Access to the property, which is held by someone else, is made possible by an easement. The owner of the easement is limited to using the land only for the purposes specified in the easement file. For example, access or more appropriately the right of transit A legal arrangement known as an easement was created between the tenant and the property owner specifically to allow someone access to their property by passing through a designated area of their neighbor's property. As a result, the territory covered by the easement is not open to any other uses. However, the individuals using the easements do not have the right to possession of the property but only have a limited right of using that specific property in a particular way (Dixon 30). In case one uses the property in a way other than that written in the easement document the owner has the right of preventing them from using the property in that given manner.
In the case study, Ms. Williams controls an eco-retreat business property that is leased by Xanadu Pty Ltd. Since Ms. William has leased the land, it is prudent to understand the meaning of a tenancy. A lease is a legal obligatory contract, which provides particular rights to possession for a set of the term. Therefore, one should not sign a lease without understanding all the terms as well as conditions. However, the lease was viable for five years, and it was dated on 27 June 2011. The lease was officially registered at the Title Office Over the freehold title to the land. The lease had two options to renew each of five years. However, after enjoying the rights for one year Ms. William wishes to sell her leased property but she is facing problems with the land owner who believes that she has no right of selling the business and even if she sells the business the second option of the lease will not be enjoyed by the owner of the land Mr. Young is planning to take the eco-retreat business as his retirement plan.
Ms. William attempts to talk to Mr. Young were futile since he claimed that his business practice had nothing to do with her. Ms. William who is the plaintiff has a right that the property owner does not build upon or rather use the easement in such a way that will interfere with the reasonable use of the property by the plaintiff. Depending on the circumstances of the property owner starts using the land of the easement in a way that interferes with the plaintiffs use, he or she has the right to take legal action. The plaintiff has a right to compensation or rather be awarded an injunction that will impede the neighbor's activities. In case there is any building on the easement, and the benefactor of the easement has a right to destroy any building on the property so that they can continue accessing the easement for the intended purpose. Upon destruction of the buildings, the benefactor will not be liable to compensate the property owner for any damages (Dixon 130). However, the law is complex hence there exists a range of specific steps to be taken in an attempt to resolve the dispute with the neighbor before taking any action.
The lease that the plaintiff has entitles her to a quiet enjoyment of her rental property. However, she fears that the noise from Mr. Young’s work station can affect her property sell. Regarding the noise from the work of Mr. Young, after consulting the property owner who did not show any interest in helping the situation. It is therefore advisable for the plaintiff to take the matters to court to intervene so that they might enjoy the right of the lease. However, it is advisable to consider mediation to work something out. The plaintiff should write an email or rather go in person to communicate with the property owner. However, the case of the noise has lots of evidence since the complaints have been launched for long and they are even put online.
However, Ms. Williams can sell the business to Mrs. Underwood as a viable entity upon acting by section 50 of the property law of 1974. The section states that any covenant that is expressed or implied or rather agreement entered into by an individual with the person as one or more people other than the original parties shall be construed and be capable of being enforced similarly as if the agreement had been entered into with the other individual alone. The section further protects the sale of the property since it applies to covenants or agreements entered into before or after the commencement of the statute. The covenants that are implied by the statutes in case a person conveys or is expressed to convey to the person and one other person apart from the original parties but without prejudice to any other injunction of the court made before such commencement.
The covenant in respect to law refers to all the promises made in a deed. However, in this context, it is the term used more to refer to a contractual obligation affecting landowners, which could arise under a contract that is not affected by deed. The only burden of the covenant is the obligation of acting or not acting by the covenant. When a person has the encumbrance of the covenant, then they are the ones who are required to act regarding their land. The subsidy of the covenant is that one that flows from the other party who is bearing the liability of the contract (Dixon 110). Therefore, the benefit flows from that particular individual acting in a given way concerning the land. In this case, Ms. William benefits from the lease contract that they went in agreement with Xanadu Pty Ltd. It therefore follows that she can legitimately continue with her bid to sell the property to whomever person she likes without the restriction of the property owner. She should take legal action in case of the breach of contract by either of the parties involved in particular, the company that they are have an agreement with.
Question Two
Black v Garnock (2007)
There was the implementation against land act under the Torrens system. The copy of an injunction for the levy of property in relation to the land falling under the Real Property Act of 1900 (NSW). In the case, the plaintiffs managed to obtain a judgment against the sixth defendant who was the judgment mortgagor who was the official owner of the land. The landowner had agreed to sell land to the purchasers who were the first to the fourth plaintiffs. Before the settlement, an injunction for the charge of the property was documented in reverence of the land. However, because of the settlement, the Registrar-General did not register transfers. The purchasers, therefore, decided to seek an interlocutory writ that restrains the appellants as well as the Sherriff of NSW from implementing the injunction. The only interest of the purchasers of the land was that whether a person is suing the estate, which is not recorded in the Register and hence therefore not conserved by the Act, is entitled to an injunction, which will prevent the execution of a court order for the levy of property (Dixon 100).
