Sackville & Neave Australian property law

Full Title
Copyright
Preface
Preface to the First Edition
Acknowledgments
Table of Cases
Table of Statutes
Abbreviations
Table of Contents
	Chapter 1 The Concept of Property
		Introduction
		What is property?
			The right to use or enjoy
			The right to alienate
			The right to exclude
		Property rights and contractual rights
			Licences: bare, contractual or coupled with an interest
			Licences and original parties
			Licences and third parties
		Property rights and the rights of persons
			Are persons property?
			Property and body parts
			Property rights and privacy
			Property and the right to work
		Property rights and civil rights
		Property rights and human rights
		The traditional classification and terminology
			Land, or realty
			Boundaries of land
				Air space rights
			Chattels, or personalty
		Boundaries between different types of property
			The boundary between land and chattels: fixtures
				The doctrine of fixtures
				Tenant’s fixtures
				Right to remove
				Agricultural and residential tenancies
				Chattels annexed without permission
			The boundary between adjoining landowners
				The doctrine of accretion
				Encroachments
				Land bounded by water
			When chattels merge: the doctrine of accession
	Chapter 2 Possession and Title
		Introduction
			Why protect ‘possession’?
		Possession of goods
			Remedies
			The plea of jus tertii
			Possession by a bailee
			Claims by bailee against a third party
			Claims by a bailor against a bailee
			The rights of finders
				Finder and occupier of land
				Finder and employer
			Abandonment of goods
		Land
			Title in actions to recover possession of land
				Relativity of titles under the Torrens system
				Assignment of the interest of a person dispossessed by a squatter
			The self-help remedy
				Forcible re-entry
		Limitation of actions
			How possessory title extinguishes documentary title with the passage of time
			Justifications for the rule of adverse possession
				Adverse possession and good faith
				Adverse possession and human rights
			The length of the limitation period
			Commencement of the limitation period
				General principles
				Persons presently entitled to possession
				The elements of adverse possession
				Possession amounting to a criminal offence not relevant
				Adverse possession claims to part parcels adjacent to boundaries
				Does possession of part of a lot amount to possession of the whole?
				Future interests
				Equitable estates
				Adverse possession by a co-owner
				Successive adverse possessors
				Stopping time running
				Extension of time
			The effect of effluxion of time
				Tenancies
	Chapter 3 The Fragmentation of Proprietary Interests in Land
		Introduction
		Fragmentation in a spatial dimension: the doctrine of tenure
			No services
			No incidents
		Fragmentation in a temporal dimension: the doctrine of estates
			Introduction
			The estates — general
				Fee simple
				Fee tail
				Life estate
				Leasehold estates
			Creation of freehold estates — words of limitation
				Fee simple
				Fee tail
				Life estate
			Statutory modifications to the common law
			Determinable and conditional interests
				General
				Effect of void contingencies
				When will a condition be void?
			The doctrine of waste
			Legal future interests
				Reversions and remainders
				Vested and contingent remainders
		Fragmentation between legal and beneficial ownership: equitable interests in land
			The development of the use
				Substitute for wills
				Avoidance of feudal burdens
				Providing for grantor’s wife
				Avoidance of the Statutes of Mortmain
				Creation of new future interests
			Enforcement of uses
			The Statute of Uses 1535
			The Statute of Wills 1540
			The development of the trust
			Equitable estates and wills
			Reform of future interests
		Systemic fragmentation of interests in land: the common law, tenure and native title
			Introduction
				The doctrine of tenure after Mabo
				Is native title a proprietary interest?
			The Native Title Act 1993 (Cth)
			The nature and incidents of native title
				What rights does the native title ‘bundle of rights’ contain?
