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Indefeasibility of Title

It is truly asserted that the “register” is a most significant compliance of torrent system of land. The Torrent System protects an interest and title of a bona fide owner by a principle of indefeasibility (Law Explorer, 2017).

Position of unregistered instruments-“The performance of registration is the effective piece to convey title” (Hepburn, 2013). According to this view, owner of registered instrument authorized to disregard any unregistered interest claimed by any third person.

The principle of indefeasibility is that every owner shall have absolute ownership to land on registration (Williams, 2011 and Bant, E. & Harding M, 2010).

  • Section 62, Paramountcy of owner’s estate – a section deals with supremacy of owner over all his estates.
  • Section 63, Protection from ejectment- this section highlights the principle of section 62 where no act shall be brought against an owner for recovery of land.
  • Section 64, Prescription section – this section guards the bona fide owner against cessation of his absolute ownership by adverse possession and prescriptive title.
  • Section 182, Protection from notice- this section state that bona fide owner is not indebted to inquire into notice affected by unregistered interest.
  • Section 183, Protection from defects in vendor's or mortgagor's title- a purchaser is protected against recovery of land, or damages in the case of fraud under any void or voidable instrument.
  • Gibbs v Messer (1891) A.C. 248
  • Boyd v Mayor of Wellington [1924] NZLR 1174 (Registration of a void instrument)
  • Frazer v Walker [1967] 1 A.C. 569 (Registration of a void instrument due to forgery )

(a)  In context of case, the following requisites resolve the mortgagor dispute-

In case of default by the mortgagor, the mortgagee must serve prescribed form notice to mortgagor containing complaints of default. Such default must furnish within 20 working days by mortgagor and in case of default in payment the mortgagee shall exercise lawful right to sell a mortgaged property. After compliance of notice requisites, the section176 of Property Law Act comes into role where Mortgagee may exercise a power of sale, either by mortgagee or through the court (Martin, 2007).

  • Time to assess whether the price is the reasonable price or not.
  • Obligation is not to obtain the best price but to exercise reasonable care to achieve the best price.
  • If mortgagee sells to an interested party, it carries burden of proof on him to prove that he has taken all sound process to obtain best price.

(b) Land covenants specified under Sections 301 to 307 of the Property Law Act 2007 as negative agreement where parties mutually agreed to restrict a use of land in any particular manner or purpose.

Tulk v Moxhay [1848] EWHC J34  is a landmark case in which court held that a restrictive covenant follow with the land where a future owner will be subject to comply such prior restriction of covenant (MacKenzie, 2016). The covenant must fulfill certain obligations:

  • The covenant must be restrictive in nature.
  • The original parties intended to put liabilities over legal heirs also.
  • The land covenant is only applicable to adjoining land (Gibbons, 2017).

According to facts of the case, the land is not attached with neighbour land as it far away from 1000 metres that establish that Dior is not bound by such obligations as it not made with actual physical adjoining of both land together.

(c) As per facts of the case, a right of way is a specific type of easement where an owner permits a right to walk through an area of their neighbour’s land to access property. The right of way places obligation on owner that he cannot inhibit with rights of accessee (Hinde, Campwell  and Twist, 2007).

In this case a property is subject to an easement, the Dior must allow their neighbour section X to access into his land as he is bound to provide a right of way subject to conditions put on section X to limit its excess traffic because a vehicular right of way does not give authorization under section 297, Property Law Act, 2007.

Mortgagor Dispute

(a) As per facts of the case, lessee breached the concrete principle of implied covenants of “quiet enjoyment”. The common rule is that lessee is entitled to enjoy quiet possession where using of premises without interruption of lessor. Simultaneously such right should not violate a concrete principle of quiet enjoyment. Though lessee has a right to quit enjoyment but he exceeds a limitation of such right in this case. Such quiet enjoyment is subject to implied covenants section s 106(a) of prior Property Law Act, 1952 and Clause 6(2) of Schedule 3 of Property Law Act, 2007. An illustrative implied conditions includes that Lessee must not commit nuisance in a lease premises. Thus it would not be appropriate for the lessor to be responsible for all (Hovenkamp.,Kurtz  and Gallanis  (2016).

(b) Under following conditions, unreasonable consent is suspended in section 227 of Property law act, 2007

  • The lessor requires the payment of dues or additional charges, rent, premium or other valued price.
  • When lessee offered use of lease premises for illegal or immoral purposes.

In case of lessor refuses to give consent, he is bound to serve a written notice of refusal to lessee.(c) According to facts of a case, an assignment deed failed due to default of payment by Mr X and he is liable to satisfy outstanding charges under section 241 of Property Law Act 2007. Further, assignee shall also be liable to indemnify all claims and expenses in case of non-payment of rent and other charges under section 242(1)(c) of Act,2007.

