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Case Study: Andrew and Brett

a) Does Andrew have to allow Brett access to his land to remove sandstone?

In the given case scenario, Alexis allowed Brett to remove sandstones from a small portion of her property in return of four thousand dollars of Maitland Bay. This agreement was recorded in writing but was never formalized in a deed. Later on when Alexis sold the land to Andrew which makes him the owner. Brett cannot claim access to Andrew’s land in order to remove sandstones, as it was not with him he entered into a contract.

He is also not eligible to claim that because his agreement with Alexis was recorded in writing and not conveyed in a deed. According to Australian legal system, under Contract law, not all contracts need to comply with sorts of formalities. When two parties enter into a contract they do not have to record the evidence in writing especially when it involves land dealings. It is valid in the eyes of court when it is written, implied by circumstances or created orally and a few more.

This is further completed by all parties signing the document in order to showcase acceptance to the terms created for the bargain. Alexis and Brett surely recorded their bargain in writing but it is still not valid because under section 1 of Law of Property it states that there are 4 formal requirements to make a bargain a valid deed. These are - In writing, clear on its face that it is intended to be a deed, validly executed as a deed, and Delivered.

In the given case scenario, the first two elements are satisfied, but the last two elements have been left unsatisfied, which restricts the written document to be valid. The action of deed can only be initiated when it is lawfully executed. Therefore, Brett should not have started his digging of Sandstones, without conveying the agreement into a valid deed. Therefore, Andrew does not need to allow Brett to access sandstones from the land of Maitland Bay.

b) Is Andrew subject to Rita’s lease?

In the given scenario, Alexis leased her land of Maitland Bay to Rita for two years with the possibility of renewing it for further one year. This lease was an oral agreement. Later on when Alexis sold the land of Maitland Bay to Andrew without informing him that the land was still leased to Rita. The question is if Andrew is a subject to Rita’s lease or not.

In the Australian Legal system, oral leases are not considered to be valid under the section 54A of the Conveyancing Act 1919. It states that contracts which are related to interest of land, like leases or agreements to lease has to be documented in writing. If this is not the situation then ‘parts performance’ acts are required for its enforcement. This law is derived from the Statute of frauds 1677.

Parts performance of the lease was enacted in between Alexis and Rita, now the owner of the land has changed. Rita cannot claim any compensation or plead the court to govern the terms of the lease as it was not recorded in a document. Therefore, Andrew is not a subject to Rita’s lease, as it was an oral agreement and no documented exists.

c) Is Andrew subject to Robin’s agreement?

The case scenario is that Alexis borrowed money from Robin to purchase a unit at Kilcare. Robin agreed to lend money on the grounds if Alexis pays him interest from Maitland Bay as securities against his debt. Another settlement was that if Alexa dies she would leave the land to Robin. The agreement was not put into writing but Alexis gave her Certificate of Title to Robin. Later on Alexis was unable to pay debt and sold the land to Andrew.

In general law, the title system is based upon a chain of needs in order to prove ownership. This requires a showcase of documents from the time it can be traced back to its existence. Alexis has not showed any proper written documents in her previous contracts as well. It is required that court can hold of the present owner of the land but Alexis has disappeared. This indicates that Andrew is a not subject to Robin’s agreement as the certificate of title given to him is now invalid since the owner has disappeared and unable to confirm your authorisation.

d) If we change the facts and assume that the land is held in the Torrens system, how does your answer to (a), (b) and (c) change? 

Torrens Title system unlike the general system, issue certificate titles by Registrar of Titles. It is also known as Torrens title System. It is a process to register ownership to relevant real estate lands. The owner to whom a certain part of property is being transferred to has to file a petition with the registrar office.

In the given case scenario, Alexis allowed Brett to remove sandstones from a small portion of her property in return of four thousand dollars of Maitland Bay but deed was never formalized. Later on when Alexis sold the land to Andrew which makes him the owner. Brett cannot claim access to Andrew’s land in order to remove sandstones, as he had no legitimate document with him to prove his ownership.

