Land Law For Torrens System And The Old System: Joint Tenancy And Tenancy In Common

Discuss about the case study Land Law for Torrens System and the old System.

The difference between the Torrens system and the old system of deeds essentially is that the former is a registration system from title to land and not just, as it was with the old system, instruments registration from which the land’s title was derived. It is in the case of Re Lands Titles Act that the position of Torrens’ Title of Land has been stated most aptly:

• It is not upon the instrument’s execution but upon the registration that interests and estates pass.
• It is not from execution time but from registration that the priority dates.
• Except in the case where the owner frauds, the owner who is registered shall hold the interests or estates free from everybody subjected only by reservations from statutes.
• A transfer taken b a person from an owner who is registered not affected by another’s unregistered interest or equity, except if there has been a fraud on his part.

The Act’s scheme it is said has been to substitute title by way of registration with title by way of deed.

The Torrens system aspect which has no counterpart in the old system is that of the use of caveats. A person, who claims of having in the subject land an interest, called the caveator may lodge a caveat. The caveat’s effect is that which is akin to that of an injunction meaning thereby in the situation where a caveat has been placed on the title, there can be no dealing which can be registered against the claim.

Joint tenancy is where the right is shared by each of the joint tenants of the property with the other joint tenant(s) of the said property. The property’s ownership is conceived not as being holder who own different shares, but rather being in the whole property an ownership which is jointly by such joint tenant(s).

In case of joint tenancy when one of the joint tenant passes away then this interest held in the property is distinguished automatically and it is taken over the tenants that survive the deceased tenant. Even if there is will that is left by the joint tenant in an attempt of leaving the person’s share to another individual other than the joint tenant this will still occur.

On the other hand when the property is held by joint owners as tenants in common then there is a separate share in the said property that each of the co-owner has. It is not necessary that these shares be equal in size meaning thereby there will be separate portions of this property which will be held by the owners. This is the fundamental difference which is there between joint tenancy and tenancy in common. There is specific share which is owner in tenancy in common of the property. Right of survivorship does not exist in tenancy in common. There is a specific share of property to each tenant under tenancy in common. The fact that there is no right of survivorship means that at the time of demise of one of the tenants his interest in the property passes to the person’s estate and is bequeathed as per the will of the person and in case there is not will then to his heir.

Tenancy in Common

For Native Title to exist it is necessary that the conditions be met of there being a possession of interests and rights under the current traditional law which is acknowledged and the currently observed traditional customs by the Indigenous people which are relevant. It is necessary that there be established a connection of the Indigenous people with the area which is in question by the traditional customs and laws. The High Court in the year 1992 in the Mabo decision[5] recognized the native title of the Meriam People over the Torrest Strait as their traditional lands. This decision was a landmark decision which led to the protection and recognition of the native title through the introduction of the Native Title Act

There can however be extinguishment of the Native Tile because things which have either been done by the government or have been allowed to be done by others over a given area which is not in consistence with the native title. As per section 11 of the Native Title Act, there cannot be extinguishment of the native title in contrary to the Act. Meaning thereby only an act which consist of amendment, repeal or making of a legislation by the Common Wealth on or after 1^st July, 1993, a Territory or a State can only extinguish the native title either in accordance with Act’s Division 2B in which confirmation of past extinguishment of the native title are dealt with or  Division 3 in which the native title and future act are dealt with or by validating the acts that have be done in the past or intermediate acts with respect to the native title.

What are the legal issues which may arise in the given situation?

In the tenant and landlord field in particular where the leases are in commercial in nature, such as in the case of Kathy and Andrew since the property has been leased for commercial purposes, due to the expression being length with respect to the parties’ intentions, there are certain terms which are implied against the land. The most common application of the terms that are implied are those which are implied under law, such as covenants of giving the tenant quite enjoyment of the premises and not derogating the grant. However in this case since there has been continuous disturbance by Kathy in the quite enjoyment of Andrew over the premises due to the various works of construction and the continuous noise, this implied term is not being fulfilled by Kathy. Even though these covenants may not be express it would however be implied by law since there exists a relationship of tenant and landlord.

Native Title

The doctrine has been developed by the court of “quiet enjoyment” under common law. This mean that it is upon the landlord to ensure that the right of tenant of occupying and using the premises is enjoyed without any interference that is substantial.

It is a question of fact as to what would be considered as substation. In the situation like the lease between Andrew and Kathy where it is for a particular business of the tenant which is being carried out in the premises and it was for this purpose with the knowledge of the landowner that the premises had been leased, it would be that business which would become the framework for analyzing whether there has been interference in the tenant’s possession. The premises lawful and ordinary enjoyment is that which is protected by interference which is substantial. Conducts such as hoarding or scaffolding the premises which leads to the decrease in the customer flow has been previous included as disruption in quiet enjoyment by courts. Thus the fact that there has been scaffolding by Kathy would lead to disruption of quiet enjoyment which has led to impeding the customers of Andrew.

