MLL327 Property Law T1 2022 Exam: Easements, Rights and Security

This document provides solutions to a Property Law exam, addressing key concepts such as easements, property rights, security interests, and native title within the Australian legal framework. The exam questions cover scenarios involving easement claims, determination of property rights and inte...Read More

Property Law

Table of Contents
Question 1........................................................................................................................................3
QUESTION 2..................................................................................................................................3
Question 3........................................................................................................................................4
Question 4........................................................................................................................................5
Question 5........................................................................................................................................6
Question 6........................................................................................................................................6
REFERENCES................................................................................................................................8
Books and Journals......................................................................................................................8

Question 1
The issue of the given case study is that whether the party can claim easement over the
other land without having ownership right.
As per Australian Property Law, easement means the right to use the property or land of
another person without occupying the title. This is a section of the land registered on someone
property title which gives another person the right to use the land for the specific purpose even
though they are not registered in the title. As per the case law of MD V Holes (1905), the
easement on the land is basically created with the two actions such as division of land or use of
land from longer period of time. As per the creation of easement on the land clause under the
Australia property law, if a person uses a neighbor land for the positive and good purpose for the
time period of 20 or more years than this may result into a legal easement by the prescription
(Sheehan and Brown, 2021).
In the present case study of Rowan and Proctor, both are the neighbor farmer. Here, after
Proctor erected the fence on the CB boundary the Rowan has claim easement over the land on
Proctor that they are using since 1995 till 9th September 2017. However, the Proctor has denied
that the Rowan has not used their land at all and uses just to turned their vehicle on their own
land. This is possible even though the use of land is unauthorized to that person. However, as per
the Acquisition of Land Act, 1967, it is indicated that the purpose of using the land by the Rowan
should be legal and should applies the normal rules of creating an easement. It is because in the
case using the other land with illegal purpose will not result in the creation of long use easement
even though statutory period is completed.
On this basis, it can be concluded that the decision should be given by court in favor of
Rowan. It is because Rowan is using the land of Proctor since 1995 which result into 22 years in
the year 2017. As in the given case study, the decision must be in the favor of Rowan where they
are using the land of Proctor for legal purpose from more than 20 years than they are liable to
claim easement over the Proctor land.

Question 2
The issue in the given case study is regarding the rights , interest and title to the party that is
mentioned in this given case study.
According to the Australian property law Property law of Australia refers to the
provisions and regulations that regulate the property law. In this Both the real and personal
property is included under the property law. This law relates to the protection of the rights and
interest of the landowners regarding the property rights issues. The law is introduced in order to
protect and promote the rights of the landowners in their dealing with other parties which
includes government, business and community. The Rights of the Property law in Australia is
based on three instruments including:Deeds, Magna Carta and The bill of rights act(Dobinson,
2022).
According to the section 60 of the Transfer of land it has been observed that where
there are more than two person that are entitled to the property the such person will receive on
certificate for the entire property for the undivided shares.According to the case study which is
focused on the rights , interest and incidents of the property are :
As per the case study Marry has the right over the property as Joe sister is still surviving
but on the other hand in according to the case study Marry has no right transfer the property to
her son from the first marriage i.e. Mick Dunlop. It is advised that the property should be
distributed among the children, Johan Smith and Anabel Grover. Mary was not having nay
absolute right to transfer the property but if she has any property that she has from the first
marriage can be legally transferred to her son Mick Dunlop.
When Joe Smith died, Marry has the right over his property as she did not marry which
would have been done then the property would have been transferred to his brother Johan
Smith(Cho, 2018). Marry Smith has the right to transfer that part of the property on which she
has full ownership to Mick Dunlop and is not entitled to transfer any portion from the property
of Joe Smith. After the death of Marry , the property will be divided among the remaining family
members.