			Connection with the land
			The extinguishment of native title
				Grant of a freehold estate
				Pastoral leases and extinguishment
				Leases conferring rights of exclusive possession
				Leases containing reservations in favour of Indigenous inhabitants
				Statute
	Chapter 4 The Acquisition of Property Rights and Equitable Property
		Introduction
		Acquisition through taking possession
			Land and goods
			Chattels — wild animals
		Manufacture or creation of objects
		Patents, copyright and trademarks
		Consensual transactions with proprietary interests — legal and equitable
			Sale
				Goods
				Formal requirements for the contract for sale of goods
				Land — legal and equitable interests
				The sale transaction — real property
				Formal requirements for the passing of a legal interest in land
				Formal requirements for contracts for the sale of land
				The equitable doctrine of part performance
				Equitable interests arising out of enforceable contracts
			Gifts
			Land
			Express trusts
				Formal requirements
		Equitable doctrines: resulting trusts, constructive trusts and estoppel
			Resulting trusts
			Constructive trusts
				Common intention constructive trusts
				Constructive trusts based on unconscionable use of legal title
			Legislative reform
				State and Territory legislation
			Acquisition of an interest in property by estoppel
				Proprietary estoppel
				Equitable estoppel
				Remedies in cases of estoppel — proprietary or compensatory; expectation-based or detriment-based?
				The problem of minimal detriment
		Equitable priority rules
			Introduction
			Enforceability of legal interests in old system land
				Earlier legal interest against later legal interest
			Equitable interests against legal interests
				Earlier legal interest against a later equitable interest
			Prior equitable interest against a later legal interest
				The principle
				The statutory definition of notice
			Enforceability of equitable interests
				Prior equitable interest against a later equitable interest
			Enforceability of equities
				Earlier equity and later equitable interest
	Chapter 5 Title to Land: The Torrens System
		Introduction
		‘General law’ or ‘old system’ land
		The deeds registration system
			Registrable instruments and the effect of registration
		The Torrens system
			Bringing land under the Torrens system
			Compulsory extension of the Torrens system
			The principle of indefeasibility
			The indefeasibility provisions
			Deferred vs immediate indefeasibility
			The adoption of immediate indefeasibility
				The policy debate over deferred and immediate indefeasibility
				Immediate indefeasibility in the states and territories
				Instruments void for defects other than forgery
			Indefeasibility of the terms in a registered instrument
				What is indefeasible in a void mortgage?
				Indefeasibility and the all moneys mortgage
				Relief for the ‘statutory mortgagor’ under the Consumer Credit Code
			Volunteers
			Exceptions to indefeasibility
			The fraud exception
				Fraud distinguished from carelessness
				Statutory provisions to impose a duty on mortgagees
				Fraud and agency
				False attestation of instruments
				Fraud against the holder of a prior unregistered interest
				Supervening fraud
			Rights in personam (the ‘personal equities exception’)
				The types of causes of action that can be asserted against a registered proprietor
				The requirement of an element of unconscionability
				Special equity cases
				Personal equity and breach of trust
				Personal equities and mistake
				Personal equity and unlawful action by public authorities
				Personal equity and easements
				Conclusions on the scope of the personal equities exception
		The register
			Registrar’s powers of correction
			Other exceptions to indefeasibility
				Reservations and exceptions in Crown grant
				Short-term tenancies
				Easements
				Adverse possession
				Rates and taxes
				Overriding statutes
				Insuring the risk of unrecorded statutory charges
				Recording of statutory charges etc
			Equitable interests and unregistered instruments
			The caveat provisions
				Caveatable interest
				Does a registered proprietor have a caveatable interest?
				Requirements for caveats
				Application for removal of caveat
				Caveats lodged without reasonable cause
			Competing equitable interests
				The significance of notice in equitable priorities
				Statutory protection for the purchaser between settlement and registration
		Compensation for loss
			Last resort or first resort
			Circumstances giving rise to claim
				Loss resulting from error or omission
				Loss resulting from fraud
				Loss resulting from registration of another person
				Restrictions on claims
			Limitation period
			Measure of damages
			Strata titles legislation
				Leasehold scheme
				Tenancy in common
				Home unit companies
	Chapter 6 Co-ownership
		Introduction
		Joint tenancy — essential features
		Tenancy in common — essential features
		Creation of co-ownership — joint tenancy or tenancy in common?
