Fundamentals of Property Law - Assignment Example

 Assessment (Total Word Count: 1500) Part One (750 words) 1. Is the registration of Lowe as a proprietor free from encumbrances indefeasible? Give reasons for your answer. (225 words)
 The registration of Lowe as a proprietor free from encumbrances is impossible. First of all, the property is not without encumbrances because of the whole issue with the mortgage having been discharged illegally. “The expression 'the fee simple of the land' naturally means the fee simple as the highest estate unencumbered and subject to no conditions.”1 Because the discharge of the mortgage was forged by Brown, the property naturally has some encumbrances. The deal has fallen through basically because of the whole debacle with Brown, who was hired by Hollis. In order for Lowe to acquire the property, everything must be resolved regarding the discharge of the mortgage. As it stands, just because Hollis possessed the land did not necessarily mean that he had total ownership. “Under the existing law of real property, the mere possession of land did not prove ownership conclusively.”2 As such, it must be noted that a fee simple is the closest thing to absolute ownership in Australia that one can have, however it does not mean that one necessarily completely owns the property. This may be difficult to understand, but basically it is a guarantor that someone cannot just blatantly take over someone else’s property if there are encumbrances upon the piece of land being sold, similar to liens in other countries. 2. Advise on the interest that Phil has in Savacre. Would it make any difference to your answer if Phil’s lease was only for a period of one year? (325 words) Phil has several options here. For starters, he may decide to sue Lowe for having acted upon his intention to demolish the property before Phil’s lease was up. Another issue to consider is the fact that Hollis may be getting a capital loss from the property. “[T]he owner of a building could grant a rent-free lease over the building to an associate, and possibly crystallise a capital loss if it then sold the encumbered property to a third party at its reduced market value.”3 Lowe served Phil a notice to quit, but that is not legal, especially considering the fact that the deal was “quick and dirty.” Phil most certainly has a right to rescind his lease. There are situations “where the vendor deliberately conceals information about the business with the intention of inducing the contract. This may amount to fraudulent misrepresentation or fraudulent concealment, both of which will allow the buyer to rescind the contract.”4 This definitely qualifies in this case because of the fact that Brown fraudulently forged the discharge of the mortgage. In this case, Frazer v Walker [1976]5 would definitely be a precedent that reinforces this idea. Also, the fact that Phil was given a notice to quit does not mean that Phil must necessarily leave. “If the landlord wants [one] to move out of the property, they must give [one] a valid Notice to [Quit]…It is important to note that just because you receive a Notice to [Quit], it doesn't…mean [one must] move out.”6 As one can see, notices to quit are not always given in a legal manner, nor are they subject to strict regulation. “On the same day a notice to quit dated 15th June 1967…[there was a notice to quit] duly served upon [someone]… [there was also a] stage involving the [legally questionable] demolition of…part of [a] building upon the land acquired from the London Bank of Australia Limited.”7 Brown, who was a fraudulent agent, is mimicking the exact same type of behavior as in Young v Hoger [2001].8 Part Two (950 words) 1. Can Pat successfully claim easements over Mark’s land? (100 words) Pat may be able to successfully claim an easement over Mark’s land because of the shared pathway. Pat was entitled to her easement as relegated by the language of the document she signed. As stated, “A clause of the agreement said that the purchaser undertook not to use the premises for any purpose other than the ‘manufacturing and sale of new or repaired canvas awnings and annexes and camping equipment’.” As such, Pat has every right to declare that the laneway in between both Lots 1 and 2 was an easement due to the legal ramifications. It’s supported by law. 1a. If so, then on what basis and to what remedies would Pat be entitled? (350 words) 

 The ventilation systems of the two buildings were connected—in other words, the systems basically consisted of openings that faced each other. Consequently, it was noted that particles of sawdust passed into Pat’s premises and on to her products both from Mark’s premises and from his bins outside. The sawdust caused problems for Pat’s working conditions, collecting on the floor, on the machinery, and on raw or finished materials. It frequently stained Pat’s canvas products, so that they could not be sold at full price. 

