دانلود کتاب Sackville & Neave Australian property law

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Full Title Copyright Preface Preface to the First Edition Acknowledgments Table of Cases Table of Statutes Abbreviations Table of Contents Chapter 1 The Concept of Property Introduction What is property? The right to use or enjoy The right to alienate The right to exclude Property rights and contractual rights Licences: bare, contractual or coupled with an interest Licences and original parties Licences and third parties Property rights and the rights of persons Are persons property? Property and body parts Property rights and privacy Property and the right to work Property rights and civil rights Property rights and human rights The traditional classification and terminology Land, or realty Boundaries of land Air space rights Chattels, or personalty Boundaries between different types of property The boundary between land and chattels: fixtures The doctrine of fixtures Tenant’s fixtures Right to remove Agricultural and residential tenancies Chattels annexed without permission The boundary between adjoining landowners The doctrine of accretion Encroachments Land bounded by water When chattels merge: the doctrine of accession Chapter 2 Possession and Title Introduction Why protect ‘possession’? Possession of goods Remedies The plea of jus tertii Possession by a bailee Claims by bailee against a third party Claims by a bailor against a bailee The rights of finders Finder and occupier of land Finder and employer Abandonment of goods Land Title in actions to recover possession of land Relativity of titles under the Torrens system Assignment of the interest of a person dispossessed by a squatter The self-help remedy Forcible re-entry Limitation of actions How possessory title extinguishes documentary title with the passage of time Justifications for the rule of adverse possession Adverse possession and good faith Adverse possession and human rights The length of the limitation period Commencement of the limitation period General principles Persons presently entitled to possession The elements of adverse possession Possession amounting to a criminal offence not relevant Adverse possession claims to part parcels adjacent to boundaries Does possession of part of a lot amount to possession of the whole? Future interests Equitable estates Adverse possession by a co-owner Successive adverse possessors Stopping time running Extension of time The effect of effluxion of time Tenancies Chapter 3 The Fragmentation of Proprietary Interests in Land Introduction Fragmentation in a spatial dimension: the doctrine of tenure No services No incidents Fragmentation in a temporal dimension: the doctrine of estates Introduction The estates — general Fee simple Fee tail Life estate Leasehold estates Creation of freehold estates — words of limitation Fee simple Fee tail Life estate Statutory modifications to the common law Determinable and conditional interests General Effect of void contingencies When will a condition be void? The doctrine of waste Legal future interests Reversions and remainders Vested and contingent remainders Fragmentation between legal and beneficial ownership: equitable interests in land The development of the use Substitute for wills Avoidance of feudal burdens Providing for grantor’s wife Avoidance of the Statutes of Mortmain Creation of new future interests Enforcement of uses The Statute of Uses 1535 The Statute of Wills 1540 The development of the trust Equitable estates and wills Reform of future interests Systemic fragmentation of interests in land: the common law, tenure and native title Introduction The doctrine of tenure after Mabo Is native title a proprietary interest? The Native Title Act 1993 (Cth) The nature and incidents of native title What rights does the native title ‘bundle of rights’ contain? Connection with the land The extinguishment of native title Grant of a freehold estate Pastoral leases and extinguishment Leases conferring rights of exclusive possession Leases containing reservations in favour of Indigenous inhabitants Statute Chapter 4 The Acquisition of Property Rights and Equitable Property Introduction Acquisition through taking possession Land and goods Chattels — wild animals Manufacture or creation of objects Patents, copyright and trademarks Consensual transactions with proprietary interests — legal and equitable Sale Goods Formal requirements for the contract for sale of goods Land — legal and equitable interests The sale transaction — real property Formal requirements for the passing of a legal interest in land Formal requirements for contracts for the sale of land The equitable doctrine of part performance Equitable interests arising out of enforceable contracts Gifts Land Express trusts Formal requirements Equitable doctrines: resulting trusts, constructive trusts and estoppel Resulting trusts Constructive trusts Common intention constructive trusts Constructive trusts based on unconscionable use of legal title Legislative reform State and Territory legislation Acquisition of an interest in property by estoppel Proprietary estoppel Equitable estoppel Remedies in cases of estoppel — proprietary or compensatory; expectation-based or detriment-based? The problem of minimal detriment Equitable priority rules Introduction Enforceability of legal interests in old system land Earlier legal interest against