If a similar factual situation happens, now then the Land Title Act of 1994 will protect the purchasers. There are statutory provisions in the Torren Statute that impact on the mortgagor’s equitable right to set aside an improper sale. The provision will protect the purchaser of any property from a seller against any irregularities or rather the impropriety upon exercising the power of sales, and more so it relieves the purchaser with the obligations of making the inquiries into the property of the sale. The protection of the purchaser's provision evidently protects a non-complicit purchaser who is also registered it is quite unclear whether the provision extends to protect the non-registered buyer. Like for the case of Black v Garnock, the Registrar-General failed to register the transfers. Recently in Victoria as well as the Australian Capital Territory, it is imminent that a purchaser would only be protected if their transfers were registered. However, in contrast, the structure of the protection of the customer's provision of the land title act of 1994 states the existence of the protection of unregistered purchasers. Therefore, in Queensland, there is the protection of both the registered and unregistered purchasers. There is the support of the opinion that the purchaser is protected under the statute before as well as after the registration of transfers. However, in most cases, the effect is in registration such that the purchaser is protected from the consequences of an improper sale (Dixon 105). Upon registration, the registrar general will always require the proof of default as well as compliance with the statutory before affecting any transfer of property.
The decision by the high court to hold that the injunction crushed the interests of the purchaser despite the fact that the buyers had paid the balance of the fee to the seller, they were not capable of registering on the title of the property. The purchasers had obtained a final search on the daybreak of the payment but did not acquire an up to date final search after the notice had been served to them from the third party and before settlement that happened later the same day. The law now strictly recommends the purchasers, clients, to lodge a caution on the title soon after the exchange of agreements and to perform a title search closer to the time of payment as possible. The possibility of the same circumstance arising similar to the case of Black and Garnock are not likely; the case shows the significance of property defending the interest of all the purchases sooner than later after an exchange of contract has taken place.
Question Three: Section 83A
Section 83A of the land title Act of 1994 states has two subdivisions. Section (1) states that a plan that designates an easement that is proposed, rather than a high-density development easement, have a chance of being registered only if the designation entails the words ‘ proposed easement.’ The second section is also subdivided into two subsections. Subsection (a) states that the appointment does not in any chance create an easement. On the other hand, the second subsection (b) commands that the appointment cannot be considered as evidence of an intention to create an easement. Section 83A was enacted into law on 7 December 1993. Although they were various amends done hence, the Native land Act became completely different from the Bill, which was attached to the Queensland legislation. The main reason to enact the laws was to give the natives of Australia the right to use the stator land by the easement document. However, the amends that were done to sections 83 in 2013 were to clarify the requirements for the creation of an easement over a registered lease.
Cases
In the largest decision concerning the case of Mabo v Queensland the high court recognized the existence of the indigenous title to land. The court went on to hold that it there was a possibility of protecting the form of the native title. In this case, his honor Judge Brennan defined the native title as the right as well as the interests in possession under the traditional laws and customs, which are observed by the Aboriginals together with all the Torres Strait Islanders. The outcome of the case changed the foundation of the land laws in Australia when it overturned the doctrine that stated that the land belonged to no one. The recognition of the ownership of land by the natives of Australia led to insertion of the legitimate doctrine of the native title into the Australian Statute.
Question Four
The land title act was amended in 2006 with the intention of addressing the increasing incidences of identity swindle, which was a relation to loans. The Torrens system has an idea of indefeasibility, which means that the interest of an individual who is registered is under protection by Act. In case a titleholder or rather, the mortgagee suffers loss because of deception or defect in the register, the State will recompense. The restitution competent the indefeasibility in ways, which include the unavailability of indefeasibility unless the mortgagee has taken reasonable stages in the identification of the person who signed the mortgage and whether a mortgagee exercises the control of sale under a mortgage that was implemented deceitfully. In this case, the bank will only retain the aggregate of the principal amount out of the sales proceeds. In addition, they may take with them an enforcement cost that is reasonable together with the interest, which is limited to the lesser of the official cash rate. Secondly, they gain a surplus of 2%, which is the rate of the mortgage.
It, therefore, seems that the mortgagees will not be eligible to break costs or other fees such as delayed formation charges. The interest rate is kept very low in protection of the authentic interests of various mortgagees. However, the restraint will only apply in case a loan effectively sells under a mortgage, which was implemented deceitfully, and will not influence “ordinary” mortgagee sales. Therefore, before the bank exercises its power of sales it has to comply with the statute. The property law in relation to the exercise of the power of sale it requires that the power should not be used unless the notice that requires payment has to be served as well as the default has been made in payment of the mortgage capital or only part of it for a maximum of three months after the service (Johnson 20). Upon elapsing of the three months, the debtor will be in default, but the bank has to wait for an additional three month before exercising the power of sale by the provision.
