protecting interests in, claims to, land (caveats)
TRANSCRIPT
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Protecting interests in or claims to land
Caveats, settlement notices and writs of execution
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The implications of TorrensIssue Common law Land Title Act
Process to create legal interest
Determining priority
Volunteers
Issue of notice
Need for bona fides?
Role of equity
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The Torrens system only deals with legal interests in land.
☐ True☐ False
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Other dealings (LTA)
Caveats
Nature Effect
Writs of execution
Effect
Settlement notices
Effect
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CAVEATSThe role of equity, and…
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Two scenarios
No caveat
lodgment registration
Caveat
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Caveats put the world on notice
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A caveat does not enlarge your interest in land.
Image: http://pixdaus.com/big-yellow-duck-by-greg-naeseth-duck/items/view/309884/
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Form of caveat, cont’d
What are these ‘other grounds’? Read the LTA
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Who can lodge a caveat?: LTA
A person claiming an interest in a lot
What does interest mean? Where might you find this meaning?
definitions section part Acts Interp Act
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Who can lodge a caveat?
• Bill signs a contract to sell his land to Ben. Ben finds out Bill has also signed a contract to sell to Helen. Does Ben have a caveatable interest?
• Peter borrows money from the bank, and deposits his title deeds as security. Does the bank have a caveatable interest?
• Joanne has signed a contract to buy a farm. The contract is subject to finance. Does Joanne have a caveatable interest?
• Margaret has defaulted on her mortgage, and the bank has exercised its power of sale. The bank has signed a contract to sell to a related entity. Does Margaret have a caveatable interest?
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Who can lodge a caveat?• Jonathan has signed a contract to buy land
that is subject to council approval for subdivision. Council has not yet given its approval. The owner is threatening to sell the land to a third party. Does Jonathan have a caveatable interest?
• Pauline is a beneficiary under a trust that owns land. The trustee is planning to sell the land. Does Pauline have a caveatable interest?
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Case Interest Caveat?
Ben v Bill Equitable interest in an estate in fee simple as purchaser under a contract
Is it unconditional? Chang v Registrar of Titles
Bank v Peter Equitable interest by way of deposit of title deeds
Re Dixon’s Caveat
Joanne Equitable interest as purchaser under contract
Conditional: Re Dimbury, Re CM Group Caveat say no distinguish? – is it specifically enforceable. Cf Re Henderson’s Caveat
Margaret Mere equity to have the sale set aside (Latec)
Re Pile = noCf Re McKean’s Caveat = likely yes
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Case Interest Caveat
Jonathan Equitable interest as purchaser under conditional contract for sale
Re CM Group Caveat – noBut see Re Henderson
Pauline Interest as beneficiary under a trust has a mere right to be considered in distribution – not an interest in land
No (Though see Kennon v Spry for a new take on this…)
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Caveats’ life span
• Find the provisions (LTA)
• What is their scope• Identify the
different time-frames that apply
• Draw a diagram representing these time-frames
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Two different issues
Is there a caveatable interest?
Which interest takes priority?
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What can you do with a caveat?
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Does the LTA promote alternative dispute resolution to resolve competing interests in land?
Review the caveat provisions in the LTA – what are the triggers for the time-frames?
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Can you caveat again?
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SETTLEMENT NOTICESProtecting specific interests
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Settlement notices: Work through the LTA
What is it? Who qualifies?
What is the effect?
How long do they last?
Effect on instruments
?
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WRITS OF EXECUTIONOther…
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Writs of Execution: work through the LTA
What is it? How is it issued?
What is its effect?
What are the time limits?
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Black v Garnock
Black got judgment a/g respondent
Judgment debtor agt sale to respondent
Pcher: clear check search
½ hour later: Black warned of
writ of execution
1 ½ hour later: Black lodged
writ of execution
What is the effect of the
writ of execution?
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OverviewScope of Torrens
Torrens encompasses equity too!
Nature of Caveats
Caveats stop registration; warn the world
Scope of Caveats
Caveats apply to interests in land
Nature of Settlement notices
Same or different from caveat?
Nature of writ of execution
What are they & how do they work?