later legal interest Equitable interests against legal interests Earlier legal interest against a later equitable interest Prior equitable interest against a later legal interest The principle The statutory definition of notice Enforceability of equitable interests Prior equitable interest against a later equitable interest Enforceability of equities Earlier equity and later equitable interest Chapter 5 Title to Land: The Torrens System Introduction ‘General law’ or ‘old system’ land The deeds registration system Registrable instruments and the effect of registration The Torrens system Bringing land under the Torrens system Compulsory extension of the Torrens system The principle of indefeasibility The indefeasibility provisions Deferred vs immediate indefeasibility The adoption of immediate indefeasibility The policy debate over deferred and immediate indefeasibility Immediate indefeasibility in the states and territories Instruments void for defects other than forgery Indefeasibility of the terms in a registered instrument What is indefeasible in a void mortgage? Indefeasibility and the all moneys mortgage Relief for the ‘statutory mortgagor’ under the Consumer Credit Code Volunteers Exceptions to indefeasibility The fraud exception Fraud distinguished from carelessness Statutory provisions to impose a duty on mortgagees Fraud and agency False attestation of instruments Fraud against the holder of a prior unregistered interest Supervening fraud Rights in personam (the ‘personal equities exception’) The types of causes of action that can be asserted against a registered proprietor The requirement of an element of unconscionability Special equity cases Personal equity and breach of trust Personal equities and mistake Personal equity and unlawful action by public authorities Personal equity and easements Conclusions on the scope of the personal equities exception The register Registrar’s powers of correction Other exceptions to indefeasibility Reservations and exceptions in Crown grant Short-term tenancies Easements Adverse possession Rates and taxes Overriding statutes Insuring the risk of unrecorded statutory charges Recording of statutory charges etc Equitable interests and unregistered instruments The caveat provisions Caveatable interest Does a registered proprietor have a caveatable interest? Requirements for caveats Application for removal of caveat Caveats lodged without reasonable cause Competing equitable interests The significance of notice in equitable priorities Statutory protection for the purchaser between settlement and registration Compensation for loss Last resort or first resort Circumstances giving rise to claim Loss resulting from error or omission Loss resulting from fraud Loss resulting from registration of another person Restrictions on claims Limitation period Measure of damages Strata titles legislation Leasehold scheme Tenancy in common Home unit companies Chapter 6 Co-ownership Introduction Joint tenancy — essential features Tenancy in common — essential features Creation of co-ownership — joint tenancy or tenancy in common? At law In equity Business partners Money advanced on mortgage Unequal contributions to the purchase price Statutory reform Co-ownership and the Torrens system Rights of enjoyment inter se of co-owners of land Rights of occupation Occupation rent Ouster The quantum of occupation rent Accounting for rents and profits The Statute of Anne Statute of Anne not applicable Compensation for repairs and improvements to land by one co-owner Liability for waste Disposition of interests by co-owners Severance of joint tenancy Modes of severance Severance by unilateral act Severance by transfer to a stranger Declaration of trust Does grant of a mortgage or a lease sever a joint tenancy? Severance by agreement Severance following a course of dealing Severance following homicide Severance by court order Severance upon bankruptcy Termination of co-ownership Land The Partition Acts Statutory trusts Chattels Legislative reform Chapter 7 The Alienability of Proprietary Interests Introduction Judicial doctrines — restraints on alienability The rule against perpetuities Background The rule Statement of the rule Vesting of interests Presumption in favour of vesting The commencement of the perpetuity period Lives in being Certainty of vesting: unborn widows, fertile octogenarians and others The statutory wait-and-see rule Reduction of age contingencies Application of saving provisions The class-closing rules Reform of the all-or-nothing rule Subsequent interests Legal contingent remainders Possibilities of reverter and rights of re-entry Accumulations The Perpetuities and Accumulations Act 1985 (ACT) and the Perpetuities Act 1984 (NSW) Chapter 8 Leases Introduction Residential tenancies Retail tenancies Agricultural tenancies Leases under the Crown Lands Act Other tenancies The general law of landlord and tenant Terminology Creation of leases Substantive requirements Certainty of duration Exclusive possession Exclusive possession — further exceptions Formal requirements Torrens title Old system Agreement for a lease Implied tenancies at law Yearly periodic leases Other implied periodic leases Tenancy by estoppel Concurrent leases Reversionary leases The doctrine of interesse termini Covenants Introduction Covenants implied by law Quiet enjoyment Remedies Obligation not to derogate from grant Liability for acts of