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Getting Title Notes

Law Notes > LAWS203 Property Law Notes

This is an extract of our Getting Title document, which we sell as part of our LAWS203 Property Law Notes collection written by the top tier of Univerity Of Otago students.

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Getting Title All legal interests in land can be registered, equitable interests (trust beneficiaries, covenants) cannot. S 62 Land Transfer Act Registered proprietor of (estate, interest in) land shall, fraud excepted, hold it subject to interests notified on register, and absolutely free from other interests.

Positive aspect: RP takes subject to registered interests. Negative aspect: RP is not bound by all other interests whatsoever. Exceptions: three specified exceptions ((a)-(b)-(c) unimportant?), fraud.

s 63 - no eviction

s 62

S 63 Land Transfer Act (1) No action for possession shall lie against the registered proprietor, except: (a) default mortgagors/ (b)lessees, (c)fraud, (d)misdescriptions (e) two titles registered (2) Otherwise, production of register is an absolute bar to any action of possession.

s 182 protection from 'notice' etc

S 183 - purchasers safe from liability, etc.

"Anti-notice sections" (legislature feared equity) S 182 LTA - Purchaser from registered proprietor not affected by notice No person contracting ... Or proposing to transfer ... Shall be affected by notice, direct or constructive, of any trust or u nregistered interest. Knowledge of any unregistered interest's existence shall not of itself be imputed as fraud.

S 183 - No liability on bona fide purchaser/mortgagee No purchaser/mortgagee bona fide for valuable consideration is subject to action for possession/damages because vendor/mortga gor was registered through fraud.

Frazer v Walker [1967] PC Frazer's wife gives fraudulent registered mortgage to Radomskis. Frazer defaults, Radomskis conduct mortgagee sale to give Walkers registered title. "It is in fact the registration and not its antecedents which vests and divests title." The registered proprietor gains indefeasible title immediately, even if otherwise unlawfully. Not deferred defeasibility; don't need to wait for bona fide purchaser. To claim a forged mortgage could not be validly registered would be destructive of the whole system. To claim Radomskis interest is null is to deprive them of registered interest; but s 63, can only do this in case of fraud. Fraud is limited to actual fraud by registered proprietor or agent: Assets Co v Mere Roihi S 63 section then does not apply, Radomskis have good title. Walker's interest was guarded by s 63 and 183 anyway; 'vendor' in 183 is the party with the power of sale, actually selling; not lawfully selling.

Section 81

: Gives registrar power to correct/cancel registration of issued in error, or 'fraudulently or wrongfully'.

Frazer v Walker: notes that this might give the registrar a power beyond that of the Courts Dollars & Sense Finance v Nathan: s 81 bound by ss 62, 63. Registrar has no power to impeach indefeasible title. Registrar: administrator, P couldn't have meant to give judicial powers beyond the judges.

Compensation S172(a): Claim for Crown compensation: If person sustains loss or damage due to an omission/mistake/misfeasance of the Registrar Marshall - loss includes trouble gone through in proving good title S 172(b) Claim: If deprived of land (or partially of land (e.g. Fraudulent mortgage) by Bringing of the land under LTA Registration of any other person as proprietor Error in certificate of title/entry into registry And the claimant is barred from recovering the land by s 63.

But Crown not liable if (a) breach by RP of trust (b) Crown granted land twice (c) seal of incorporation of company (d) instrument executed by person under legal disability unless noted on instrument (e) by the improper exercise of any power of sale or re-entry. (a) suggests that deprivation of unregistered interests may give clam of compensation. But claim will be reduced/discounted entirely if contributory negligence; e.g. If not taken adequate steps to protect interes t (e.g. Caveating). Marriott v Attorney-General : suggests that if trustees' beneficial interest somehow gets registered, no compensation for it. Read in context of act.

Volunteers Regal Castings and Light Body (SC - Tipping J) Lightbody (jeweller) heavily in personal debt to Regal Castings. Hides family home from creditor by gifting it to a family trust. Transfer itself not fraudulent. The fact of transfer by donation does not make registered title defeasible; registration creates title per s 62, key section. ss 63, 183 cannot be read inconsistently with s 62 then, no difference between donees/purchasers.

Property Page 38

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