Property Exam 2003 Q 1
Mark 71 scaled
Marker comments in[]
a)
This is an adverse possession problem
Carla would need to have adverse possession of the strip of land for 12 years or B to have had adverse possession for 12 years (for private land) to get the strip of land (s 27(3) NSW limitations) [Effect on A]
The accrual of adverse possession is where possession of land is taken without the original owners consent (s 28)
In this case it would be in Jan 1991 when the fencing error occurred if B treated the property as his own (Moran)
There needs to be an appropriate use of physical contril. This will depend on the type of property (Pye v Grahm)
In this case, it was a rural property.
Viewed objectively (Pye v Grahm) (What would a passer by think), the fence being in position and grazing sheep would be indicating control [Ö]
Intent is there as B didnet know of the fencing error and treated the land as his own. […? Fence]
Building of the workshop would also indicate intent and control.
Adverse possession needs to run for 12 years continuously
In 2002 the mistake was discovered.
A offered to sell the land to B.
B is still on the land without consent as he did not respond to the offer and hasn’t paid money
To stop time of adverse possession running – A would need to grant permission to B to be on the land – which hasn’t occurred as there is only an offer [Ö]
Or A would need to take positive steps to oust B [Ö]
There is no evidence of this. The steps taken would need to be beginning genuine legal actions or physically taking back possession – merely visiting the land or writing a letter is not enough (Moran)
Also an adverse possessor can pass what they have on (Asher v Whitlock). If B had adverse possession he could pass it on to C.
If adverse possession had not been perfected B could still pass what he had on [Ö]
In this case B probably has adverse possession as possession occurred in early 1991 and time hasn’t stopped.
It would make a difference if A was a life tenant.
The offer for sale of the strip would only last for A’s lifetime [Ö]
Also adverse possession against a life tenant does not affect the person in remainder until the life tenant dies s 31 [Ö]
[so effect on B/C]
b) This is a priority dispute
Interests in the land
C’s interest is legal as the sale is settled (assuming all the formalities were complied with s 23 B conveyancing Act
D’s interest is equitable – the contracts have been exchanged and money paid but there is no deed (Bunney) (equitable interests can be transferred without a deed s 23 C (1) (c) [1]
In this case D’s interest was 1st – this is a dispute between a prior equitable interest and a latter legal [need to show a specifically enforceable contract]
The legal interest prevails if the legal interest holder is a BPFVWN [BFPV?]
Notice may be actual imputed or constructive.
In this case C did not directly know about the easement (the easement being a right of way over the neighbours land – there is nothing indicating that this was mere licence and there was going to be a deed indicating a easement)
However there may be constructive notice.
If C has constructive notice she loses priority and is bound by the lease – the onus is on C to prove she had no notice (Barclays Bank v Boulter) – C inspected the land and noticed the gate. This would require C to make reasonable enquireies for her not to have notice.
The issue is whether C’s enquiries were enough.
C tried to contact D, but D was overseas
The question is whether this is enough [Ö]
More information on how easily C could have contacted D would be relevant here ( if he was easily contactable, eg mobile phone call C probably will have had notice)
If not, C could have enquired with B [vendor] or B’s solicitor, asking alone might not be enough to mean no notice, but B or B’s solicitor could have been honest about the easement [Ö]
By not asking, this is probably enough to constitute constructive notice. Meaning C will be bound by the easement.
There is a limit to how far a purchaser has to go (smith v Jones) but if D was unavailable and not easily contacted it would be reasonable to ask B or B’s solicitor.
c)
The issue is over abandonment [Ö]
Whether C abandoned her painting [discuss relativity of title]
In property law it is not clear if abandonment yet exists [is recognised] (Johnson v Kain,[Ö] Moorhouse[Ö]). These cases have raised the issue but neither has declared abandonment exists in property law. [Ö]
If it does exist a clear unequivocal act and intent is required to give it up. [Ö]
In Johnson, leaving a truck was not abandonment}
In Moorehouse [Ö] failure to enquire wasn’t abandonment
In this case C declared she didn’t care what happened to her painting and did not enquire for 3 years[Ö] [good application of the facts to the law]
As there is a high onus this may not prove to be enough. C may not have really intended to abandon the painting. She may have been upset [Ö] and have not really intended to abandon and the failure to enquire would not be abandonment either [Ö].
[conclusion]