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Contemporary Issue in Property Law - Question 1

To understand the past, intermediate and the future acts, one has to understand what is Native Title Act and how did it come into prevalence. This term 'native title' was first heard in Australia in 1982 when some people of the Eastern Torres Strait lodged a claim in the High Court of Australia. The claim was about having recognition of their clan an exclusive possession of Mer (Murray Island) according to their customs and norms which has been a part before British rule in Australia. The case Mabo v Queensland [(1992)175 CLR] was acknowledged the native rights of these people and their interest in the Murray Island. Eddie Koiki Mabo was the first plaintiff in this case who fought for his people's right till 1992 (Cawthorn, 2020). This judgement upturned the concept of terra nullius which means land belonging to no one and stated that these indigenous people have stayed in Australia for a very long time and have their customs and norms and now is a part of Australian legal system (Cawthorn, 2020).

In furtherance to this, The Native Title Act 1993 was passed which gave the autonomy to these people to claim their native title rights and waters in Australia. It is an act that balances the rights of indigenous and non-indigenous people (Cawthorn, 2020). Not only state laws, but internationally these people have gained recognition. Article 1 and 27 of International Convention of Civil and Political Rights (ICCPR) have directed the state to protect the interests of the indigenous people and any other course shall be a violation of the articles in the convention (Human Rights Government, 2020). Article 2 and 26 of ICCPR states that these rights should be protected just as the same is done for non-indigenous people and if any priority given to non-indigenous ones before the indigenous ones shall be a violation of the articles (Human Rights Government, 2020).

Discussing the past, intermediate and the future acts, so past acts means those acts that affected the native title rights from 31 October 1975 to 31 December 1993 (Fletcher, 2010). These acts have the rights to claim to compensate for the invalid treatment under section 61 of the Native Title Act (NTA). Intermediate acts are the ones that which affected the native title rights between 1 January 1994 to 23 December 1996 (Fletcher, 2010). These were the grants and public works that affected the rights of native people like when pastoral leases and other forms of leases were regarded as extinguished rights of native people (Fletcher, 2010). This was rectified by the High Court of Australia in Wik v Queensland [(1996) HCA 40]. Future acts are those that affected the grants of leases or the public work of the natives during 1 January 1994 (Fletcher, 2010).

Part 2 Division 3 sub-division G of the NTA, 1993 talks about future acts and primary production. Section 24GB states that a future act shall apply if a non-exclusive agricultural lease (section 247B) or non-exclusive pastoral lease (248B) was granted before 28 December 1996. A future act is what gives the liberty to the natives to carry on their primary production activity like cultivating land, breeding animals etc as mentioned in 24GA while the lease is in force.

Section 14 of the same act provides for the validation of past acts. Section 19 says that the past acts should be validated as per the old terms of the contract. The past acts which are validated include the grant of licence or permit or creation of interest in land etc as per section 226. It shall extinguish only those terms and grants given in Category A past acts (Section 15(1) (a) and (b) and 229) which is the grant of freehold or commercial, agricultural, pastoral lease given under section 246-249 or construction of public work given under section 253. Category C and D shall not extinguish the native title rights but native title right shall be subject to the non- extinguishment principle as per section 238 (Australian Government Solicitor, 2020). If compensation is paid for the past acts, then a claim can be made under section 61while the native parties can claim to federal court for the compensation as per Division 5 of the act. 

Similarly, for the intermediate period acts compensation can be claimed. Section 232A defines the intermediate acts and 232B, C and E give the same categories as A, B, C, D (Fletcher, 2010). However, there is some difference amongst all. Like in category A says that action must be valid except for the native tile and there must be a previous grant of freehold or leasehold other than mining lease (Fletcher, 2010). This was done to ensure that grants made on false assumptions that lease has expired, that has been considered before the grant was to be made (Fletcher, 2010). Hence if there is no previous impact of leases that could have extinguished the native title, then section 232A will not apply (Fletcher, 2010). Also, category A does not include non-exclusive pastoral leases like the category A past acts do (Fletcher, 2010).

Contemporary Issue in Property Law - Question 2

To confirm the ownership of a property, legal practitioners check the documents of the property before transferring it. this is called the Deed system which is still used in many countries like India. The only shortcoming of that is even though it is seen that person is the owner of the land, still, the purchaser cannot rely on the registry and has to confirm it himself that the property belongs to the owner or not. In Colombia, they use the Torrens system named after Robert Torrens. This is much more convenient as the purchaser do not have to search the history of the property but can rely on the information given under the Land Registry Title. Under this system, the security of the title is based on indefeasibility, registration, the abolition of notice and assurance.