			At law
			In equity
				Business partners
				Money advanced on mortgage
				Unequal contributions to the purchase price
			Statutory reform
				Co-ownership and the Torrens system
		Rights of enjoyment inter se of co-owners of land
			Rights of occupation
			Occupation rent
			Ouster
			The quantum of occupation rent
			Accounting for rents and profits
				The Statute of Anne
				Statute of Anne not applicable
			Compensation for repairs and improvements to land by one co-owner
			Liability for waste
			Disposition of interests by co-owners
		Severance of joint tenancy
			Modes of severance
				Severance by unilateral act
				Severance by transfer to a stranger
				Declaration of trust
				Does grant of a mortgage or a lease sever a joint tenancy?
				Severance by agreement
				Severance following a course of dealing
				Severance following homicide
				Severance by court order
				Severance upon bankruptcy
		Termination of co-ownership
			Land
				The Partition Acts
				Statutory trusts
			Chattels
			Legislative reform
	Chapter 7 The Alienability of Proprietary Interests
		Introduction
		Judicial doctrines — restraints on alienability
		The rule against perpetuities
			Background
			The rule
				Statement of the rule
				Vesting of interests
				Presumption in favour of vesting
				The commencement of the perpetuity period
				Lives in being
				Certainty of vesting: unborn widows, fertile octogenarians and others
				The statutory wait-and-see rule
				Reduction of age contingencies
				Application of saving provisions
				The class-closing rules
				Reform of the all-or-nothing rule
				Subsequent interests
				Legal contingent remainders
				Possibilities of reverter and rights of re-entry
				Accumulations
				The Perpetuities and Accumulations Act 1985 (ACT) and the Perpetuities Act 1984 (NSW)
	Chapter 8 Leases
		Introduction
			Residential tenancies
			Retail tenancies
			Agricultural tenancies
			Leases under the Crown Lands Act
			Other tenancies
		The general law of landlord and tenant
			Terminology
			Creation of leases
			Substantive requirements
				Certainty of duration
				Exclusive possession
				Exclusive possession — further exceptions
			Formal requirements
				Torrens title
				Old system
				Agreement for a lease
				Implied tenancies at law
				Yearly periodic leases
				Other implied periodic leases
				Tenancy by estoppel
				Concurrent leases
				Reversionary leases
				The doctrine of interesse termini
		Covenants
			Introduction
			Covenants implied by law
				Quiet enjoyment
				Remedies
				Obligation not to derogate from grant
				Liability for acts of others
				Implied condition of fitness for habitation
				The obligation to repair
				Duty to take reasonable care for the safety of occupants
				Tenant’s obligation to use the premises in a tenant-like manner
				Tenant’s obligation to yield up possession
			Covenants implied by statute
				Statutory implied obligation on tenant to repair
				Statutory implied right of landlord to inspect premises
				Statutory implied right of re-entry
			Covenants by necessary implication
			Express covenants
				Covenant to repair
				Exception
				Inherent defects
				Measure of damages
				The covenant against assignment or subletting
				Covenant as to user
				Covenant to pay rent
				Option to renew
			The enforceability of covenants after assignment
				Privity of contract
				Assignment of the lease — privity of estate
				Assignment of the reversion
		Remedies
			Forfeiture of lease by landlord
				Enforcement of the right of re-entry
				No right to forfeit if breach waived
				Forfeiture must be effective
				Relief against forfeiture
				Self-help
			Remedies of landlord and tenant in contract
				Repudiation, notice and relief against forfeiture
				The plea of set-off
				Bonds
			Statutory remedies
		Residential tenancies
			Introduction
			What is a residential tenancy?
