Real Property Assignment Answer Guide August 2017
General Remarks
These are some comments to help understand the feedback given on your assignments. Generally speaking, the assignments were of a reasonable standard. Most people need to do work on the areas described below. The numbered paragraphs correspond to the numbers on your papers. Remember that this is a guide – it will not be applied mechanically without careful consideration of your answer.
1. Most students need to improve their referencing and citation. Some students did not reference and cite any cases or provide the necessary references to Butt or other texts. This is unforgivable and should not be repeated in this or other subjects. Referencing and citation is important not only for academic purposes but for professional lawyering. If you are in doubt about referencing have a look at the Australian Guide to Legal Citation available from the University of Melbourne.
2. It is important to use cases to strengthen your argument. When using a case to show how a principle works. It is not enough to say that ‘Smith v Jones illustrates this principle’ without then explaining the case and why it is useful for your answer. Similarly when using sections from legislation it is not useful to your argument to simply cut and paste the section into the text or provide a basic citation, for eg ‘The assignment is legal: s 23C’. You need to demonstrate your understanding of how the section actually works and use your owns words to describe key terms in the section and its mechanics. Then use cases that provide examples of how the section works. Try to layer your answer with detail.
3. Some students need to improve their expression, sentence structure and layout. Do not be afraid to use subheadings although avoid point-form description of the issues. It is not possible to pass an assignment or an exam by providing point form notes. If you are having trouble, enroll in the assignment writing training through LEC.
4. Students should also be mindful of the fact that long, verbose assignments are worse that short concise ones. The word limit was 4 pages but many people went far over. Keeping within the word limit is good practice for the exam where time will be the key to success.
5. Be careful to read the question and provide an answer to the question being asked rather than an excursion into the area. General comments and discussion are to be encouraged but not at the cost of the answer. Many students attempted these questions by just rattling off the basic laws without considering them in the light of the questions that were asked. You must ALWAYS answer the question – a summary of the rules is not an attempt to grapple with the questions being asked.
Question
Heather owned a large lot of 50 acres at Macmasters Beach on the Central Coast of New South Wales. The land was held in old system of title. Two years ago, she entered into a verbal agreement with Tom that Tom could rent the 50 acres for 6 years. Tom had cattle on the property and other equipment.
Part of the property was dedicated to a partially sealed track which had gates at either end. The track was used by the next door neighbor, Abby to access her block from the public road. An agreement had been entered into by Abby and the owner of the land (prior to Heather) in deed form. It said that whoever owned Abby’s land had a right of “carriageway” to go “from and across” Heather’s land and to the public road. The agreement had been registered in 1998. Abby used the road once or twice a year.
Heather also owned an investment property at Avoca which was held in the Torrens system. She needed to borrow some money so she approached her brother Darrow for a loan. Darrow agreed to provide $50,000 to Heather but wanted to receive some security. Heather gave Darrow the certificate of title to the house at Avoca but nothing was entered into writing.
Darrow later lost his fortune on the stock market. In desperation to stave off his creditors, he used the certificate of title to the Avoca property and forged Heather’s signature to a sale of land to Christine. Christine suspected something was amiss but the property was such a good bargain that Christine bought it sight unseen and immediately settled. Christine was registered as the owner.
Even with the money he made from the sale Darrow was still short of cash. He fell into a deep depression and tried to kill himself. Heather found him before he died and he was taken into intensive care at Gosford Hospital, but he was later pronounced brain dead. Darrow’s girlfriend of 6 months, Meagan, has asked the hospital to retrieve a sperm sample so she can make herself pregnant with Darrow’s child. The hospital staff did so and provided Meagan with the sample. Heather was the executrix of Darrow’s estate. Heather was angry as she had refused to allow the sperm sample to be taken - Darrow had recently told her that he wasn’t happy with Meagan and was soon going to break up the relationship. Heather has resolved to bury her brother in accordance with his will but she is worried that Meagan will make herself pregnant with Darrow’s child.
Please answer the following
(a) Tom has refused to allow Abby to drive her truck down the track saying that she has no right to do so and she is disturbing his cattle. Is he bound to respect the right of carriageway?
(b) What interest did Darrow have in Heather’s house at Avoca?
(c) Once Heather discovers Darrow’s sale to Christine, will she be able to regain ownership of the house at Avoca?
(d) Can Heather demand the return of Darrow’s sperm sample?
6. Tom has an oral lease. Leases for 6 years need to be in writing and in the form of a deed to be legal under the Conveyancing Act 1919 (‘CA’). Students should have discussed ss 23B, 23C and 54A. They should also have discussed how s 23D(2) could not be applied given the length of the term of the lease. Given the lease is oral and given that possession was granted (in addition to rent being paid) the lease is equitable under the doctrine of part performance. Students should have discussed the elements of part performance and given a case example to illustrate the way the doctrine works: eg Maddison v Alderson, Regent v Miller, Theodore v Mistford.
7. The agreement to create an easement was in deed form and is therefore legal: s 23B CA. The deed was registered on the General Register, and this registration may afford extra protection under s 184G in certain circumstances.
8. The conflict is between Abby’s earlier legal interest and Tom’s later equitable interest. Section 184G cannot be applied to the conflict as the conflict is not between ‘competing instruments’ as the lease is oral. Common law priorities then apply and in the conflict between an earlier legal interest and a later equitable one, the law prevails unless there is postponing conduct. There is not such conduct in this case: Northern Counties v Whip, Walker v Linom. Therefore Tom must respect Abby’s right to use the carriageway.
9. Darrow has an equitable mortgage secured by the deposit of the certificate of title. The doctrine of part performance applies to the Torrens system: Theodore v Mistford. Again, a case example should have been employed to illustrate how this works.
10. Christine is registered as the proprietor: s 41 of the Real Property Act 1900 (‘RPA’). Students should have discussed the concept of indefeasibility and ss 42 and 43. The issue for Heather is whether there is an applicable exception to Christine’s indefeasibility. The most relevant one is fraud. Fraud should have been defined as personal dishonesty: Assets Co. The core issue is whether Christine can be argued to have acted dishonestly by suspecting something was amiss but registering anyway. The fact that Christine bought the property sight unseen appears to place her behaviour in the same category as the registered proprietor in Efspratiou where the NZ High Court found fraud. It is therefore arguable that she has not purchased for ‘fear of learning the truth’ as described in Assets. Whatever was decided by students, it was important to discuss these issues
11. The issue here is the nature of the sperm sample and who has rights over it. The res nullius rule prevents human tissue from being treated as property unless work and skill have transformed it in some way: Doodeward v Spence. In such cases it will be the labourer who gets the property rights (or whoever paid for the labour). More recently the UK courts have said that tissue may have proprietary characteristics without the need for work and skill: Yearworth. According to the NSW case of Re Edwards the sample is property and forms part of the estate of the deceased. As such the executrix has the rights to the return of the sample even though the work in preserving it was done at the request of the girlfriend.