Fragmentation of Property Interests, Title of Land and Legal and Equitable Interests

Question 1

What are the 3 Bundle of Rights?

Answer 1

1. Right of possession
2. Right of use/access
3. Right to exclude others

Question 2

What are Property Rights fragmented into?

Answer 2

Time, Space, Nature of Title, Interest is equitable or legal, Nature of the Right and Interest is shared with another

Question 3

What does Reference to Time mean?

Answer 3

• Granting future interest in a plot of land (fee simple passing to someone else)
• Life estate (fee simple for a specified time)

Question 4

What does Reference to Space mean?

Answer 4

• Land is spatially divided to potentially SELL/LEASE them to others

Question 5

What does Reference to the Nature of Title mean?

Answer 5

• Property rights can be fragmented according to the circumstances that have occured –> Adversed possession

Question 6

What does Reference to whether the interest is Equitable or Legal?

Answer 6

• Courts of Equity provide remedies if the conclusion is unfair

Question 7

What does Reference to Nature of Right mean?

Answer 7

• Easement = using some1’s land for profit or work
• Restrictive Covenant = setting a boundary
• Mortgages/Security Interest

Question 8

What does Reference to whether the interest is shared with another mean?

Answer 8

• Several owners = co-owners

Question 9

What is the General Law Land system?

Answer 9

• Old Common Law system of land ownership
• Purchases MUST trace an unbroken chain of transactions (deeds) all the way back up to 40 yrs ago)
  –> If broken chain, UNMARKETABLE land unless corrected with evidence
• Makes up around 3% of VIC

Question 10

Why did they use the General Law Land system?

Answer 10

• Ensure there was a good reputation in terms of ownership w the land

Question 11

What is the Torren’s system?

Answer 11

-Land Act 1862 –>
- Register of land holdings/interest
- Conclusive evidence of title
- ‘Title by Registration’ –> just register to own land

Question 12

Difference b/w Torren’s and General Law Land systems

Answer 12

• Torrens system is ‘Title by Registration’ whereas General Law land is ‘Registration of Title’

Question 13

What are the Benefits of Torren’s system?

Answer 13

• Reduces cost of conveyancing
• Increases certainty and reduces complexity of dealings in land

Question 14

How does the Torren’s system operate on 3 principles?

Answer 14

• Mirror principle = Register accurately and completely reflects current ownership
• Insurance principle = State gov. provides for compensation to any who suffers loss of land due to operation of Torren’s system
• Curtain principle = Ownership and Interests do NOT need to be proven by long, complicated documents

Question 15

What does Court of Equity do?

Answer 15

• Were est. to provide remedies for situations where the law is not flexible to deliver fair resolution

Question 16

What was deemed under s.29 of Supreme Court Act 1986?

Answer 16

• If Rule of Law and Equity come to conflict –> Equity will PREVAIL

Question 17

What does Equitable NOT give?

Answer 17

• Only a LEGAL TITLE gives ‘absolute ownership’ of a property. Equitable is only partial.

Question 18

What are Equitable Interests

Answer 18

• Potential remedies for situations w/ unfairness
• separate from ‘Legal’ Interests

Question 19

Define ‘Trusts’

Answer 19

• When party holds property or rights on behalf of and for the benefit of another party?

Question 20

What is an Express Trust

Answer 20

• Formal conveyance

Question 21

What are the 3 types of trusts?

Answer 21

• Resulting Trusts
• Express Trusts
• Constructive Trusts

Question 22

What is a Resulting Trust?

Answer 22

• Imposed on ppl by courts to recognise contributions.
  E.g. Wife go to court to own part of property b/c Husband stands as the ‘owner’ of a house

Question 23

What is Constructive Trusts?

Answer 23

• Imposed by courts to address a situation where someone has behaved unconscionably
• Wife goes to court as husband does NOT share proceeds with her –> Courts intervene to assert that husband holds property in trust for both of them.