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REAL PROPERTY LAW – EXAM NOTES, Schemes and Mind Maps of Property Law

University of HullProperty Law

Roger v Hosegood – The covenant must either affect the land as regards [its] mode of occupation or it must be such as per se, and not merely from.

Typology: Schemes and Mind Maps

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LLAW3221 Real Property Law – Semester 2 2019
1
REAL PROPERTY LAW – EXAM NOTES
TOPICS
1. Torrens System – Indefeasibility, Exceptions to Indefeasibility, and Priority
2. Boundaries, Ownership, Fixtures, and Encroachment
3. Leases
4. Easements
5. Covenants
6. Mortgages
7. Native title
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REAL PROPERTY LAW – EXAM NOTES

TOPICS

  1. Torrens System – Indefeasibility, Exceptions to Indefeasibility, and Priority
  2. Boundaries, Ownership, Fixtures, and Encroachment
  3. Leases
  4. Easements
  5. Covenants
  6. Mortgages
  7. Native title

5. RESTRICTIVE COVENANTS

  • Restrictive covenants are created by landowners through private contracts, to limit and control the way other land owners may use and develop their land
  • Restrictive covenants may be imposed by state or public authorities and are dealt with by planning legislation e.g. restricting changes on heritage property
  • A positive covenant requires a certain kind of conduct be performed Beswick v Beswick – at law, only parties to a contract are bound by terms of contract (privity of contract) Tulk v Moxhay – but in equity, a covenant may be enforced against successors in title (third party to contract) if they purchase the land with notice of the covenant
  • Covenantor – bears burden
  • Covenantee – has benefit 1. Common Law
  • s34(1) LPA – A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant, or agreement over or respecting land or other property, although he is not named as a party to the conveyance of other instrument Austerberry – covenant that imposes a burden does not run with land, unless covenant does amount to grant of easement, rent-charge or some estate or interest in land
  • The benefit of a covenant may pass to an assignee of the covenant if a number of legal requirements are met
  1. Covenant must touch and concern land Roger v Hosegood – The covenant must either affect the land as regards [its] mode of occupation or it must be such as per se, and not merely from collateral circumstances, affects the value of the land
  • A covenant that facilitates the enjoyment of land by the covenantee or enhances the value of land does benefit the land and hence will touch and concern the land
  1. The estate of the assignee of the covenantee must be legal Webb v Russell – The covenantee benefits from the covenant only if they have the legal estate (a beneficiary under a trust is excluded as well as other equitable interests holders)
  2. Assignee and covenantee must have same legal estate Westhoughton UDC v Wigan Coal – For a covenant to run with land the person seeking to enforce the covenant must have the same estate in the land as the covenantee (abolished all jurisdictions but SA)
  3. Benefit must be intended to run Smith and Snipes v River Douglas – must be shown it was intention of parties that the benefit should run with the land (abolished all jurisdictions but SA) 2. Equity
  • Unlike common law, the burden of a covenant can be enforced in equity Tulk v Moxhay – but in equity, a covenant may be enforced against successors in title (third party to contract) if they purchase the land with notice of the covenant Three principles elements of Tulk v Moxhay doctrine: o The covenant must be restrictive rather than positive in nature

3. Torrens System - Restrictive covenants were not initially welcomed into Torrens system, and as such adjusting them into Torrens system had difficulties Notification of restrictive covenant on register - No provision exists in the RPA in regards to registering a restrictive covenant - The practice of notifying a restrictive covenant on the register in the form of a registrable encumbrance (rent charge) has existed since the early 20th century - s128B RPA – a rent charge on land is registrable Burke v Yurilla – there is nothing in the operation of the RPA which renders covenants contained in the encumbrance, unenforceable against the plaintiff Black v Rix – held that restrictive covenants establishing a building scheme and contained a registrable encumbrance were enforceable under Torrens - Many amendments to RPA have occurred since these cases, but neither has legislated to prohibit or approve the practice - Provided restrictive covenants are enforceable when registered as encumbrance and related to a building scheme Caveat - Conflicting authorities exist as to whether a restrictive covenant is caveatable Barry v Heider – unregistered interests are equitable Woolberry v Gilbert – restrictive covenant is caveatable Miller v Minister for Mines – restrictive covenant is not caveatable Scheme of development - Applies to Torrens, discussed above in equity Is there a Right to View? - Views and privacy are not specifically protected by CL Victoria Park v Taylor – no property right in a spectacle - However, planning controls and legislation may provide remedies Hutchens v City of Holdfast Bay

  • No one has monopoly upon views
  • At the same time, that does no entitle the proponent of a new building to obstruct the views currently enjoyed by others
  • Especially where it is possible to construct a new building at a level which will permit those behind to continue to enjoy the views at present available to them