			Creating residential tenancies
				Types of tenancies
			Parties’ obligations
				Quiet enjoyment
				Repairs
				Urgent repairs
			Rent
				Introduction
			Bonds
			Termination
				Termination by notice: without any ground
				Termination by notice: following breach
				Order for termination and possession
			Tribunal
	Chapter 9 Planning Land Use by Private Agreement: Freehold Covenants
		Introduction
			Privity of contract
		The running of covenants at common law
			The burden
			The benefit
		The running of covenants in equity
			The burden
				Covenant must benefit the land
				Covenant must be negative in substance
				Covenant must be intended to run with the land
				Covenant as an equitable interest
			The benefit
			Annexation of the benefit of the covenant to the land
				Express annexation
				Statutory annexation
				Identification of the land
				The covenant must ‘touch and concern’ the land
				Express assignment of the benefit of the covenant
				Creation of a building scheme
				Common vendor
				Benefit to all purchasers
				Purchase on footing that restrictions would enure to benefit all lots
				Planning instruments
			Construction of covenants
			Discharge of restrictive covenants
				By operation of law
				By agreement
				By statute
			Restrictive covenants and the Torrens system
	Chapter 10 Easements and Profits à Prendre
		The characteristics of easements
			Dominant and servient tenements
				Formal requirements for creation of easements
				Easements in gross
			Accommodation of dominant tenement
			The dominant and servient tenements must not be owned and occupied by the same person
			The easement must be capable of forming the subject matter of a grant
		Types of easements
			Rights of way
				Rights to light and air
				Rights of support
				Party walls
				Fencing easements
				Other examples of easements
				Protection from the weather?
		Creation of easements
			Express and implied grants
				Easements expressly created
				Easements created by implication — implied grants
				Easements created by implication — implied reservation
				Acquisition by long user
				Rights of support
				Creation of easements by court order
				Remedies
		Extinguishment of easements
			Abandonment
			Express release
			Alteration to the dominant tenement
			Unity of dominant and servient tenement
			Statutory extinguishment
		Easements and the Torrens system
			General exemption of unregistered easements to indefeasibility — Victoria, Western Australia and Tasmania
			Partial exemption to indefeasibility in favour of ‘omitted and misdescribed easements’ — other jurisdictions
			Enforceability of easements that do not come within the statutory exception
				Unregistered express easements
				Unregistered implied easements
			Prescriptive easements
		Profits à prendre
			Introduction — general
			Creation of profits à prendre
				Old system
				Torrens title
			Reform
	Chapter 11 Mortgages
		Introduction
		The secured loan transaction
			When is a mortgage granted?
			How is a secured loan agreement structured?
			How does the law achieve a balance between the mortgagor and the mortgagee?
			How does a mortgage support the purchase of property?
		The nature of mortgages
			Introduction
			The general law mortgage
			The Torrens system mortgage
			Priorities, mortgages and tacking
				General law
				Torrens land
				Tacking and priorities between Torrens system mortgagees
		Covenants in mortgages
		Remedies of the mortgagor
			Equitable doctrines protecting the mortgagor
				Clogs on the equity of redemption
				Penal provisions in mortgages
				Penal provisions in mortgages under the National Credit Code
		Remedies of the mortgagee
			Power of sale
				Statutory duty: notice to the mortgagor
				Equitable duty — conduct of sale
				Sale to an associate or a related party
				Auction sales
				Does the equitable duty amount to a negligence test?
				Timing of sale
				Statutory duties in the exercise of the power of sale
				Court-ordered sale
				Protection of purchaser from mortgagee in cases of breach of statutory and equitable duties
				Application of proceeds of sale
				Application by mortgagor for injunctive relief to restrain exercise of power of sale
				Exceptions to the requirement of payment into court
			Foreclosure
				General law
				Torrens
			Right to sue on personal covenants
			Power to appoint a receiver
			Remedies of the mortgagee — equitable mortgages
		The mortgagor and mortgagee inter se
			Mortgagor’s right to redeem
		Mortgagee’s right to possession of land
			Torrens
			General law
		Power to lease
			Torrens
			General law
		Rights of mortgagor and mortgagee against third parties
			General law
			Torrens
Index