ullcoats but note reason for failure in that case)

7. Failure to meet requirements will mean notice has to be re-issued (Re Taylor)

8. Forfeiture results in damages being available only up until date of forfeiture.

Defence to Landlord Remedy - Relief against forfeiture

1. A court has discretion to award relief to the tenant against forfeiture (s 124(2))

2. May not be able to use this doctrine if repudiation based on contract (Gumland)

3. Generally a court will allow relief where breach remedies and tenant has intention to comply with lease in future.

4. If assigned then the relief should be brought by the assignee. (Ladies Sanctuary v Parramatta)

5. Breach of Rent Covenant5.1. Generally a court will allow relief where rent/costs are paid or will be paid (Gill v

Lewis)5.2. Exception 1 – History of non-payment (Jam Factory v Sunny Paradise) or 5.3. Exception 2 – Immoral use (Rugby School v Tannahill)5.4. Exception 3 –If they do something which hurts the landlord, or the value of the land,

e.g. storing explosives on land so that insurance impossible, then the court will refuse to exercise its discretion (Stieper v Deviot)

6. Breach of Covenant other than rent6.1. No general rule6.2. Things which weigh towards relief

6.2.1.Breach of covenant did not hurt value of the property because the value of premises had not decreased despite the old lady’s habitual (Central Estates v Woolgar (No 2))

6.2.1.1. Onus on landlord to prove devaluation (Glass v Kencakes)6.2.2.Minor breach easily rectified (Platt v Ong)6.2.3.Subject to equitable maxims because equitable discretion.

Landlord Remedies – Damages and Repudiation

1. Despite historically contractual principles not applying to leases, it is now the position that they do apply to leases. (Shevill v BLB)

2. Landlord can get damages for breach of covenant due to breach of contract. (Note causation and loss etc. for damages)

3. Repudiation occurs where a party evinces an intention not to be bound to perform contract or asserts only to perform contract in a manner inconsistent with their contractual obligations. (Gumland; Tabali) This can also be evidenced by a breach of an essential term or a breach of a fundamental term. (Shevill)

3.1. Breach of Essential Term = essential/fundamental for performance of contract (Shevill)3.1.1.Can contract an essential term (Shevill; Gumland)

3.2. Fundamental Breach = goes to root of contract, breach makes commercial performance impossible or deprives the non-breaching party of substantially the whole benefit of the contract. (Tabali)

3.3. A combination of breaches (even if each alone insufficient for fundamental breach /breach of essential/ repudiation) can, together, amount to repudiation or fundamental breach (Tabali)

4. Repudiation alone does not end contract. Repudiation must be accepted by the non-repudiating and innocent (i.e. not in breach themselves) party.

4.1. Re-letting can be acceptance even if it means a surrender of lease at law (Wood Fact)4.2. But such a surrender could occur if purported acceptance of repudation but no actual

repudiation – in which case no damages etc. (Wood Factory)

5. Courts will recognise loss of bargain damages given repudiation (Tabali; Wood Factory)

6. Failure to pay rent not usually fundamental/essential/repudiate (Wood Factory)

7. Duty to mitigate loss if claiming loss of bargain i.e. only gets loss of bargain if you try unsuccessfully to get new tenant (Gumland).

8. No 124 notice required if exercising re-entry based on repudiation (Marshall v Snowy River) (Apriaden v Seacrest) But should serve the notice anyway just in case because this is uncertain.