 Question 3
The issue of the present case study is the various legal rights and equitable interest that
is created between both the parties in the contract of sale of the land.
As per the Australian law legal right are enforceable against the land new owners and are
more flexible than the equitable interest. It has been said that if any party enters into an
agreement with specific terms and conditions it becomes important for both the parties to comply
with those provisions and if nay party breaches the terms of the condition, then the party who
suffered loss has the right to take legal action against the other party(Ritter, 2020). The present
case study is related to the contract of sale of the land that took place between Jim Lee and Mike
Spengler who were the owner of the lots in small rural town . Both the parties entered into an
agreement with various condition that is binding on both the parties to the contract.
According to the case study, both the parties entered into an agreement that the lots will
be used only for residential purpose and agreed by both the parties that is both the parties have to
comply with the terms ans conditions mentioned under the contract of sale of land and not party
has the right to sell their land which can be used for other than residential purpose. On the other
hand the party is entitled to disclose material facts before transferring the ownership and in
absence of this the second party is liable for penalty for the breach of the condition of the
contract. As per the provisions of th act it should be stated that before transferring any property it
is the duty of the seller to disclose all the material facts to the buyer of the property(Alden Wily,
2018). Before the registration of the property in the favour of Tarantino , it was the duty of the
Mike Spengler to disclose the terms of the agreement entered with Jim Lee and in this situation
Lee has the right to take legal action against Mike Spengler for the breach of the terms of the
contract of sale of property.As per the case study in order to prove the covenant against the
Tranatino, Lee is required to prove to the court that there has been formal agreement between the
Mike and Lee which highlights that the land is to be used for only residential purpose and not
nay other purpose. If Lee is successful in providing that Mike has transferred the property
without disclosing the factors or intentionally have done with malafide purpose Lee has the right
to take legal action against Mike for the breach of terms of the contract of sale of property.
It can be concluded from the above case study is the that if the party has entered into nay
contract both the parties are bound to follow the terms and conditions of the contract and also to

disclose the material facts relating to the contract. It has been concluded that Mike has breached
and was at fault and did not disclose the material fact regarding the property to use the land for
residential purpose only.
Question 4
The issue of the given case study is the security interest that are being held by the lender
in case of failure of borrower to make mortgage payment.
According to Australian Property law, security interest is an enforceable legal claim or
can say lien on the collateral given by the borrower to the lender or banks on certain assets along
with the right to repossess all or part of the assets if they fail to make payment over the loan. As
per the Personal Properties Securities Act, 2009 is the statutory regime in Australia that state the
security interest of the borrower and lender in the particular personal property. While taking loan
from the lender, the borrower provides the security.
In the present case study of Tony newcombe and Quick Finance World Ltd., Tony has
borrowed $1000000 from the World Bank Ltd in order to start their business. For this, Tony has
provided the collateral over its property, transfer the equity of redemption of the property, title
document of Gonazales property to the loan manager of the Quick Finance. This is basically
provided by the Tony against the business loan taken from Quick Finance. As per the property
law of Australia, the following is the security interest that are being held by the Quick finance:
firstly, the property of Tony in the Ballarat, Victoria. This is the owner occupied house of the
owner which is provide by the Tony to the Quick finance bank as a security interest. Further, the
security interest help by Quick Finance in the given case study is equity of redemption of the
property as well as the title document of the Gonzales property (Payne, Morgan and Piquero,
2021).
On the basis of the above rule and application it has been concluded that owner property,
neighbor property and equity of redemption on owner property are all are the form of the security
interest held by the Quick finance in the present case study which the bank or lender can seize on
the ground that Tony is unable to make repayment of their business loan. It is because the

business venture of Tony is failed and there have no money to repay the remaining amount of
loan to the Quick finance. The bank can seize the property of Tony worth $850000.
Question 5
Native title refers to the bundle of rights and is not refers to the single set of rights and
this title can be partially extinguished and each of the given right can be extinguished
independently. IN order to prove that or determine whether the native title has been extinguished
is the inconsistency of incidents tests is required that there should be comparison between legal
nature and incidents of the statutory rights which have been granted and native rights have been
declared. It has been stated that Western Australian pastoral leases do not impose any exclusive
possession and d not result into fully extinguished the native title(Finlayson, and Smith,
2018). In the case of Wilson v. Anderson , the native title claim was made in relation to the land
which included Wilson's property. The property mentioned was basically the perpetual lease that
was used for grazing purpose. The Full Federal Court was of the opinion that granting of the
perpetual lease will not result into necessarily extinguishing the native title. The case was
appealed in the High Court and declared that native title has been extinguished by the grant of
the perpetual lease. The law for the protection of the native title from extinguishment must
exclude the application of the State and Territory laws within those the laws are operating (Cook,
2020.). The amendments in the native title act allows the National Native Title Tribunal in order
to provide assistance to other native title holders . The changes implemented aims to assist the
early resolution and managing the disputes which can be arisen after the determination of the
native title.
Question 6
As per Australian property law, the essential element of a common law lease are as follows:
 Exclusive possession: This is the first element of the common law lease which indicate
the right of the tenant to use the premise of the owner and exclude all the other people
from the premises. This right also allows the lessee or tenant to exclude the landlord from

