(1) FUNDAMENTALS OF LAND OWNERSHIP

Question 1

fee simple =

Answer 1

exclusive possession forever

Question 2

life estate =

Answer 2

exclusive possession for duration of measuring life

Question 3

lease =

Answer 3

exclusive possession for certain term

Question 4

easement =

Answer 4

a right, accommodating dominant land to use, or restrain use of servient land in a manner not inconsistent with servient owner’s continuing ownership

Question 5

profit a prendre =

Answer 5

right to enter servient land and remove the soil/its natural produce

Question 6

What are the 5 types of interests for land ownership known to the law?

Answer 6

1) fee simple
2) life estate
3) lease
4) easement
5) profit a prendre
6) mortgage

Question 7

Formal requirements - what do you have to consider?

Answer 7

whether a particular form of words is required/how that intention is manifested

–> are words of limitation or purchase used?

Question 8

General law priority rules: legal interests

Answer 8

prior legal interest has priority later legal

reflects nemo dat quod non habet principle - can’t convey what you don’t have anymore

Question 9

General law priority rules: earlier legal vs later equitable?

Answer 9

earlier legal (if bona fide + hasn't contributed to subsequent creation of equitable estate) has priority over later equitable interest 
(priority only conferred to the extent of the interest)

Question 10

General law priority rules: earlier equitable vs later legal interest?

Answer 10

prior equitable interest has priority over later legal interest (this legal interest is postponed)

Question 11

General law priority rules: equitable

Answer 11

prior equitable has priority over later equitable

Question 12

General law priority rules: mere equities vs equitable?

Answer 12

in principle higher equitable interest will prevail over a mere equity (even if mere equity is the prior interest)

Question 13

basic priority rule

Answer 13

a bona fide purchaser of the legal estate for value without notice
will take priority over the interest of an equitable interest holder

Question 14

is Nemo dat applicable to equitable interests?

Answer 14

NO

as title and possession not conferred

Question 15

types of notice

Answer 15

(1) actual
(2) constructive
(3) imputed

s 164(1) Conveyancing Act

Question 16

you can only register proprietary interests that are

Answer 16

known to the law (Re Lehrer; Re Ridgeway)

Question 17

where a person holds the totality of ownership, it is

Answer 17

incorrect to ‘split’ the ownership into legal and equitable interests. The one owner does not have two estates (legal and equitable), it is all ‘absorbed into’ (Corin v Patton (1990) at 579) the legal estate.

Thus, a person cannot transfer to someone the bare legal fee simple whilst purporting to retain the equitable fee simple.

Question 18

where land is vested in trustees, what do beneficiaries do?

Answer 18

they compel the trustee to hold the legal estate in accordance with the obligations that equity imposes on them

Question 19

how are equitable interests vulnerable?

Answer 19

they’re vulnerable to the extent that remedies aren’t automatic but discretionary (as opposed to common law) and can be refused (ie if it would be unconscionable to grant the remedy)

Question 20

equitable interest of a purchaser under contract for sale of land?

Answer 20

on entry into the valid enforcable K for sale, E treats purchaser as ‘beneficial’ owner. The vendor is ‘trustee’ for the purchaesr’ (Lysaght v Edwards) as a constructive trust

Question 21

how is a K for the sale of land different from a conveyance/transfer?

Answer 21

it’s a promise to transfer the interest at some time AFTER the formation of the K

Question 22

The traditional position (has been doubted in Scott) that a purchaser under a specifically enforceable contract of sale has an equitable interest in the property capable of assignment was affirmed in

Answer 22

Fuentes v Bondi Beachside –> purchasers ‘interest’ is said to be dependent on the purchaser’s ability to obtain an order for SP of the contract (can be seen as the condition precedent for the acquisition of a proprietary interest by the purchaser)