(d) This case deals with a matter of fraudulent mortgage. To support a response of a case, a mortgage title of Mr X must get remove. A reference made of case Young v Hoger [2002] QSC 013 where the conduct of a solicitor commits fraudulent mortgage transaction. In this case, the Court held that the solicitor’s conduct in registering the forged mortgage comes under an exception to indefeasibility under section 184(3) (b) of the Land Title Act 1994 and solicitor is liable to punished for the purpose to destroy a valid mortgage transaction (Paul Watkins, 2007).

(a) In the reply of the problem in a case, the owner rely that caveat has been wrongfully recorded, in such circumstance owner has option to apply either to

The High Court on an application to remove caveat in section 143, Land Transfer Act or

The Land Registrar on a written request to remove the caveat in section 191(e), Real Property Act 1886.

In support of his allegation owner must prove that the caveat is not supported by a legitimate caveatable interest and following foregoing process (Law handbook, 2016)

Land Covenants

For removal of ambiguity a case problem supported by a principle of qui prior est tempore potior est iure (first in time takes priority), Such Principles contains rule of “first in time”. To reverse priority of prior equity holder, the burden lies on the subsequent equity holder. The court may consider the second equity on a basis of conduct of both equity holders (Dixon, 2009). In this instant case, a priority firstly given to bill as his equitable interest created first.

(c) The Maori Land Act governs all Maori freehold land and the titles to Maori in the Maori Land Court. The general rule of sale in any M?ori land that to confirm approval of the preferred class of alienee (PCA). Such preferred class of alienee includes any person residing within the local limits of jurisdiction of Moari Land Act. As per facts of the case, Ana had not complied with certain requirements of sale and consequently a sale by Ana is not recognized as valid sale (Moari Land Court, 2017). Such requirements are

  • Non Serving of a sufficient notice to a member of the PCA.
  • Any negotiation offers of a price.
  • A conditional agreement prepared to sell the land outside the preferred class.

(d) The general rule is that body corporate is liable to maintain the particular unit property for the purpose of its expansion. All proprietors of property contribute the cost of repairing and maintaining with body corporate tax. Though the body corporate can oblige unit owners to pay under following circumstances:

  • If labour due to negligence of unit owner or who intentionally causes a substantial damage to the property.
  • Any work carried out  for the purpose of infrastructure of building units
  • For the purpose of providing profits to some other unit owners (Ministry of Business, Innovation and employment [NZ], 2017)

(e) As per case, the ruling of Williams & Glyn’s Bank v Boland [1981] AC 487  House of Lords supports a response that wife has an overriding beneficial effect which cannot curtail her entitlement to ownership of unit title. Thus court shall not grant the order of sale in favour of cheap as transfer was not made within the knowledge of nika (King, 2015).

References

Bant. E., & Harding M. (2010). Exploring Private Law. Cambridge University Press.

Dixon M. (2009). Modern Land Law. Routledge.

Hepburn S. (2013).  Australian Principles of Property Law. Routledge.

Hinde G. W., Campbell N. R., & Twist P. L. (2007). Principles of Real Property Law, LexisNexis.

Hovenkamp H. Kurtz S. and Gallanis T. (2016). Principles of Property Law. West Academic.

King S. (2015).  Beginning Land Law. Routledge.

Law Explorer, The Torrens System (2017). Retrieved from https://lawexplores.com/the-torrens-system/#ch11fn5.

Law handbook (2016). Retrieved from https://www.lawhandbook.sa.gov.au/ch23s08s01s04.php

MacKenzie, J.A., (2016). Textbook on Land Law. Oxford University Press.

Martin. T. (2007). A Concise and Practical View of Conveyancing in New Zealand, Including the Land Transfer System. Whitcombe and Tombs.

Ministry of Business, Innovation and employment [NZ]. (2017). Maintenance responsibilities in unit titles. Retrieved from https://www.tenancy.govt.nz/uta/maintenance/

Moari Land Court (2017). Retrieved from https://www.maorilandcourt.govt.nz/.

Paul Watkins, (2007). Fraud in Conveyancing. A paper presented at the Australian Institute of Conveyancers 2007 National Conference. Retrieved from https://www.stewartau.com/multimedia/relatedmedia/Fraud_in_Conveyancing_AIC_National_Conference_Paper_2007.pdf

Gibbons (2017). The Structure(s) of Property Law. Retrieved from https://www.lawsociety.org.nz/practice-resources/practice-areas/property-law/the-structures-of-property-law.

Williams G. (2011). Property and Trust Law in New Zealand. Kluwer Law International.

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