Under Australian Legal system, Torrens system, Certificate of Title can only be issued by Registrar of Titles, to the relevant person. It is mostly noticed in the cases of mortgages which is the given scenario in this case.

Therefore, Andrew is not subject to Robin’s agreement as the first two elements stated in deed of conveyance was only satisfied, and the latter two was not delivered. Until and unless a deed is delivered it shall enter into execution process. Certificate of title given to Robin is also not valid because it was not issued to him by a Registrar of Titles. Andrew cannot be held as a subject to Robin’s Agreement on Mortgage.

In the case with Rita’s lease, it will be considered invalid in Torren system as well, because this system requires authorised documents to initiate terms of any kind of contract.

References

Primary sources

Statutes

Civil Law (Sale of Residential Property) Act 2003 

Civil Law (Property) Act 2006\

Real Property Act 1900 

Conveyancing Act 1919

Case laws 

[1897] AC 367

Secondary sources

Websites

"Australian Contract Law | Julie Clarke", Australiancontractlaw.Com (Webpage, 2020)
<https://www.australiancontractlaw.com/law/formation.html>.

"Certificates Of Title", Property And Land Titles 
(Webpage, 2020) 
<https://www.propertyandlandtitles.vic.gov.au/land-titles/certificates-of-title>.

"Certificates Of Title", Property And Land Titles (Webpage, 
2020) 
<https://www.propertyandlandtitles.vic.gov.au/land-titles/certificates-of-title>

"Contract Law - About - Clayton Utz", Claytonutz.Com (Webpage, 2020)
<https://www.claytonutz.com/about/international-services/doing-business-inaustralia/contractlaw#:~:text=Australian%20contract%20law%20is%20based,they%20choose%20within%20le
gislated%20parameters.>.

 "Leases", Lawhandbook.Sa.Gov.Au  (Webpage, 2020) 
<https://lawhandbook.sa.gov.au/ch23s01s01s02.php>.

 "Leases: What Are The Types Of Leases Out There?", Findlaw.Com.Au (Webpage, 2020)
<https://www.findlaw.com.au/articles/4602/leases-what-are-the-types-of-leases-outthere.aspx>.

"Oral Leases And Agreements To Lease: The ADT Sidelines The Statute Of Frauds - Real Estate And Construction - Australia", Mondaq.Com 
(Webpage, 2020) 
<https://www.mondaq.com/australia/real-estate/56146/oral-leases-and-agreements-to-leasethe-adt-sidelines-the-statute-of-frauds>.

"Practical Guidance On Unsigned Deeds And Agreements To Be Formalised", Construction
Blog (Webpage, 2020) <http://constructionblog.practicallaw.com/practical-guidance-onunsigned-deeds-and-agreements-to-be-formalised/>.

Page 5 of 6 "Torrens Titles", Property And Land Titles (Webpage, 2020) 
<https://www.propertyandlandtitles.vic.gov.au/land-titles/torrens-titles>.

Propertyandlandtitles.Vic.Gov.Au (Webpage, 2020) 
<https://www.propertyandlandtitles.vic.gov.au/__data/assets/pdf_file/0024/53817/GeneralLaw-Land.pdf>.

"Corin V Patton", Lawteacher.Net (Webpage, 2020)
<https://www.lawteacher.net/cases/corin
v-patton.php>

"Yanner V Eaton [1999] HCA 53; 201 CLR 351", Australian Institute Of Aboriginal And
Torres Strait Islander Studies (Webpage, 2020) <https://aiatsis.gov.au/ntpd -resource/28883>

"P&A Swift Investments V Combined English Stores Group", Lawteacher.Net (Webpage, 2020)  <https://www.lawteacher.net/cases/pa-swift-v-combined-english-
stores.php#:~:text=P%26A%20Swift%20Investments%20v%20Combined%20English%20St ores%20Group%20%5B1989%5D%20AC%20632&text=The%20landlord%20designated%2 0specific%20business,was%20owned%20by%20the%20defendant.&text=The%20defendant
%20refused%20to%20pay,to%20recover%20the%20sum%20owed.> 

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