Topic 2
What are the elements of possession?
animus possidendi and de facto control
How does an Adverse Possessor's title relate to others'?
An AP has a better title to all but the documentary owner (Shaw v Garbutt).
How does the Crown acquire beneficial title in Australia?
By express and clear words (Mabo (No 2)).
How does equity divide titular interests in land? The most common type of equitable interest arises under a trust. What are the three main types of trust?
1. Into a legal and beneficial title.
2. Express Trust, Resulting Trust, Constructive Trust.
Is the purpose of registering to create your title, or merely to protect it?
To create it (system of title by registration) ~ Breskvar v Wall.
If an object is lying loose on private property, is a property owner or a finder more likely to have a superior title?
What is the current limitation for an owner to bring an action to recover private property?
12 years ~ Limitations Act s 27(2).
What are the elements of a native title claim? Who has the onus of proof and to what standard?
1. Originating in tradition laws and customs,
2. Continuing connection, and
3. Not be otherwise extinguished.
Claimants must prove elements on BofP.
Can I legally lease a flat in Sydney to a friend for two years at "mates rates" without having to fuss with paperwork?
This will not be a valid "oral lease" at law. It is not at market value (CA s 23D(1)).
What are the three principles of registration, and what do they entail?
1. 'Mirror principle': register reflects all current interests in a give piece of land.
2. 'Curtain principle': buyer need not go behind register to check validity of vendor's interest.
3. 'Insurance principle': State guarantees title and compensates those who fall foul of the system.
Do overhanging trees constitute a trespass?
No – they're a consequential encroachment (Lemmon v Webb)
How much, if at all, do an AP's statements figure in a court's assessment of intention to possess?
Received as one of various factors potentially showing intention to possess, but with caution due to their likely self-serving nature (Abbatangelo).
Of the three types of freehold estate, which does an Adverse Possessor have?
An estate in fee simple is presumed till proved otherwise (Mabo (No 2)).
ANZ Banking Group Ltd v Widin, must have:
1. At least one document signed by person being charged,
2. Express/implied reference to another, and
3. Sufficient details of agreement when they're read together.
Briefly explain the RPA s 42(1) principle of indefeasibility of title (with exceptions).
Registered title holder has better title than all (even the true owner), except in the case of fraud, prevailing in personam rights, short-term leases, prior registered interests, etc.
In Agripower, Sackville AJA discussed prior case-law on fixtures and chattels. He mentioned four factors to consider when determining the object of annexation. What?
1. whether fixation for enjoyment of land or object,
2. nature of property affixed,
3. whether item to be in place permanently of temporarily,
4. function of annexation
If a true owner removes fences which an AP erected, does this show an intention to reassert possession and so 'stop the clock'?
Can do in some circumstances (Worssam v Vandenbrande).
What is the maximum amount of compensation awarded under the Native Title Act? What date is most relevant when assessing compensation?
NT v Griffiths:
Capped at compensation for freehold estate (s 51A), which comprises economic and non-economic loss. Assessed at the date of the act of extinguishment or interference (ss 51(1), 19).
CA s 54A requires an equitable interest in land to be in writing. What are the exceptions?
It requires that to be signed by the party to be charged. What is the exception?
1. Part performance, Estoppel, Gifts, Constructive Trusts.
2. An auctioneer may sign for a recalcitrant party after a valid sale at an auction.
It requires notice and dishonest conduct.
Not by itself, will if witness knows that the signature was a forgery (Grgic v ANZ Banking Group)
What is the medium filum rule? Does it still apply? If not, what is the current rule?
1. That the landowner owns up to the middle line of the water.
2. No, CL was replaced by Crown Lands Act s 172.
3. Owner’s rights end where land and water meet.
Name six factors indicative of an intention to possess.
6 of: (see Mulcahy and Newington v Windeyer)
1. Building on the land
2. Residing on the land
3. Paying rates and taxes
4. Fencing the land
5. Maintaining trees and gardens
6. Blocking access so other can’t use it
7. Allowing cattle to agist
Give the history of whether acts interfering with Native Title are compensable, noting key legislation and cases.
See table at end of review questions.
List the four rules of competing priorities (stating competition, rule, and authority where possible). Which are most appropriate to competing interests in the Torrens system?
1. EL vs LL: nemo dat quod non habet.
2. EL vs LE: nemo dat unless EL's conduct postpones his interest in favour of LE by gross negligence (Walker v Linom) or fraud.
3. EE vs LL: EE prevails unless LL is bona fide purchaser for value w/o notice (Pilcher v Rawlins)
4. EE vs LE: 'If the equities are in all other respects equal, priority of time gives the better equity' (Rice v Rice)
EE vs LE & EE vs LL are most applicable to Torrens.
Without referring to notes, summarise any two of: Cassegrain v Gerard Cassegrain, Frazer v Walker, Breskvar v Wall, Bahr v Nicolay (No 2).
I can cheat and refer to case summaries.