Land Law Practice Paper: Indefeasibility, Covenants, and Mortgages

This Land Law practice paper delves into critical aspects of property law, beginning with the Torrens system and the principle of indefeasibility. It explores the implications of registered and unregistered instruments, and examines the five main divisions of indefeasibility of title through case references. The paper further analyzes mortgage disputes, outlining the requisites for mortgagee actions and the principles governing property sales. It also addresses land covenants, differentiating between restrictive and positive covenants, and the role of the Property Law Act 2007. The assignment includes detailed discussions on rights of way, implied covenants of quiet enjoyment, unreasonable consent, assignment deeds, and fraudulent mortgages, supported by relevant case law and statutory provisions. It also covers caveats, equitable priorities, the Maori Land Act, body corporate responsibilities, and unit titles, providing a comprehensive overview of various land law concepts.

Running head: Land law
Practice Paper of Land Law

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Contents
Ans 1..........................................................................................................................................2
Ans 2..........................................................................................................................................2
(a)............................................................................................................................................2
(b)...........................................................................................................................................3
(c)............................................................................................................................................3
Ans 3..........................................................................................................................................4
(a)............................................................................................................................................4
(b)...........................................................................................................................................4
(c)............................................................................................................................................4
(d)...........................................................................................................................................4
Ans 4..........................................................................................................................................5
(a)............................................................................................................................................5
(b)...........................................................................................................................................5
(c)............................................................................................................................................5
(d)...........................................................................................................................................5
(e)............................................................................................................................................6
References..................................................................................................................................7

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Ans 1.
It is truly asserted that the “register” is a most significant compliance of torrent system of
land. The Torrent System protects an interest and title of a bona fide owner by a principle of
indefeasibility (Law Explorer, 2017).
Position of unregistered instruments-“The performance of registration is the effective piece to
convey title” (Hepburn, 2013). According to this view, owner of registered instrument
authorized to disregard any unregistered interest claimed by any third person.
Five main divisions of indefeasibility of title
The principle of indefeasibility is that every owner shall have absolute ownership to land on
registration (Williams, 2011 and Bant, E. & Harding M, 2010).
o Section 62, Paramountcy of owner’s estate – a section deals with supremacy of owner
over all his estates.
o Section 63, Protection from ejectment- this section highlights the principle of section
62 where no act shall be brought against an owner for recovery of land.
o Section 64, Prescription section – this section guards the bona fide owner against
cessation of his absolute ownership by adverse possession and prescriptive title.
o Section 182, Protection from notice- this section state that bona fide owner is not
indebted to inquire into notice affected by unregistered interest.
o Section 183, Protection from defects in vendor's or mortgagor's title- a purchaser is
protected against recovery of land, or damages in the case of fraud under any void or
voidable instrument.
Case reference:
o Gibbs v Messer (1891) A.C. 248
o Boyd v Mayor of Wellington [1924] NZLR 1174 (Registration of a void instrument)
o Frazer v Walker [1967] 1 A.C. 569 (Registration of a void instrument due to forgery )
Ans 2.
(a) In context of case, the following requisites resolve the mortgagor dispute-
In case of default by the mortgagor, the mortgagee must serve prescribed form notice to
mortgagor containing complaints of default. Such default must furnish within 20 working

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days by mortgagor and in case of default in payment the mortgagee shall exercise lawful right
to sell a mortgaged property. After compliance of notice requisites, the section176 of
Property Law Act comes into role where Mortgagee may exercise a power of sale, either by
mortgagee or through the court (Martin, 2007).
Certain principles should be exercise by the mortgagee at the time of sale
 Time to assess whether the price is the reasonable price or not.
 Obligation is not to obtain the best price but to exercise reasonable care to achieve the
best price.
 If mortgagee sells to an interested party, it carries burden of proof on him to prove
that he has taken all sound process to obtain best price.
(b) Land covenants specified under Sections 301 to 307 of the Property Law Act 2007 as
negative agreement where parties mutually agreed to restrict a use of land in any particular
manner or purpose.
Tulk v Moxhay [1848] EWHC J34 is a landmark case in which court held that a restrictive
covenant follow with the land where a future owner will be subject to comply such prior
restriction of covenant (MacKenzie, 2016). The covenant must fulfill certain obligations:
 The covenant must be restrictive in nature.
 The original parties intended to put liabilities over legal heirs also.
 The land covenant is only applicable to adjoining land (Gibbons, 2017).
According to facts of the case, the land is not attached with neighbour land as it far away
from 1000 metres that establish that Dior is not bound by such obligations as it not made with
actual physical adjoining of both land together.
(c) As per facts of the case, a right of way is a specific type of easement where an owner
permits a right to walk through an area of their neighbour’s land to access property. The right
of way places obligation on owner that he cannot inhibit with rights of accessee (Hinde,
Campwell and Twist, 2007).
In this case a property is subject to an easement, the Dior must allow their neighbour section
X to access into his land as he is bound to provide a right of way subject to conditions put on
section X to limit its excess traffic because a vehicular right of way does not give
authorization under section 297, Property Law Act, 2007.