It has been further stated that the repairing of any defect which is inherent has be stated, in dicta, to be beyond the tenant’s scope of any obligations which may be contained in a covenant for repairing by the tenant.

At law, in all the leases there is an implied obligation on the landlord for providing with quiet enjoyment and not derogating from the grants.   The terms may be implied in fact in the second case for giving effect to the intention that is presumed of the parties. There are various categories of terms which are implied in fact the most important is that of questions related to repairs in terms which are implied for the efficiency of the business. The terms which are implied to me met have been mentioned in the BP Refinery case  stating that it should be:

• Equitable and reasonable;
• Necessary for giving efficiency of business to the contract so if the contract is effective without it there will be no terms which will be implied
• So obvious that there is no need for stating it
• clear in expression; and
• not in contradiction with the other express terms of the contract.

It has been assumed by lease interpreters from generations from the judiciary to the practitioners that even where there are obligations of repairing the premises which have been mentioned to be expressly that of the tenant, the matters which have not been listed would be the responsibility of the landlord. The examples which are common of these responsibilities include disrepair to the structure and disrepair which has been caused due to the fair wear and tear. In the case of Regis Property Co Ltd v Dudley, there was an obligation that had been mentioned expressly that an express obligation was there on the tenant for keeping the flat in a substantial and good repair and sanitary and clean condition (there was an exception of accidents by fire and fair wear and tear). It was stated by Lord Denning which interpreting this clause and speaking with respect to fair wear and tear the following dictum was made that when a tap’s washer wears out it needs to be remedied, or there is regulation of cistern which is required, leak in the radiator, the liability would not be on the tenant. For getting the full rent it would be necessary for the landlord to pay the entire rent. This part of the burden shall be upon him.

Legal Issues in Tenant and Landlord Field

However, in the case where there are no covenants with respect to repairs, then neither of the parties are obliged to undertake any of the repairs Barrett v Lounova (1982) Ltd. Thus in either of the situations the tenant cannot be forced to make the repairs. If the there are specific covenants with exceptions then the fair wear and tear repairs such as the carpet, the tap in the bathroom, the cracked old tiles and the painting of the premises would be that of Kathy. But in the case no such covenants are there then neither of the party can force the other for repairs, the same would have to be negotiated.

In case Andrew wants to sublet his premises it must be kept in account that there cannot be sub-letting without the landlord’s. Thus, if Kathy does not consent he cannot sub-let. However, this consent cannot be withheld by the landlord unreasonably. If this is withheld by the landlord without a reasonable ground then the tenant may approach the tribunal for the landlord’s consent. However, if the assignment of the premises is made without the consent of the landlord then a notice for vacation of the premise can be given by the landlord , in this case Kathy, and an application of eviction be made to the tribunal.

References

Moore, Anthony P, Commercial And Residential Tenancies (Thomson Reuters, 2008), page 4.

O'Connor, Pamela, "Double Indemnity - Title Insurance & The Torrens System" (2003) 3 QUT Law Review

Saligari, Naomi, The Law Handbook 2014 (Fitzroy Legal Service, 2014)

Stephenson, M. A, Mabo (University of Queensland Press, 1995)

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1978] 52 ALJR 20

Breskvar v Wall [1971] 126 CLR 376

Browne v Flower [1911] 1 Ch 219, 225–6

Budd-Scott v Daniel [1902] 2 KB 351, 356

Byrnes v Jokona Pty Ltd [2002] FCA 41

Ferguson v Registrar of Land Titles (Sask, CA) [1953] 1, (D.L.R. 36)

Graham v Markets Hotel Ltd [1942] [1942] NSWStRp 43; 43 SR (NSW) 98, 103

Kazas & Associates Pty Ltd v Multiplex (Mountain Street) Pty Ltd [2002] NSWSC 840

Mabo v Queensland [No 2] [1992] 175 CLR

Markham v Paget [1908] 1 Ch 697

Butt, Peter, Land Law (Thomosn Reuters, 6th ed, 2010)

Regis Property Co Ltd v Dudley [1959] AC 370

Duncan, William, ; Christensen Sharon --- "Exemptions From A Tenant's Express Obligation To Repair: Is The Landlord Responsible By Implication?" [2004] Deakinlawrw 27; (2004) 9(2) Deakin Law Review 621 (2016) Austlii.edu.au <https://www.austlii.edu.au/au/journals/DeakinLawRw/2004/27.html#fnB3>

NATIVE TITLE ACT 1993 (2016) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/>