In addition to that, the delivery of raw materials to the premises of both businesses was by means of the laneway. This was significantly narrowed by bins of timber off-cuts arranged alongside the wall of Mark’s building and overflowing saw dust, making it impossible on occasions for delivery vehicles to enter. It also discouraged customers from entering Pat’s premises to inspect her merchandise, as this would require them to walk through sawdust sometimes 30cm thick. Since Mark’s encroachment upon Pat limited her business ventures, she is liable to sue under Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd [2001].9

 In terms of remedies, Pat would be entitled to reimbursement by Mark on numerous accounts. First of all, the ventilation was rudimentary in terms of not being able to be encroached upon by Mark’s materials and sawdust. Secondly, the bins outside were being covered with sawdust. Pat could be reimbursed for punitive damages in terms of emotional trauma due to the fact that her business was put in a tailspin by Mark not having arranged his materials and disposing of his sawdust properly. Pat would have to be reimbursed for the products she could not sell at full price due to sawdust being on them. Additionally, any fees incurred for delivery of products—and inability to do so—should also be paid for by Mark. Monetary damages in the amount equal to normal business that Pat would have done should be paid for the amount of time that the bins of timber cut-offs made it impossible for vehicles to enter, and also which discouraged customers from entering Pat’s premises to inspect merchandise based on the fact that there was too much sawdust everywhere. All this should be duly annotated. 2. Would the covenant contained in the sale agreement be enforceable by Pat’s successors-in-title: (i) Against Mark? (275 words) 
 Unfortunately, the real tragedy here is that Pat has almost no legal recourse as specified in the sales agreement. The only real progress that she can make is make sure that she is reimbursed for ventilation not being adequate, because that was really all that the document stated. There was no mention of what would happen if blockage to the easement caused significant damage to Pat’s business. Thusly, Pat should have taken this into consideration before she signed the deal. She should’ve had a lawyer or some other second and even third party perhaps look over the document before she bought Lot 1. Again, unfortunately Pat does not have much recourse according to the law, because what was stated in the signed deal is really all that Mark has to legally adhere to, which isn’t much. That having been said, the real liability here lies with Pat, in some sense of the word. If she was responsible enough to buy a lot, she should have been responsible enough to work out the terms of the deal with regard to the easement. Now all she has is bad ventilation and a whole host of other problems which were not covered in her deal with Mark. Now she is going to have to live with her hastily-made choices, and thus could possibly go out of business because of this whole debacle. Of course, all of the events that occurred in this case study scenario are indeed an unfortunate sequence of events, however, that does not excuse Pat from not having been cautious when she signed the deal. She will be liable for most of her own damages. (ii.a) Against a successor-in-title to Mark? (15 words) 

 Mark’s successors-in-title couldn’t ‘use the land [affecting] passage of light and air to the factory.’ (ii.b) And if so what would Pat’s remedies be? (210 words) Pat’s possible remedies could include taking the case to court against Mark. However, the only problem with that is, Mark could decide to countersue for baseless allegations, which would further put Pat in financial jeopardy. She is already losing or has lost most of her business income, and she is probably not in the best financial situation what with much of her business income having been significantly lowered due to Mark’s indiscretions. One obvious remedy that Pat can complain about is the fact that the ventilation was bad. If she was able to find a solicitor who could then were to successfully extrapolate the point at hand to make the argument that Mark also had not lived up to his duties as joint owner of the easement, that might be one possible defence in court. However, that might be difficult to prove, unless Pat took some photographic evidence showing the sawdust, the blockages of the laneway by the bins of cut-off timber, and other evidence that would show the amount of sawdust lying around which prevented both vehicles and people from coming near the laneway with any ease. With such photographic evidence, she might have a chance at building her case and suing Mark for capital losses to her business. Reference List Buck, AR (2006). The making of Australian property law. Australia: The Federation Press. Christensen SA & Duncan WD (2009). The sale of businesses in Australia. Australia: The Federation Press. The Commonwealth law reports: cases determined in the High Court of Australia, Volume 121 (1969). Australia (High Court): Law Book Company Ltd. Hyam AA (2009). The law affecting valuation of land in Australia. Australia: Federation Press. Notices to vacate. (2010). [Online]. Available: . Woellner R, Barkoczy S, Murphy S, & Evans C (2009). Australian taxation law 2009. Australia: CCH Australia Limited. Table of Legislation Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd [2001] FCA 1672. Frazer v Walker [1976] 1 AC 569. Young v Hoger [2001] QCA 253. Read More