Creating proprietary interests in land

Creation & Enforcement of Proprietary Interests

Foundation concepts

Old system title = common law,

not statute

Interests in land can be legal or

equitable

Torrens title now applies in Qld semester

2

OLD SYSTEM TITLELand held under the common law system, pre-Torrens

Land held at common law is old system land or general law

landOld system land – one set of rules

Torrens title land – rules prescribed by statute

How tenure works: old system

Crown grants unallocated land: s14 Land Act

Grantee takes lot in fee simple under deed of grant

Title created upon delivery of deed of grant

How tenure works: Torrens

Crown grants unallocated land: s14 Land Act

Grantee takes lot in fee simple under deed of grant

Deed of grant registered: s47 Land Title Act

Indefeasible title created on registration (s47 LTA)

Two systems

Document based

Private

Old syste

m Registration based

Public

Torrens

system

Sole focus here is…

Document based

Private

Old syste

m

Questions about land title

1. How was it created?

2. Is it legal or equitable?

As a general rule, writing is required to create/acquire an

interest in land

writing signed

May bring action

Creating legal interest in old system land

legal

grant

writing

signed

Property Law Act 1974 (Qld)

• s8: lands lie in grant• s10: assurances of land to be in

writing• s11: Instruments required to be

in writing• s12: creation of interests in land

by parol• s59: contracts of sale etc of land

to be in writing

OLD SYSTEM CONVEYANCE

Example of the process of creating an interest in land

Conveyance/kənˈveɪəns/noun

(Legal)the legal process of transferring property from one owner to another

Conveyancing process

Find property Make offer Offer accepted

Written contract formed

Pay depositInvestigate title

‘Settlement’:• pay balance

purchase price• Legal title passes

Abstract of the title of John David Williams to part of Lot 34 of the Stonelands Estate in the Municipality of Dundas Parish of Field of Mars and County of Cumberland.

16th December 1920 By conveyance of this date made between Adelaide Victoria Johnson of Dundas spinster of the one part and Stella Joan Hamilton wife of Frederick George Hamilton of Petersham Master Builder of the other part

Reciting seisin of vendor in fee simple free from encumbrancesAnd reciting agreement for sale to purchaser for £900

It was witnessed that in consideration of £900 paid etc the receipt etc the said Adelaide Victoria Johnson as beneficial owner Did thereby convey unto the said Stella Joan Hamilton in fee simple

All that piece or parcel of land containing by admeasurement four acres more or less situated lying and being in the Municipality of Dundas Parish of Field of Mars County of Cumberland and State of New South Wales being part of Lot 34 of the Stonelands Estate and being also part of Robert Browne’s one hundred acre grant Commencing at a point on the northern side of Browne Street being the south-eastern corner of Lot 33 and bounded thence on the south by the said Browne Street …

Ad

apte

d f

rom

Ency

clopaedia

of

Form

s &

Pre

cedents

, Le

xis

nexis

, fo

rm 4

0.1

Investigating old system title: chain of title

12th May 1911 Conveyance Charles Baker to Adelaide Victoria Johnson Regd No 500 Book 950

27th November 1912 Mortgage Adelaide Victoria Johnson to Bank of New South Wales Regd No 350 Book 1000

17th June 1915 Statutory Discharge endorsed on last mentioned mortgage Regd No 375 Book 1050

16th December 1920 Conveyance Adelaide Victoria Johnson to Stella Joan Hamilton Regd No 878 Book 1212

16th December 1920 Mortgage Stella Joan Hamilton to Adelaide Victoria Johnson Regd No 879 Book 1212 with Memorandum of Renewal (Regd No 234 Book 1326) endorsed

Adapted from Encyclopaedia of Forms & Precedents, Lexisnexis, form 40.1

Investigating old system title: abstract of title

DEED DATED _________ PARTIES:1. vendor2. purchaserRECITALS:A. The vendor is seised of the land described in the schedule for an estate in fee simple in possession free from encumbrances.B. The vendor has agreed to sell the land described in the schedule to the purchaser for the sum of $_______.THIS DEED WITNESSES:In consideration of the sum of $_______ paid by the purchaser to the vendor (the receipt whereof is hereby acknowledged), the vendor as beneficial owner hereby conveys to the purchaser in fee simple the land described in the schedule to hold unto and to the use of the purchaser in fee simple.deriving title under, the vendor and purchaser respectively.IN WITNESS WHEREOF this document has been duly executed.SCHEDULE[description of land]SIGNED SEALED AND DELIVERED)by the vendor in the presence of:)

[Signature of witness]

Adapted from Encyclopaedia of Forms & Precedents, Lexisnexis, form 40.1

Deed of conveyance: passing old system title

‘Old System’ Mortgage

Money to

borrower

Legal

title to

lender

CREATION OF THE EQUITABLE ESTATE

Interests in land can be legal or equitable

Equitable estate: more than one interest-holder in the same estate

equitable estate

Legal estate

Creating equitable interest in old system land: still requires writing

equitable

grant

writing

signed

Property Law Act 1974 (Qld)

• s8: lands lie in grant• s10: assurances of land to be in

writing• s11: Instruments required to be

in writing• s12: creation of interests in land

by parol• s59: contracts of sale etc of land

to be in writing

Trustee holds legal title

(estate in fee simple)

Beneficiaries hold

equitable title (estate

in fee simple)

The trust

BUT: Equity may also find an equitable interest where a legal one is out of reach

Something might be missing from an effective legal grant

• Or only agreement to grant?

• Walsh v Lonsdale

Grant

• Part performance?

• S6(d) PLA

Writing

Or equity may intervene

Mere equity

Resulting trust

Constructive trust

…and so on

Equitable proprietary interest

Mere equity

Personal equity

Attaches to land

Does not attach to land

EXAMPLESEquitable and legal interests

Old system conveyance

Enter contract

Vendor: legal estate in fee

simple

Purchaser: equitable

estate in fee simple

Settlement

Vendor: conveyance of estate in fee simple

Purchaser: legal

&beneficial estates merge

Old system mortgage

Bank lends $; takes legal estate

in fee simple

Borrower left with equitable interest:

able to redeem

Borrower repays, bank reconveys

estate in fee simple

Agreement to grant

Agreement to lease [satisfies

writing requirements]

Tenant takes possession, pays rent

Landlord seeks to evict

Tenant argues equitable lease

Agt to lease will be enforced as

if a legal interest

Part performance

No writingacts done by party seeking

to enforce

acts relied upon unequivocally, in own nature

referable to agt

Agt concludedTerms of agt provable by

oral evidence

Capable of specific

performance

Think about the interest created...

Type of interest?

Part performance?Writing?Grant?

Consider… whose interest will prevail?

land

interest

interest

interest

interest

Review

Old system title Old system conveyance

Creation legal interest

Creation equitable interest