In the common law legal system, property law is the branch of the law that seeks to support both the legal profession and the general public in issues of property law. land law deals with transactions involving both commercial and residential land, and it has become a very successful field of practice, particularly during times of economic boom. The laws, protocols, and practices relating to a legal relationship established by a settlor when a trustee is given control or responsibility over the assets for a specific purpose or for the benefit of a beneficiary are governed by trust law.
Protection of priority provided by the Land Title Act 1994
The Black v Garnock [2007] HCA 31case at the High Court of Australia considered the issue of caveats and if a loss of a purchaser’s priority resulted from purchaser’s failure to lodge a caveat. Dixon records that purchaser clients are recommended to lodge a caveat title as soon as possible after contract exchange as well as carry out a title search immediately or rather as soon as close to settlement time since the Black v Garnock ruling has significant practical consequences (2008). The Land Title Act 1994 created a procedure that would be used in the registry of the settlement notice. This act seeks to provide protection of a transferee’s interest when it is recorded on the automated tilting system. This transferee’s interest comes under a contract over a title and also to a potential mortgagee. It protects the person purchasing property against lodgment in form of interest that is not specified in the settlement notice that is provided between the time of the lodgment of the documentation in the registry and the time of settlement of the contract.
When the settlement notice is entered, it alerts all the interested parties who are searching for Automated Title System that there is an intended settlement that is imminent or it can alert them that a settlement has already occurred and the lodgment of important instrument is imminent. The primary importance of the settlement notices is where there is a contract in case someone wants to sell a registered interest in a freehold title. The notice will help in case the title is imminent and the seller does not have a duplicate certificate of title deed that was issued by the registry.
The settlement notice requires to be approved in Form 23 signed by the transferee. The electronic lodgers with a written authority from their clients or from their lawyers can apply in writing to the office of the registrar for the approval to sign these settlement documents on behalf of the clients they represent. The law requires that all the items one to six and eight to be completed. The transferee can choose to complete form seven or to mark it as not available at that time. In the instance of recording a settlement notice, the registrar must record all the details of settlement notices which should be separate from the freehold land register and also separate from the water allocation register. If the settlement notice already exists, the details should be entered into the ATS (Automated Titling System) as an administrative advice.
Every time one searches for a title, the statement notice notation will always appear from deposit with a “current” status for the first two months. This should always occur unless the settlement notice is withdrawn, removed or when it is cancelled. The statement will also appear for an additional of one month following lapsing with the same status of “current.” After three months, the notation will be removed from the title (Butt 2010).
A transferee may withdraw the settlement notice by requesting the registrar to do so, through submission of the Form 14 (Butt 2010). The Supreme Court may also make an order to remove the settlement notice which is found under s 144 of the Land Title Act 1994. The order should first be lodged in registry with Form 14. This will give a general request to show that the settlement has been removed. When this order is made by the Supreme Court, it is not a must to notify a transferee. There are other circumstances that can lead to cancellation of the settlement notice by the registrar following an order through Form 14 that will require him or her to do so (Butt 2010).
Section 83A of the land title act 1994
Section 83 of the Land Title Act 1994 addresses the issue of plan of survey for the purpose of easement. The easement in highly-density development areas is different from the other areas. The high-density development easement is covered under Part 6 of the Land Title Act 1994. The part of land to be registered must be done easement first on a plan of survey that is registered according to the law. When one wants to carry out an easement for the whole of a lot, the previous existing plan is used. No new plan is required because the easement already exists in the already registered plan.
Defining of boundaries of a proposed easement is allowed by section 83A of the Land Title Act 1994. The section does not cater for those pieces of land found in high density areas. The pieces of land found within areas marked as high-density development areas are covered under Part 6 in subdivision 4AA of the Land Title Act 1994. All the plans that depict an easement may show the easement as proposed whether or not the easement document that grants the easement is lodged with the plan (Glaskin, & Weiner, 2013). However, if an easement document is not lodged with the plan, the word ‘proposed’ must be shown on the plan.
All the plans for easement purpose have to be done according to the directions provided under section 4.8.2 and part 6, 8 and 10 as per the Registrar of the Title Directions for the Preparation of Plans (Glaskin, & Weiner, 2013). All these depictions of the easement must be together with the survey of lots on a plan of subdivision.
Property law principles
One of the government’s agenda is to modernize and streamline the property law by reviewing the seller disclosure in Queensland. This is viewed as the most important and the best approach to the sale and purchase of property. This will help in facilitating the conduct business in Queensland by doing away with the unnecessary regulations and the conveyance of the process. This method will help in improving the conduct of business in Queensland by reducing the transaction cost which is associated with the selling process of property. The new regulations focus in regulating the land sales and property development that impose a heavy burden on the person or company that is selling the property.
Happy Home Bank will benefit from the new law and ad the burden associated with the selling process such as advertising the property will be reduced by 20%. This new regulations took effect from March 2012. There is no formal seller disclosure laws in Queensland that govern the sale of property inside its area of jurisdiction. The bank will therefore comply with the common law. One of the requirements of the common law is that the seller must disclose the latent defects which are found in the seller’s title.
The bank will not be required to provide the warrant related to the fitness of the piece of land. The buyer will be required to inspect the piece of land as per the rules of Warfield and make their contract according to their own report, when they are satisfied with the property.
References
Butt, P. (2010). Land law (p. 125). Lawbook Company.
Dixon, W. M. (2008). Black v Garnock: implications for Queensland conveyancing practice. The Queensland Lawyer, 28(4), 171-173.
Glaskin, K., & Weiner, J. (2013). Customary Land Tenure and Registration in Australia: Anthropological Perspectives (p. 306). ANU Press.
