Acquistion and Transfer of Proprietary Interests

Question 1

What are the formalities required when transferring or creating property interests in a General Law Land system?

Answer 1

• Just a deed is required

Question 2

What are the formalities required when transferring or creating property interests in a Torrens Land system?

Answer 2

Registration AND Deed

Question 3

What are the formalities required when transferring or creating property interests via gifting land?

Answer 3

• No consideration is required
• Deed still required

Question 4

What is Conveyancing?

Answer 4

• Process by which you convey property interests to another person

Question 5

What are the 5 (maybe 6 if Toren’s system) stages of Conveyancing?

Answer 5

1. Pre-exchange contracts - MUST provide VDF - Vendor’s Disclosure Form
2. Exchange contracts - Vendor and buyer sign the agreed price on a contract
3. Deposit - Typically a 5-20% deposit –> Allows purchaser to hold an equitable fee simple + provides vendor right of possession
4. 30-90 day period for buyer to arrange funds
5. Settlement –> pay remaining balance –> Marks PERFORMANCE of deed
   (6. Registration if Torren’s system)

Question 6

When is Legal Interest conveyed for Conveyancing?

Answer 6

General Law Land - complete
Torren’s system - Must REGISTER

Question 7

What if Legal formalities are NOT fulfilled, but want to prove some sort of ownership?

Answer 7

• We can use 2 approaches to establish an equitable interest
• s126 of Instruments Act 1958
• Oral Agreement

Question 8

What is s.126 of Instruments Act 1958?

Answer 8

• Only used if there is a WRITTEN agreement –> e.g. If sellor argues no ‘deed’ and so there was no transfer –> BUT there is a NOTE of agreement –> Buyer recognised to have equity

Question 9

What is Oral Agreement?

Answer 9

• If sufficient acts or part performance (both parties behave as if there is legal transfer/creation of interest –> Said to have equitable interest

Question 10

Can you ever ‘back out’ of a conveyance?

Answer 10

Auction - NO b/c contracts arranged

Properties purchased via in response to an invitation –> 3 day cooling off period where yo can change mind –> Vendor keeps $100 if you decide to NOT go with sale.

Question 11

What if Full information is NOT provided?

Answer 11

• VDG in pre-exchange contracts stage MUST be provided
• Details of property must be provided
• Must be signed by Vendor

Question 12

What if Property becomes damaged?

Answer 12

s.34 –> House damaged –> purchaser can walk away from conveyance as long as settlement has NOT been completed
s.35 –> purchaser can now ‘step into shoes’ of vendor and use insurance policy
s.36 –> If vendor has opportunity to fix damages and if they do it themselves –> purchaser CANNOT use s.34/s.35