others Implied condition of fitness for habitation The obligation to repair Duty to take reasonable care for the safety of occupants Tenant’s obligation to use the premises in a tenant-like manner Tenant’s obligation to yield up possession Covenants implied by statute Statutory implied obligation on tenant to repair Statutory implied right of landlord to inspect premises Statutory implied right of re-entry Covenants by necessary implication Express covenants Covenant to repair Exception Inherent defects Measure of damages The covenant against assignment or subletting Covenant as to user Covenant to pay rent Option to renew The enforceability of covenants after assignment Privity of contract Assignment of the lease — privity of estate Assignment of the reversion Remedies Forfeiture of lease by landlord Enforcement of the right of re-entry No right to forfeit if breach waived Forfeiture must be effective Relief against forfeiture Self-help Remedies of landlord and tenant in contract Repudiation, notice and relief against forfeiture The plea of set-off Bonds Statutory remedies Residential tenancies Introduction What is a residential tenancy? Creating residential tenancies Types of tenancies Parties’ obligations Quiet enjoyment Repairs Urgent repairs Rent Introduction Bonds Termination Termination by notice: without any ground Termination by notice: following breach Order for termination and possession Tribunal Chapter 9 Planning Land Use by Private Agreement: Freehold Covenants Introduction Privity of contract The running of covenants at common law The burden The benefit The running of covenants in equity The burden Covenant must benefit the land Covenant must be negative in substance Covenant must be intended to run with the land Covenant as an equitable interest The benefit Annexation of the benefit of the covenant to the land Express annexation Statutory annexation Identification of the land The covenant must ‘touch and concern’ the land Express assignment of the benefit of the covenant Creation of a building scheme Common vendor Benefit to all purchasers Purchase on footing that restrictions would enure to benefit all lots Planning instruments Construction of covenants Discharge of restrictive covenants By operation of law By agreement By statute Restrictive covenants and the Torrens system Chapter 10 Easements and Profits à Prendre The characteristics of easements Dominant and servient tenements Formal requirements for creation of easements Easements in gross Accommodation of dominant tenement The dominant and servient tenements must not be owned and occupied by the same person The easement must be capable of forming the subject matter of a grant Types of easements Rights of way Rights to light and air Rights of support Party walls Fencing easements Other examples of easements Protection from the weather? Creation of easements Express and implied grants Easements expressly created Easements created by implication — implied grants Easements created by implication — implied reservation Acquisition by long user Rights of support Creation of easements by court order Remedies Extinguishment of easements Abandonment Express release Alteration to the dominant tenement Unity of dominant and servient tenement Statutory extinguishment Easements and the Torrens system General exemption of unregistered easements to indefeasibility — Victoria, Western Australia and Tasmania Partial exemption to indefeasibility in favour of ‘omitted and misdescribed easements’ — other jurisdictions Enforceability of easements that do not come within the statutory exception Unregistered express easements Unregistered implied easements Prescriptive easements Profits à prendre Introduction — general Creation of profits à prendre Old system Torrens title Reform Chapter 11 Mortgages Introduction The secured loan transaction When is a mortgage granted? How is a secured loan agreement structured? How does the law achieve a balance between the mortgagor and the mortgagee? How does a mortgage support the purchase of property? The nature of mortgages Introduction The general law mortgage The Torrens system mortgage Priorities, mortgages and tacking General law Torrens land Tacking and priorities between Torrens system mortgagees Covenants in mortgages Remedies of the mortgagor Equitable doctrines protecting the mortgagor Clogs on the equity of redemption Penal provisions in mortgages Penal provisions in mortgages under the National Credit Code Remedies of the mortgagee Power of sale Statutory duty: notice to the mortgagor Equitable duty — conduct of sale Sale to an associate or a related party Auction sales Does the equitable duty amount to a negligence test? Timing of sale Statutory duties in the exercise of the power of sale Court-ordered sale Protection of purchaser from mortgagee in cases of breach of statutory and equitable duties Application of proceeds of sale Application by mortgagor for injunctive relief to restrain exercise of power of sale Exceptions to the requirement of payment into court Foreclosure General law Torrens Right to sue on personal covenants Power to appoint a receiver Remedies of the mortgagee — equitable mortgages The mortgagor and mortgagee inter se Mortgagor’s right to redeem Mortgagee’s right to possession of land Torrens General law Power to lease Torrens General law Rights of mortgagor and mortgagee against third parties General law Torrens Index