week thirteen Flashcards
what are the two proceedings to do with caveats
- interlocutory hearing to determine whether caveat should remain/be removed (where RO wants removed) - decided by a judge alone based on filed affidavit forms of evidence (quick, urgent)
- substantive hearing over the reason why the caveat was lodged - a slow court process with evidence given by witnesses to do a full hearing of the issue
for a caveat to be lodged, a __________ must be shown
legal or beneficial interest in land
what are some examples of interests that do not support a caveat
- potential interest in land (e.g. making inquiries of the real estate agent at an open home)
- mere contractual or personal rights (between you and the owner)
- licence to occupy (your footpath to the roadside gives them licence to come onto the property, but this licence can be revoked by telling them to get off and you only give it to allow them to come on e.g. tradies, sales people)
- right of first refusal (in contract)
what is the difference between a legal and a beneficial interest?
legal = registered on the title
beneficial/equitable = where you claim you have an interest but it isn’t registered
what interests may support a caveat
- an agreement for sale and purchase
- an agreement to mortgage or an unregistered mortgage
- an alleged trust (cestui que trust)
- an unregistered lease
- an unregistered easement
what is an easement
a right, of some sort, over another persons land
how can you get an unconditional agreement for sale and purchase
- if there are no further terms (just the general agreement) and both parties sign the agreement
- where all conditions become fulfilled within the time limit
does an unconditional agreement for sale and purchase support a caveat + what case
Foreman v Hazard - the purchaser’s interest will support a caveat.
vendor holds the property on trust for the purchaser from the unconditional agreement till it is transferred and there is an equitable interest because there is nothing more they can do to own the property except the formality of the transfer
can conditional agreements for sale and purchaser provide a purchaser with a caveatable interest + what case?
it used to be that if there was a conditional agreement for sale and purchase, the court could not order specific performance of a contract that still had conditions needing to be fulfilled.
the current law is that it can support - Bevin v Smith, although in this case the condition to be fulfilled was only a mere formality and it is unclear what would happen if it is not a mere formality as we don’t have law on that
what is specific performance
where a contract has been formed, for some reason there’s a problem with it but the court orders it go ahead as is
what are the facts of Bevin v Smith
Bevin and Smiths both required to help obtain the consent of the Tribunal for the Smith’s to own lots of land at one point.
Bevin changed his mind and didn’t do anything or instruct this solicitor to do anything to help that.
the date for condition to be fulfilled passed and the contract become void.
did the Smith’s have a caveatable interest in Bevin v Smith
yes - in equity and to impose fiduciary obligations on the vendor continuing in possession
whether an equitable interest has passed to the purchaser depends on (based on Bevin v Smith CA decision)
- the terms of the contract itself (the actual condition that the contract is subject to)
and
- intention - e.g. did you intend to for it be binding when entered or when the conditions were fulfilled
when do contracts usually become binding and what is the unusual situation where it wouldn’t be
when entered into - unusual situation may be found where they have to wait for the condition to be fulfilled to be bound because of intention
what was the result of Bevin v Smith
- bevin ordered to perform all his obligations under the ASAP
- transfer of property to Smiths
what cases confirm the position taken in Bevin v Smith of a conditional ASAP being enough to support a caveat
McDonald v Isaac Construction
Bruce v Edwards
- equitable interest acquired as soon as ASAP formed
generally, dispositions of land require __ _____ ___ _____ under which act?
a document in writing under s24-27 PLA 2007
what happened in Windy Day Ltd v Whitehead
Mr Brody (director of Windy Day) owed Mr Whitehead money, who ordered a charging order over Mr Brody’s mothers house.
Windy Day was going to turn some land into apartments so Brody said he would sell Whitehead one at a discounted price to offset the debt.
There was some correspondence and emails between the parties’ solicitors and Mr Whitehead, after not hearing anything for a long time and seeing the apartments advertised for sale, lodged a caveat again Windy Days’ title.
Held: Mr Whitehead delayed selling Brody’s mothers house on the basis of the agreement and despite no formal documentation there was enough between the parties to determine what they agreed to be the basis of an agreement and the essential terms needed to effect the transfer of the property
if there was a true oral contract ASAP (absolutely nothing written, unlike in Windy Days) would there be a caveatable interest
unclear, but likely not since PLA 2007 requires transfer in writing
what is a trust
where one person holds property/money/something on behalf of another person (to look after)
what is an implied trust
an implied trust can arise where the parties have a common intention as to property without having used express words to communicate that intention to one another
what are the two types of implied trust
resulting trust and constructive trust
what is a resulting trust (type of implied)
a trust that arises where the beneficial interest in property is not applicable to an indicated beneficiary and therefore results/reverts to the disposer
what is a constructive trust (type of implied)
a trust that arises where property is held by a person in circumstances where it would be inequitable to allow them to assert full beneficial ownership of the property
