Vendor and Purchaser 1 Final Exam

Question One

Issue

I would advise Joanne that she has the right and privilege to do anything she wishes to the house they wish to buy with Charlie. She can sell her share of the property to anyone she wants if, by any chance, she changes her mind and does not want to own it with Charlie. However, Joanne will need to sever the joint tenancy so that Charlie can hold the property as a tenant in common with another person before selling her share of the property.

Relevant Law

Law of Property Act

Application

When you are a joint tenant in real estate, you do not possess a separate share of the house or piece of land. Before a joint tenant could sell his or her share of the asset, the joint tenancy must first be severed so that the other owner(s) are retaining the house as tenants in common. If this is not done, the joint tenant will not be able to sell his or her share. Therefore, one should get special legal guidance on the processes involved in severing joint tenancy since the Conveyancing and Property Ordinance governs it.

The term "joint tenancy" refers to a kind of property ownership that is most often used in the context of real estate deals. Through a deed, concurrently occurring interactions between two or more parties may result in forming a mutually enforceable contractual relationship. These individuals might be members of the same family, close acquaintances, or even business partners. Take, for instance, the buying of a home by a couple who are married to one another. They decide to become joint tenants at the time of purchase. Both property owners will be listed as "joint tenants" on the deed to the property. Because each partner has a stake in the property, they are all entitled to equal benefits. Each party has the right to a 50% share of the earnings made from selling the property or renting the house to a third party, regardless of which option they choose. However, this also implies that they share equally in paying for the property, which includes the monthly mortgage payment, annual property taxes, and necessary repairs. If one party cannot fulfill its financial responsibilities, the other party is therefore obligated to take responsibility.

The establishment of joint tenancy results in creating a right of survivorship. This implies that if one of the parties passes away, the other will instantly take full ownership of the asset. Because of this, it is not necessary to go through the probate process or transfer a dead person's property to an estate. The probate courts determine the legality of a people's will and then distribute the assets to the beneficiaries equitably. Joint tenancy is often connected with real estate properties, but the more general legal notion of co-ownership with the right of survivorship may be applied to various assets, such as enterprises and brokerage accounts. Tenancy is often used interchangeably with owning a house and living in a home. Therefore, this helps explain why there is such a strong connection between the two.

Before agreeing to go forward with joint tenancy, you need to be aware of its particular downsides, which, despite its many benefits, are distinct enough to warrant consideration. As stated before, if at least one joint tenant is still alive, then the complications associated with clearing the property via an estate using a will are avoided. When a person passes away, their will must often go through probate, the legal procedure in which the courts examine a will to determine whether or not it is genuine. In most cases, once a person passes away, the survivor will not be able to access or claim the deceased person's assets until the probate process has been completed. The probate procedure may also assist in deciding how a dead person's assets should be dispersed if the deceased person did not identify beneficiaries or did not have a will in existence. On the other hand, the procedure may very well take many months to figure out. Probate and the drawn-out legal procedure are circumvented when assets are held under joint tenancy, which enables the joint tenant to acquire instant possession of the property.In a shared tenancy, each of the parties is equally responsible for the upkeep and management of the property, in addition to participating equally in the financial advantages of the property. For instance, one member of the marriage cannot take out a mortgage loan on the home and leave the other member of the relationship responsible for the payments on the loan. The dissolution of a marriage or other marital difficulties might make joint tenancy more complicated. Both partners are responsible for paying off any debts incurred during the relationship, and neither may sell any assets held jointly without the other party's approval. Therefore, if a loan is taken out on the house, both of the tenants are liable for paying back the loan.

Conclusion

Joint tenancy is a kind of property ownership that makes it easier for two or more persons to have equal interests in a piece of property, whether it be real estate or anything else. In most cases, it is possible to unilaterally terminate a joint tenancy without the awareness or agreement of the other tenant in the property. The quickest and easiest way to accomplish this goal is to sell the portion of the property that you own to another party, who will become a tenant in common with the other tenant. When one of the tenants passes away, their portion of the property does not need to be probated together with the other of their property. Instead, the part that belonged to the dead tenant is simply distributed equally among the joint tenants who are still alive. Joanne should therefore be aware of her rights in co-ownership of the property and the terms and conditions involved in joint agency before agreeing to buy the house with Charlie.

