Property Law Analysis: Joshua's Title and Mortgage Disputes

This report delves into a property law scenario involving Joshua, Maxwell, and several other parties, focusing on the complexities of land ownership and mortgage disputes. The analysis begins by examining the concept of a Certificate of Title and its significance in establishing property rights, along with the role of caveats and mortgages in securing interests in land. The case unfolds with Maxwell, the registered proprietor, borrowing money and subsequently entering into multiple agreements, including one with Charlie secured by an informal promise and another with Pauline, who lodged a caveat. The situation is further complicated by the fraudulent actions of Maxwell's son and Louise, who obtained the certificate of title through deceit, and then sold it to Joshua. The report then explores the legal positions of each party involved, particularly Joshua's claim to the property and the validity of the various mortgages. The report also examines the obligations of a mortgagee, the impact of missing documentation, and the priority of interests when multiple parties claim rights to the same property. Ultimately, the analysis considers whether Joshua would succeed in becoming the registered proprietor and be subject to the mortgages, as well as the legal outcomes for all parties involved, especially in case of Maxwell's bankruptcy.

Running head: PROPERTY LAW
PROPERTY LAW
Name of the Student
Name of the University
Author Note

a)
The issue that is to be discussed in this particular scenario would be whether Joshua
would succeed in becoming the registered proprietor and be subjected to the mortgages of the
land. Apart from that, the legal position of Joshua concerning the title in the land and the
Maxwell’s ownership would also be discussed.
A Certificate of the Title is considered to be a person’s record for interests of the rights
which are considered to affect the land. The Certificate of Title is considered to issue the
Registrar of the Titles for the individuals who are considered to be entitled for it. An example of
such would be the mortgagee or the registered proprietor. This certificate is considered to show
the creation or the formation date and in addition to such the registrations and other kind of
recordings are also made or formed in the Register during that time. These are considered to
include the different names of the registered proprietor or the proprietors and any other interests,
which are there for the mortgages or the covenants and other caveats. These registrations are
considered to be in the register and such have a guarantee from the government1.
A caveat is considered to be a formal notice which would be for a warning which has
been lodged against the title of any property. These also prohibits or prevents any individual
from being involved as the registered proprietor or owner from being able to deal in the
property2.
Mortgages are considered to be when any owner of the land is considered to borrow
money from any other individual who is considered to be the lender then such lender is
1 Golder, Hilary and Diane Kirkby, "Mrs. Mayne And Her Boxing Kangaroo: A Married Woman Tests Her Property
Rights In Colonial New South Wales" (2003) 21(3) Law and History Review
2 Balestra, Melanie L., "Liability Risks For Psychiatric Mental Health Nurse Practitioners" (2018) 14(9) The Journal
for Nurse Practitioners

considered to require some kind of a grant from the landowner as a security over the land. Such a
security is considered to be known as a mortgage and this security is considered to entitle the
lender to sell the land in case the borrower is not able to repay the money, which had been agreed
between the various parties3.
In this particular scenario, it can be understood that, Maxwell is considered to be a
registered proprietor of a land which is considered to be under the Real Property Act and he had
borrowed some money from Charlie in order to invest such in a dairy farm. The memorandum of
mortgage was considered to be completed and finished by Maxwell but the certificate of the title
was mislaid. Maxwell had promised Charlie that the money borrowed would be returned to
Charlie soon and therefore, Charlie based on the promise had not lodged a caveat. Maxwell had
also gone into an agreement with Pauline and did not inform Pauline about the agreement with
Charlie. The certificate of the title was considered to be missing and therefore, Pauline had made
their agreement into a deed and then lodged a caveat over to the property. Maxwell’s son had
found the certificate of title and with that used it to get some quick funds and therefore sold such
to Louise by tricking Maxwell into signing a blank transfer. Louise had sold it to Joshua before
registering her ownership. Joshua had the certificate of the title but when such documents were
presented to the Land and Property Information it could not be lodged as Pauline had already
filed a caveat. Caveats are considered to be registered on title to any property and the potential
purchasers are considered to be notified of such while being shown a property. As the caveat is
considered to be a statutory injunction which has been provided under the Real Property Act,
1900. As it can be seen in the case of Deutsch v Rodkin [2012] VSC 4504. Under the Real
3Haffner, Marietta E. A., Rachel Ong and Gavin A. Wood, "Mortgage Equity Withdrawal And Institutional Settings:
An Exploratory Analysis Of Six Countries" (2015) 15(3) International Journal of Housing Policy
4 Deutsch v Rodkin [2012] VSC 450.

Property Act and section 1415 fraudulent acts are considered to be deemed as indictable offences
and would be subjected to criminal penalties. Louise gave Joshua the certificate of title and they
were unaware of the fact that the land was transferred to them fraudulently and in addition to
such they were unaware that a caveat had been lodged. Therefore, due to such Joshua could
claim for remedies but would not be a mortgagee for the land as such belonged to Maxwell who
was a registered proprietor.
b)
In case of a mortgage, it is considered to be a type of security which is taken by the
lender from the borrower as a guarantee for the payment of the money which has been borrowed
by the mortgagee. A mortgagee is considered to have some obligations where the individual or
the person is not considered to enter into any mortgage without being able to verify it first about
the authority of the anticipated and intended mortgagor in order to enter into any mortgage,
which would be in accordance with that of the verification of any authority guidelines. The
maximum penalty under this would be 10,000 dollars or any imprisonment which would be for
two years6. A mortgagee is considered to retain a copy of some documents which would be used
for the objective of fulfilling the obligations which would be under that of the subsection for a
duration which has been prescribed through the regulations7.
In this particular scenario, the mortgage taken by Maxwell from Charlie was for investing
in a dairy farm but it was not a legal agreement or a deed. It was based on trustworthiness. On
the other hand, mortgage with Pauline was with an agreement and Pauline had also lodged a
5 Real Property Act, 1900 NSW Legislation.
6 Real Property Act, 1900 NSW Legislation.
7 Siegele, L., "Property And The Law In Energy And Natural Resources. Edited By Aileen Mcharg, Barry Barton,
Adrian Bradbrook And Lee Godden" (2011) 23(3) Journal of Environmental Law.

caveat over the property. Therefore, Pauline’s interest would be taken into consideration if
Maxwell went bankrupt since Pauline had protected interest in the property. In both the cases,
the Certificate of Title was considered to be missing and not provided with. Nevertheless,
Pauline had evidenced the agreement in a deed. In addition to such a caveat had also been lodged
for the property where the deed was considered to be the evidence of the interest. Therefore, in
conclusion, if Joshua is considered to be unsuccessful then the mortgage with Pauline would
have to be satisfied first in case Maxwell is considered to go bankrupt.