Topic: Australian Property Law

Description: [?]
Preferred Language Style: English (U.S.)

Assignment 2 – Problem solving

Maximum 1,500 words

Answer the questions that follow each of the two problems below. Both
problems are worth equal marks. In all cases give reasons for your
answers. (As for assignment 1 your discussion should outline the
relevant law that you think applies, where possible supplying case or
statutory authority for that law. You should then attempt to analyse
how that law applies to the facts given in the problems.)

Problem 1

Hollis was the registered proprietor of an encumbered fee simple in
Savacre. The property was subject to a registered mortgage to Evans.
Hollis contracted to sell the property to Lowe. The parties agreed
that the mortgage was to be discharged and the purchaser was to
receive an unencumbered title.
Lowe was a developer with plans to demolish all existing buildings on
the site and build a resort. Phil was a tenant of Savacre with a two
year unregistered lease. Lowe met Phil on a number of occasions and
told him each time of his plans but that he would not begin the
demolition until after Phil’s lease had expired.
The purchase price was paid to an estate agent, Brown, who was acting
for Hollis. Brown was to arrange for discharge of the mortgage to
Evans. To do this, he retained a sum of money that Lowe had paid for
the property and paid the balance of the purchase price to Hollis.
Instead of repaying the mortgage loan as instructed by Hollis, Brown
misappropriated the money. To disguise this act and save himself from
discovery, he forged a discharge of the mortgage. He lodged for
registration a genuine transfer of the property from Hollis to Lowe,
together with the forged discharge of mortgage, the duplicate
certificate of title and the duplicate mortgage obtained from Hollis.
Lowe immediately served on Phil a notice to quit.
After Brown’s fraud was discovered Evans brought an action against
Hollis and Lowe. He claimed payment of the money due under the
mortgage from Hollis and a cancellation of the discharge of the
mortgage entered on the register.
1. Is the registration of Lowe as a proprietor free from encumbrances
indefeasible? Give reasons for your answer.
2. Advise on the interest that Phil has in Savacre. Would it make any
difference to your answer if Phil’s lease was only for a period of one
year?

Problem 2

Mark was the owner of a block of Torrens System land on which there
were two commercial buildings separated by a narrow laneway. He
subdivided the land into two lots (Lot1 and Lot 2) so that there was a
building on each lot. The narrow laneway was attached to Lot 2. Access
to both buildings was by means of this laneway.

Pat signed an agreement for the purchase of one of the commercial
buildings (Lot 1). A clause of the agreement said that the purchaser
undertook not to use the premises for any purpose other than the
‘manufacturing and sale of new or repaired canvas awnings and annexes
and camping equipment’. The remaining building was operated by Mark
for the manufacture of timber furniture, for which he used power saws,
sanders and other power tools. This work created dust, sawdust and
noise which interfered with the conduct of Pat’s business.

The ventilation systems of the two buildings consisted of openings
that faced each other. Consequently particles of sawdust passed into
Pat’s premises and on to her products both from Mark’s premises and
from his bins outside. The sawdust caused problems for Pat’s working
conditions, collecting on the floor, on the machinery, and on raw or
finished materials. It frequently stained Pat’s canvas products, so
that they could not be sold at full price.

In the laneway and next to the wall of Pat’s building were large
stacks of timber owned by Mark which blocked natural light from
entering, thereby impairing the visual display in her showroom.
Delivery of raw materials to the premises of both businesses was by
means of the laneway. This was significantly narrowed by bins of
timber off-cuts arranged alongside the wall of Mark’s building and
overflowing saw dust, making it impossible on occasions for delivery
vehicles to enter. It also discouraged customers from entering Pat’s
premises to inspect her merchandise, as this would require them to
walk through sawdust sometimes 30cm thick.

The sale agreement between Pat and Mark contained a covenant whereby
Mark and his assigns and successors-in-title were obliged not to ‘use
the land (Lot 2) in a manner that affects the passage of light and air
to the factory currently situated at [and here the location of the
factory was specified by reference to the relevant certificate of
title] …and that this covenant is entered into for the benefit of the
covenantee [Pat] and their assigns and successors-in-title’.

1. Can Pat successfully claim easements over Mark’s land? If so, then
on what basis and to what remedies would Pat be entitled?

2. Would the covenant contained in the sale agreement be enforceable
by Pat’s successors-in-title
(i) Against Mark?
(ii) Against a successor-in-title to Mark?

And if so what would Pat’s remedies be?

Objectives assessed by this assignment:-
• a sound knowledge of the fundamental principles of property law from
a theoretical and practical perspective
• an understanding of the concepts which underlie the reasoning for
the protection of legal and equitable interests
• the ability to problem solve by analysing property problems,
identify legal issues, and applying property rules and principles.
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May 18 2:15     LOGIN_DETAILS_TO_COURSE_WEBSITE.docx    10 kb   Download
May 18 2:15     COML2003_External2011_.doc      127 kb  Download
May 18 2:16     COML_2003_COML_5010_SGuide_2011_doc.doc         880 kb  Download
May 18 2:16     Topic_1_Property_Law.ppt        491 kb  Download
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May 18 2:18     TOPIC_6_Encumbrances_Mortgages_and_Charges_Part_1.ppt
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May 18 2:18     Topic_7_Easements_Restrictive_Covenants_KS.ppt  332 kb  Download
May 18 2:19     Topic_8_Leases_Characteristics_and_Terms_2011_KS.ppt    537
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