Question Two

Issue

I would advise Sarah that she has the right to claim the transfer of Point Piper property to her. She can file a lawsuit if she feels that the transfer is illegal and is considered an illegal property transfer if it is done via any procedures outside the law.

 Relevant Law

Conveyancing & Property Law

Application

In this scenario, we will assume that the legitimate owner is not complicit in the illegal behavior. The genuine owner has also found herself in the position of victim. Someone else oversaw managing the property transfer and they did it using methods that resulted in the transaction being unlawful. The transfer was regarded to be illegal since it was done based on forging paperwork. Forging the paperwork involves either producing fraudulent documents, such as a Will or faking the signatures on the papers via which the transfer has been performed. Both actions are considered acts of document forgery and could have been used by Gorge to write the will to Salvation Army.

A civil claim for an injunction can be initiated if the transfer was unlawful and the request is filed to the court to restrict the defendant from transferring the property. The genuine owner may initiate a civil case for proclamation and ownership, and the court may deem him the owner and transfer the property to her. A civil petition may well be launched for annulment of the conveyance deed by which the asset has been transferred improperly. In order to have a conveyance deed declared invalid concerning an owner's interest, he or she must launch legal litigation. The owner might seek a remedy from the court that the transfer may be deemed null and invalid as far as his portion of the asset is relevant.

Conclusion

It is possible to revoke a will after it has been registered by initiating a proceeding in the Civil Court. The court has come to terms with the document containing unlawful information. It is not up to the whims and preferences of the party requesting cancellation to order that it be canceled. It is necessary that the document include some kind of unlawful activity, such as fraud, deception, or another offense. If the error in the document is not fixed, there must be a significant possibility that the party will suffer some kind of loss as a consequence. Certain rights accrue to a beneficiary of a will or trust upon probate or the Settlor's death, depending on the nature of the gift. Probate safeguards the interests of those who stand to gain from a last will and testament. If settling the estate is likely to take years, a good executor or trustee will keep the beneficiaries and heirs updated on the progress and may even petition the court for permission to distribute them. The fiduciary therefore has an obligation to the heirs to provide timely responses to their inquiries on the estate's progress and its holdings. 

Question Three

Issue

In Australia, the land title system is known as the Torrens system. The idea that the Torrens system is a system that confers titles via registration rather than a system that only registers titles is one of the most fundamental principles underlying the Torrens system. The Act of registering gives a landowner legal ownership of their property.

Relevant Law

The Real Property Act

Application

Unless there is evidence of fraud, the estate of a registered owner is given precedence under Section 42(1) of the Real Property Act 1900 of New South Wales. The property of a registered proprietor is usually "indefeasible," which indicates that the owner mentioned on the registration continues to hold their asset or interest in the land unrestricted of any self-interest that is not mentioned on the register. This also means that the property of a registered proprietor cannot be sold or transferred without the registered proprietor's permission.

A civil appeal has been filed in the case of Degussa v. Lynn (2019) SASCFC 107. This case is about enforcing a restrictive covenant that applies to divided lots. In Degussa v Lynn, the High Court was forced to assess whether the registered owners of a lot knew of, and were obligated by, contractual terms in a common building design. The issue is fundamental to the Torrens system's functioning and goal, which is a land classification system. Both parties were legal owners of lots of property that had been subdivided in 1963, and a "building plan" had been implemented that limited most of the lots to having just a single home on them. Current owners, one of whom wished to construct two establishments on their lots, were found to be bound by the covenant.

Every real estate attorney in South Australia can speak about the Torrens system with a sense of immense satisfaction. Robert Torrens, an Irish emigrant who eventually made his home in South Australia, is credited with establishing the system that now carries his name. It is a method of registering property titles. A governmental assurance that the certificate of title provided by the Torrens system provides an accurate and full explanation of the condition of the title to that property is one of the defining characteristics of the Torrens system. It is sufficient for a person interested in a piece of land to look at the certificate of title and the interests that are notified on it to guarantee that their dealings with the property will not result in an erroneous outcome. The Torrens method was, therefore, successful in bringing order out of chaos and eventually became standard practice in Australia.

Conclusion

The goal of the Real Property Act of 1900 in New South Wales is to declare Titles to Land and to Facilitate the Transfer of Ownership of Land. It, therefore, mandates the registration of title finer details on a Register for land and designates the Registrar-General as the accountable party for the management of the Act.