the premises under common law lease except certain situation. It is because there is some
example of situation where landlord can enter the premises such as viewing the premise
condition, repairing the premise and terminating the lease agreement on the ground of
failure of tenant to pay the rent or breach of contract (SCANIAINVENTOR, 2021).
 The premises: This is another essential element of common law lease on which lessee
have possession right. This element cover what is included or excluded from the premises
that is covered under the Australian Law lease agreement (Rizoiu, 2021). As per the
Australian property law, the premises might include an entire building, a floor of building
and a room. It also includes shops, kiosk in a shopping center, storage areas, car parking
spaces etc.
 Certain Term: The term period of lease is also a significant and essential element of the
common law lease. The certain term means that in the lease agreement, the
commencement date of the lease should be clearly as well as properly defined in the
agreement. For example, the commencement date can be determined as specific date such
as 27th January, 2021, seven days from the completion of landlord fit-outs work and lastly
the three days after the date of development approval. In case when there is no date
specified in the agreement, then in such case it is indicate that actions and intentions of
both landlord and tenant should be from commencement date.
 Rent: The rent in the form of consideration is also one of the essential element of the
common lease law (Gurran, Maalsen and Shrestha, 2022). This indicate that the rent
payable by the lessee to the leaser should be mutually agreed by both the party in the
lease agreement under Australian property law. It means the consideration of the
agreement should be deciding on the mutual agreement of both the parties.

REFERENCES
Books and Journals
Alden Wily, L., 2018. Collective land ownership in the 21st century: Overview of global
trends. Land. 7(2). p.68.
Cho, G., 2018, August. The Australian digital farmer: challenges and opportunities. In IOP
Conference Series: Earth and Environmental Science (Vol. 185, No. 1, p. 012036). IOP
Publishing.
Cook, J., 2020. Indigenous land rights in the 21st century. James Cook University Law
Review.26. pp.99-125.
Dobinson, J., 2022. A History of Australian Design Law. In History of Design and Design
Law (pp. 505-532). Springer, Singapore.
Finlayson, J. and Smith, D.E., 2018. The Native Title Era: Emerging Issues for Research, Policy
and Practice. Canberra, ACT: Centre for Aboriginal Economic Policy Research
(CAEPR), The Australian National University.
Gurran, N., Maalsen, S. and Shrestha, P., 2022. Is ‘informal’housing an affordability solution for
expensive cities? Evidence from Sydney, Australia. International Journal of Housing
Policy. 22(1). pp.10-33.
Payne, J. L., Morgan, A. and Piquero, A. R., 2021. Exploring regional variability in the short-
term impact of COVID-19 on property crime in Queensland, Australia. Crime
Science. 10(1). pp.1-20.
Ritter, D., 2020. Contesting native title: From controversy to consensus in the struggle over
Indigenous land rights. Routledge.
Rizoiu, R., 2021. How to (De) Construct a Legal Institution: On the Essence of Security
Interest. Romanian Rev. Priv. L., p.282.
SCANIAINVENTOR, V., 2021. Relationship of international law and municipal law—Treaties
—Relevance in interpreting national legislation—Paris Convention for the Protection of

Industrial Property, 1883, as revised—Australian patents legislation—The law of
Australia.
Sheehan, J. and Brown, J., 2021. Flood risk management: Property rights-focussed instruments
in Australia. Environmental Science & Policy. 119. pp.12-17.