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Ans 3
(a) As per facts of the case, lessee breached the concrete principle of implied covenants of
“quiet enjoyment”. The common rule is that lessee is entitled to enjoy quiet possession where
using of premises without interruption of lessor. Simultaneously such right should not violate
a concrete principle of quiet enjoyment. Though lessee has a right to quit enjoyment but he
exceeds a limitation of such right in this case. Such quiet enjoyment is subject to implied
covenants section s 106(a) of prior Property Law Act, 1952 and Clause 6(2) of Schedule 3 of
Property Law Act, 2007. An illustrative implied conditions includes that Lessee must not
commit nuisance in a lease premises. Thus it would not be appropriate for the lessor to be
responsible for all (Hovenkamp.,Kurtz and Gallanis (2016).
(b) Under following conditions, unreasonable consent is suspended in section 227 of Property
law act, 2007
 The lessor requires the payment of dues or additional charges, rent, premium or other
valued price.
 When lessee offered use of lease premises for illegal or immoral purposes.
In case of lessor refuses to give consent, he is bound to serve a written notice of refusal to
lessee.
(c) According to facts of a case, an assignment deed failed due to default of payment by Mr
X and he is liable to satisfy outstanding charges under section 241 of Property Law Act 2007.
Further, assignee shall also be liable to indemnify all claims and expenses in case of non-
payment of rent and other charges under section 242(1)(c) of Act,2007.
(d) This case deals with a matter of fraudulent mortgage. To support a response of a case, a
mortgage title of Mr X must get remove. A reference made of case Young v Hoger [2002]
QSC 013 where the conduct of a solicitor commits fraudulent mortgage transaction. In this
case, the Court held that the solicitor’s conduct in registering the forged mortgage comes
under an exception to indefeasibility under section 184(3) (b) of the Land Title Act 1994 and
solicitor is liable to punished for the purpose to destroy a valid mortgage transaction (Paul
Watkins, 2007).
Ans 4

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(a) In the reply of the problem in a case, the owner rely that caveat has been wrongfully
recorded, in such circumstance owner has option to apply either to
The High Court on an application to remove caveat in section 143, Land Transfer Act or
The Land Registrar on a written request to remove the caveat in section 191(e), Real Property
Act 1886.
In support of his allegation owner must prove that the caveat is not supported by a legitimate
caveatable interest and following foregoing process (Law handbook, 2016)
(b) Caveats and equitable priorities
For removal of ambiguity a case problem supported by a principle of qui prior est tempore
potior est iure (first in time takes priority), Such Principles contains rule of “first in time”. To
reverse priority of prior equity holder, the burden lies on the subsequent equity holder. The
court may consider the second equity on a basis of conduct of both equity holders (Dixon,
2009). In this instant case, a priority firstly given to bill as his equitable interest created first.
(c) The Maori Land Act governs all Maori freehold land and the titles to Maori in the Maori
Land Court. The general rule of sale in any Māori land that to confirm approval of the
preferred class of alienee (PCA). Such preferred class of alienee includes any person residing
within the local limits of jurisdiction of Moari Land Act. As per facts of the case, Ana had not
complied with certain requirements of sale and consequently a sale by Ana is not recognized
as valid sale (Moari Land Court, 2017). Such requirements are
o Non Serving of a sufficient notice to a member of the PCA.
o Any negotiation offers of a price.
o A conditional agreement prepared to sell the land outside the preferred class.
(d) The general rule is that body corporate is liable to maintain the particular unit property
for the purpose of its expansion. All proprietors of property contribute the cost of repairing
and maintaining with body corporate tax. Though the body corporate can oblige unit owners
to pay under following circumstances:
o If labour due to negligence of unit owner or who intentionally causes a substantial
damage to the property.

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o Any work carried out for the purpose of infrastructure of building units
o For the purpose of providing profits to some other unit owners (Ministry of Business,
Innovation and employment [NZ], 2017)
(e) As per case, the ruling of Williams & Glyn’s Bank v Boland [1981] AC 487 House of
Lords supports a response that wife has an overriding beneficial effect which cannot curtail
her entitlement to ownership of unit title. Thus court shall not grant the order of sale in favour
of cheap as transfer was not made within the knowledge of nika (King, 2015).

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References
Bant. E., & Harding M. (2010). Exploring Private Law. Cambridge University Press.
Dixon M. (2009). Modern Land Law. Routledge.
Hepburn S. (2013). Australian Principles of Property Law. Routledge.
Hinde G. W., Campbell N. R., & Twist P. L. (2007). Principles of Real Property Law,
LexisNexis.
Hovenkamp H. Kurtz S. and Gallanis T. (2016). Principles of Property Law. West
Academic.
King S. (2015). Beginning Land Law. Routledge.
Law Explorer, The Torrens System (2017). Retrieved from https://lawexplores.com/the-
torrens-system/#ch11fn5.
Law handbook (2016). Retrieved from
http://www.lawhandbook.sa.gov.au/ch23s08s01s04.php
MacKenzie, J.A., (2016). Textbook on Land Law. Oxford University Press.
Martin. T. (2007). A Concise and Practical View of Conveyancing in New Zealand,
Including the Land Transfer System. Whitcombe and Tombs.
Ministry of Business, Innovation and employment [NZ]. (2017). Maintenance
responsibilities in unit titles. Retrieved from
https://www.tenancy.govt.nz/uta/maintenance/
Moari Land Court (2017). Retrieved from https://www.maorilandcourt.govt.nz/.
Paul Watkins, (2007). Fraud in Conveyancing. A paper presented at the Australian
Institute of Conveyancers 2007 National Conference. Retrieved from
http://www.stewartau.com/multimedia/relatedmedia/Fraud_in_Conveyancing_
AIC_National_Conference_Paper_2007.pdf

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Gibbons (2017). The Structure(s) of Property Law. Retrieved from
https://www.lawsociety.org.nz/practice-resources/practice-areas/property-
law/the-structures-of-property-law.
Williams G. (2011). Property and Trust Law in New Zealand. Kluwer Law International.