Fundamentals of Property Law - Essay Example

? FUNDAMENTALS OF PROPERTY LAW of the School: Question One Fee simple is one type of Freehold estates. It refers to an estate in full form. It also grants the widest property rights as much as possible to the owner. It represents full beneficial ownership of the land by the owner, and the owner is under no conditions and he also owns the land for an indefinite period. An estate which is fee simple is equivalent to the fully ownership of the land. The owner has rights over the property and he can exercise power over and upon it. In this case, Mal have ownership right rights over the land and he can transfer it to any one he may wish. In this case he has decided to transfer the land to Sam, where he has sold the land at a total of $120000. In the case Gunana v Northern Territory (2007) 153 FCR 349 at [83], there was determination of the owner of the title of the land. But the owners of the land had reconsider their honours to the effect of the operation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA). The act was on the operation of the Fisheries Act 1988 (NT) and the powers of the director of the fisheries had to appoint pursuant to act in the legislation. The court judgment was that land was fully owned by the traditional Aboriginal owners. The ALRA held that the owner has the right to exclusive possession of both the water and the land. This stated that since the owner was given the fishing license, no one else was authorized to fish in the land and also in the water. If someone wanted to access the land, one had to obtain permission from the owner (Strelein 2010) In the case Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors (2008) HCA 29, the court ruled that the owner of the land had exclusive rights over the possession of the land. The owner had all the marine property within the land. The right over the water in the land was not derived from native title, but it was delivered from Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In the case Gawirrin Gumana v Northern Territory of Australia (No. 2) [2005] FCA 50, it was decided that a title cannot exist in territorial waters. It was also decided that a title cannot exist in the inter-tidal zone. The owner had no right to exclude other people who had been given the same title and who were the native holders of the title. It was also decided that the owner was not allowed to deny the native holders of the title the right to fish and hunt (McHugh 2011). The legal issue in this case is that, initially, Mal was the owner of the property. Since he agreed to sell the property to Sam and he also signed the transfer forms, the property no longer belonged to him. When Mal also agreed to sign the letter for the authorization of the delivery of the certificate to Sam, he had already made his decision to sell the property to Sam, though Sam had not yet paid him the money. Mal should not claim that he was tricked by the Harry’s solicitors since he had agreed to be paid later by Sam. If he wanted to claim the money from Sam, he would have given him the conditions of selling the property. He would not have agreed to sell the property on credit. Though they had made an agreement that Sam was to pay him at the end of six weeks, Harry has a right of claiming the certificate so that he can lend the money to Sam. Question two The question is based on Absolute, determinable and conditional interests. Absolute grants refer to interests which no conditions are attached. In this grant, there is no requirement of either non occurrence or occurrence of any situation or any particular or given event. When the grant is determinable, it means that the interests will be automatically terminated on the occurrence of the event which was specified. In determinable grant the following words are used during, while, until and as long as. In any case the event becomes impossible, the interest automatically becomes absolute (Clarke and Kohler 2005). A grant can also be conditional. If condition the word such as provided that, on condition that, and but if are used. This means that the interest will not arise, unless the condition is fulfilled or met. It also means that the interests will automatically terminate if the condition is not met at all either in the present or in the future (Preston 1828). Sometimes, the limiting event is invalid. In any case that the limiting event becomes invalid, for a determinable interest, the whole grant fails and the interests which were attached are reversed to the original grantor. For the conditional grant, in case the event becomes invalid, the grant automatically becomes absolute. There are some conditions for an event to be declared invalid. Such conditions are: the event is illegal and contrary to the public policy, the event is declared contrary to the course of the law and when the event is absolutely uncertain. In this case there is a condition that Jack was to support Chad in his mayoral campaign so that Chad would extend his repayment period. In the case Brandon v Robinson (1811) 18 Ves 429, HL, the testator had transferred his property by will on trust for sale that his children should get equal shares. He had also given special instructions that the shares of his son who was called Thomas should be invested and he should be given interest ‘provided that’ the income from the investment was not assignable, grantable or transferable. After some time, the son became bankrupt. The interests of the investment became absolute and Thomas was entitled to pay the creditors. The court held that the creditors of Thomas who was bankrupt were entitled to be paid and they were also entitled to the property (Ramjohn 2008). In this case concerning Jack and the bank manager, the event was invalid and Chad was not entitled to sell Jack’s property. As discussed above, there are limitations on the creation of the events. In this case, the event is on political grounds and it should have failed. If Jack was to sue Chad, he would claim that the event was created on political grounds and such an event is not valid. If Chad wanted the condition to take effect so that he can go on and sell Jack’s property, he would have made a valid condition for Jack to fulfill. Again those are personal arrangements and should not be attached in the repayment of the mortgage loan that Jack had. By condition Jack to support him in his political ambitions, he was again creating an invalid condition since he denied him his political rights. An event should not deprive one or deny one his or her political or any other rights entitled to him. So, this was an invalid event. Chad has no right of selling the property of Jack on the grounds that he refused to support him in his politics to become a mayor. It is a condition that a valid event should not illegal, contrary to the public policy, contrary to the course of the law, uncertain and it should not take away the power and rights of an individual. The event in this case wet against all the conditions and there it was invalid. Jack should be given back his property and he should not be made to evacuate by the bank officials or the auctioneers. He should make arrangements with the bank on how he should settle the loan arrears. Conclusion The law is very clear and if applied correctly, it should deliver just to everyone be it the plaintiff or the defendant. Legal procedures should be applied correctly and justice delivered to everyone. In the first question, Mal should not claim his property back. He is the one who has allowed the transfer of the certificate without being paid. In the second case, just for Jack should be delivered. Chad should not be allowed to take advantage of him and sell his property because he does not support his political opinions. He should be allowed to choose the person he wants to support in the campaign. He should not be victimized by the bank manager and the court should terminate the sale of his property. This because the event is not valid for which Chad, the bank manager created for him. References Mohamed Ramjohn (2008). Text, cases and Material on Equity and Trusts. New York: Taylor & Francis. Horace E. Whiteside, Albert Martin (1936). Future Interests and illegal conditions and restraints. New York: West John Melville Gould (1901). Commentaries on American Law. New York.: Little, Brown. Alison Clarke, Paul Kohler (2005). Property Law: Commentary and Materials. New York: Cambridge University Press Richard Preston (1828). An Elementary treatise on estates. New York: O. Halstead. Massey (2010). Emanuel Law Outlines. New York: Aspen Publishers. Simon Young (2008). Trouble with Tradition: Native Title and Culture Change. New York: Federation Press. Paul G. McHugh (2011). Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights. New York: Oxford University Press. Lisa Strelein (2010). Compromised Jurisprudence: Native Title Cases Since Mabo. New York: Aboriginal Studies Press. Read More