Question Five: Joint Tenant
When a property is a purchase with more than one person, there are principles of co-ownership that apply. Under the Queensland, laws there exists two forms of co-ownerships. The two co-ownership forms are joint tenants and tenants in common. For our case today, we are interested with the joint tenancy holding. Under this tenancy holding the owners have, the right to use, possess as well as enjoy the property, but neither of the party has an exclusive or greater right to possess the property than the other (Rigsby 10). The primary trait of joint tenancy is the right of survivorship. The right of survivorship provides one of the owners the right to full ownership of the property upon the demise of the other owner(s). There is no possibility of bequeathing their interest in the property in a will. The joint tenancy has been the most common form of ownership for married couples. For those tenants in common is a different form of co-ownership basing on a distinct share of property which is not divided. Unlike the joint tenancy in which the owners have equal shares, the owners in this kind of ownership may have unequal shares of the property but are entitled to the maximum use of the property. The shares held by the tenants in common reflect the consideration, which is provided by the party. Therefore, in case the members pay equally, they most definitely are tenants in common with 50/50 shares. It means that interest in the property as a tenant in common enables the transfer of the interest held in the property upon the demise of wither under terms of the deceased' will or rather under the laws of succession (Rigsby 10). In addition, the owners can deal with their interest in the property by other means such as granting rights of the refusal or managing the interest in the property through a separate agreement.
Mr. and Mrs. Abbot are joint tenants of real property that is owned by the Warfield City Council for 20 years. In addition to the property, they jointly built a deck, which they have owned jointly for five years. However, because Mrs. Abbot wants her husband to attain financial security, she wants to transfer her ownership to Mr. Abbot. After the transfer, her husband will be considered as the sole tenants of the property. However, as joint tenants, they had granted Bosun Energy an authority to explore geothermal energy in their land (Babcock 40). However, according to the property law of the Queensland, some transfer does not constitute a change of ownership. The transfers of any joint tenancy interest are representing an interest in a trust and after the transfers, or rather the creation the transferor is one of the joint tenants. It, therefore, follows that such a transferor can also be considered as a transferee and is hence considered as the original transferor for the sole purpose of determining the property to be reappraised in case of subsequent transfers. Therefore, if the spouse of the original transferor acquires an interest in a joint tenancy property either during the period, which the original transferor holds an interest or either using transfer from the original transferor. The spouse will be considered as the original transferor. More so, any joint tenant may become an original transferor by transferring their joint tenancy interest to their other joint tenant through his or her trust. It can only happen if the trust instrument names the other joint tenant as the recent or rather the present beneficiary (Esmaeili 281).
In this case, the transfer of ownership from Mrs. Abbot to Mr. Abbot cannot be considered as a complete transfer of the property. It is because the ownership is transferred from wife to husband who is the transferors and is included among the transferees hence considered as the original transferors. Besides Mrs. Abbot being the original transferor, her husband is by law also taken as an original transferor. Therefore the transfer of ownership where one of immovable property which is legally competent in that behalf transfers their shares of such assets or other conjoined interest therein, the transferee will acquire such share or interest so far as is necessary to give an effect to the transfer. The transferor has the right to joint possession or rather common or part of the enjoyment of the property while enforcing a partition of the same, which is subjected to the condition as well as liabilities affecting the share or rather interest, transferred at the date of transfer. In section 31 of the Property Law Act 1974. It is requested that all rights, as well as interests in land, may be disposed of. The reasons include a contingent, future, or executor interest in any particular area or rather a possibility coupled with concern in any land whether or not the object of the gift or restraint of such interest or rather the potential be ascertained. The co-owner has a right of entry into land whether immediate or in future and it can be either vested or contingent. It, therefore, follows that all rights of entry, which affects a legal estate that is exercisable on conditions that are broken after the commencement of this statute. It is made exercisable by any individual while the other person derives title under that individual but concerning an estate in fee simple that is only within the time authorized by the law relating to perpetuities (Kehoe 200). The section deals with the rights as well as liabilities of a transferee from joint tenants as to the enjoyment of the property to be transferred. The person who takes the transfer from another will fully step into the shoes of the transferor and therefore is clothed with all the rights while also becoming the subject to all the liabilities of the transferor. Therefore, the husband will become the full owner of the property as much as her wife was before the transfer. It is therefore smooth to transfer ownership from the husband to the wife since at the end of the day the husband will be considered as the original transferor.
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