A book called The Torrens System of Land Title Registration (1917) states the procedure and consequences of registration.

  • In Victoria, the land which has to be converted into Torrens title includes the leases which have not been expired for at least 10 years, estates held by the mortgagor provided the mortgagee consents too. The conversion applications must be made in a prescribed form defining about the land and the title of documents and any encumbrances whatsoever. Before the conversion, the Registrar is to provide in a local newspaper full information about the conversion and the person converting it has full knowledge of it. any person objecting the conversion, can under section 12 of the Victorian legislation, lodge a complaint about the conversion. The person has a period of 30 days when he becomes aware of the conversion.

Once the conversion is done, the registered owner can deal in the estate. In all jurisdictions, the transfers or mortgage or lease should be registered. This information shall be a part of a register called the Land Registry Title. After that, the registered interest shall have the effect of any common law interest. However, the Torrens system does not cover all interest of the estates because it is not a compulsory system and some information can remain unregistered.

  • The consequence of registration is that it gives an 'indefeasible title' to the owner. This means that after registration, the interest holder's title cannot be questioned or defeated. However, it does not mean that the interest in indestructible. Reason being, firstly the security that this system gives sis not absolute. The estate is always subject to some encumbrances which have been or in future be registered. Secondly, the owner is capable of transferring such rights on the estate. After the subsequent transfer is done, the prior transfer stands invalid. Thirdly, all indefeasibility title shall be subject to the statutory and non-statutory exception of the state. Therefore, the title od estate under the Torrens system is a relative concept means it could be defeated as and when required.
  • Section 42(2) states that where the interest is given under subclauses (a) to (f), it is termed as 'paramount interest' and shall be subject to it. it is an exception to the indefeasibility title and is unenforceable against the interest holders. This means one is bound by the prior non registered equitable provisions. For eg, a lease being equitable cannot be turned out even after registration. The exception to the indefeasibility is that under section 42(1) the registered proprietor shall be indefeasible and free from all encumbrances except when a proprietor is claiming the same land under the prior folio, so the prior one shall prevail and section 41(1) shall not be applied. This was held in National Trustees Co v Hasett [(1907) VLR 404], in which it says where there are two folios on the same piece of land then the prior one shall prevail. As per section 42(1) too if a mistake has been made in a piece of land like the wrong mention has been done, then the proprietor is not entitled to keep it.

Contemporary Issue in Property Law - Question 3

In Santander UK PLC v Ashley Shaun Fletcher and Paula Denise Fletcher [ (2018) EWHC 2778], it was held that where a mortgage is done due to undue influence, then that mortgage shall not be valid. Along with that if the property is jointly held, then the lender shall have authority over the property. In Perpetual Trustees Victoria Ltd v Xiao [(2015) VSC 21] it was held that a loan agreement where the lender had fraudulently acted, then the lender cannot be given the registered mortgage even though he didn't know about the fraud.

Based on common law, it could be seen that Mr Brwon never had possession of the property. Mr Black is the owner of the property as he handed over temporary documents to him. He had malicious intentions due to which he went to the bank to raise a mortgage out of the documents. Now that Mr Black gave the property to Mr Green, so he is the rightful owner of it and the bank is the one who shall be at a disadvantaged position.

References for Contemporary Issue in Property Law

Australian Government Solicitor, 2020. Native title act 1993. Rerrievd from https://www.ags.gov.au/publications/legal-briefing/br11.htm

Cawthorn, M. 2020. Native title, rights and interests. Retrieved from https://www.nativetitle.org.au/learn/native-title-and-pbcs/native-title-rights-and-interests

Doren, D.H.V. 1917. The Torrens System of Land Title Registration. Columbia Law Review, 17(4), 354-357.

 Fletcher, G. 2010. Compensation. Retrievd from http://www.nntt.gov.au/Information%20Publications/Compensation%20paper%20Graham%20Fletcher.pdf

Human Rights Government, 2020. Native Title. Retrieved from https://humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/1_native_title.pdf

Mabo v Queensland [(1992) 175 CLR].

National Trustees Co v Hasett [(1907) VLR 404],

Perpetual Trustees Victoria Ltd v Xiao[(2015) VSC 21]

Santander UK PLC v Ashley Shaun Fletcher and Paula Denise Fletcher [ (2018) EWHC 2778]

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