Professional Documents
Culture Documents
(v) Title good against and notice to world with being on Register - s 62
-only need to show you are on title to have good rights to property
-Register also incorporates anything else listed on title and gives it IND protection
-registered title is paramount subject to a number of exceptions - s 62 - paramountcy
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-no need to look behind person you are dealing with as long as not obviously fraudulent
-anyone dealing w/ land assumed to have notice of everything on the title
No obligation to look further than cert of title - s 182
-thus, prima facie, a new RP doesnt have to abide by unregistered interests
-only if they had notice of them will they have to abide by them
-evidence of title can be provided by duplicate cert of title - s 75
-but nearly all land is ET land, so s 75 effectively defunct
-but w/ ET land, certified print out of title is evidence in court
Placement of interests on title makes them IND, and also makes content of instruments
referred to IND as well - Harvey v Hurley
-necessary to request copy of document referred to on title - eg mortgage
-person taken to have CN of what is in agreements as well
-looking at title you are taken to have seen interest and interest agreement
-eg clauses in mortgage agreement become IND too
>> Harvey v Hurley
-easement granted for ROW on property, dispute arose as to its scope
-two different plans existed - one attached to registered easement and other not
-CA - plan attached to memo of transfer was conclusive
-plan itself took IND because it was part of instrument noted on title
-thus world taken to know how far ROW extended because of plan
(vii) Even if previous RP didnt have good title, or agreement concerning interest
is defective, new interest holder protected by IND - s 183
(1) Need consideration given by transferee if previous RP was fraudulent
-otherwise s 63(1)(c) applies because transferee is a volunteer
-in which case IND doesnt apply
-hence why s 183 is described as flipside to s 63
(2) Nemo dat principle doesnt apply to transactions of interests in land - s 183
-bona fide purchasers for value shielded against various proceedings
-even if previous RP was registered through fraud or accident then new RP protected
-two different ways title could be flawed at CL:
(a) Defect in vendors title
(b) Flaw in the agreement (agreement void or voidable)
-signature was forgery, K void due to duress, formalities were defective, etc
(a) Defect in vendors title does not affect title being IND
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(2) Has the new person registered committed fraud? Section 63(1)(c)/s 62
(a) Who is the plaintiff?
(i) Can a registered interest holder be defeated through fraud?
-P is another person was once registered on title or is currently registered on title
-eg former RP trying to get land back or RP wants to get rid of a registered mortgage
(ii) Can an unregistered interest holder assail IND?
-unregistered interest holder wants to claim against RP
-RP will claim they are not bound by unregistered interests under s 182
(b) Who is the alleged fraudster? Agent or fraudster themselves?
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-person whose title being challenged or agent (implicating RP) must have committed fraud
-fraud must be within scope of tasks agent was meant to perform - Assets Co v Mere Roihi
>> Nathan v Dollars & Sense
-N was agent of D&S in getting mortgage from Ns parents
-N was asked to obtain signature of his parents after solicitor prepared papers
-N got fathers signature but forged mothers signature
-forgery was within scope of Ns task as agent, although not authorised
-thus N, as agent, committed fraud, which translated to D&S
-effectively D&S had committed a fraud in getting mortgage granted
-because of fraud, mortgage not protected by IND - s 63(1)(c)
(c) If new interest holder is not a party to fraud then they take good title, and are protected by IND
against being assailed by former RP or unregistered interests
-but if a party to fraud, new interest holder cant take IND title
(d) What is the nature of fraud when unclear whether a person is a party to fraud or not?
Each case must be determined on its facts - knowledge and conduct of RP is focussed on
Essential element of fraud is dishonesty - Assets Co v Mere Roihi; Nathan v Dollars & Sense
-for there to be dishonesty there needs to be knowledge or wilful blindness as to truth
-person who take s title must have known of or be wilfully blind to the truth
-wilful blindness - individual abstained from making inquiries for fear of learning truth
-but just knowing of prior interests isnt immediately dishonest - s 182
-direct/constructive knowledge of trusts/unregistered instruments isnt fraud - s 182
If transfer was designed to defeat interests of another registered interest holder then that can amount to
fraud - Waimiha Sawmilling v Waione (PC)
-problem is whether object has to be sole, dominant, or just part of reason
-Glantschnig - transaction was designed to defeat interest of beneficiary under a trust
If dealing with unregistered equitable interest, knowledge of interest itself not fraud - s 182
-at equity, taking conveyance with actual/constructive notice of interest was fraud
-but under LTA, s 182, knowing of unregistered interest/trust is not enough for fraud
-instead dishonesty, actual knowledge, or wilful blindness is needed - Assets Co
>> Efstratiou v Glantschnig
-Gs were married; Mr G was RP, Mrs G not
-Mrs G provided half deposit at start for property
-Mr G went to Austria, then came back and found Mrs G was an adulterer
-unregistered interest was fact Mrs G owned half of property beneficially
-Mr G thus held half of property on trust for Mrs G
-Mr G sold property to E - E was held to have committed fraud
-sold grossly under value, E didnt inspect property, payment made in 3 days of offer
-court found E either knew of Mrs Gs interest or purposely avoided the fact
-transaction also intended to defeat Mrs Gs interest
>> Bunt v Hallinan
-Bs used to own land, but then sold it and agreed on lease over it
-thus unregistered lease was equitable interest Mrs B had
-H purchased property and denied having to give effect to lease
-H was at auction where conditions of sale read out, including lease
-H asked Mr B about shed - Mr B said he told H there was a lease in place
-B went to solicitors office and asked for title search
-solicitor found no lease registered and said s 182 meant notice wasnt enough
>> Bunt v Hallinan: majority concluded no fraud
-H didnt acquire title with a view to depriving Mrs B of her rights
-H had been advised Mrs B had no rights to be deprived of
-H not wilfully blind; he sought legal advice that Mrs B had no rights deprive
>> Bunt v Hallinan: Eichelbaum J concluded H was fraudulent
-Eichelbaum J relied on statements of Salmond J in Waimiha (CA)
-fact H didnt ask for copy of lease agreement was wilful blindness and dishonest
-Hs inquiries were perfunctory and H was taking a gamble
(e) If dealing w/ unregistered interest has there been supervening fraud?
-RP intends to honour unreg interest, after reg dishonestly refuses to recognise interest
-thus fraud is committed after registration of new RP on title
-not clear if SF exists under LTA; but PLA grants relief for land-locked properties
-moreover, an in personam claim could be used to skirt around IND
>> Sutton v OKane
-two lots subdivided w/ easement ROW to get to rear property
-easement shown on plan but nor registered - thus unregistered interest
-no mention of easement in S&P agreement when property sold to Ss
-Ss let Os use ROW, but parties fell out and Ss tried to stop Os from using ROW
-Wild CJ didnt state whether SF is possible under LTA
-Wild CJ found there was no fraud in standing on ones rights in any event
-Richmond J said no possibility of SF in NZ under LTA
-Richmond J - fraud must be committed at time of registration of new RP
-Turner P applied Webb v Hooper
-Turner P - SF is possible under LTA
-Turner P - Ss had more than mere knowledge, knew Os reliant on easement
>> Bahr v Nicolay (HCA)
-two judges said conduct after registration (SF) may be fraud
-two judges said fraud must occur before registration (ie no SF)
-Brennan J didnt rule on whether SF exists
(f) Is the fraudster still registered on the title?
-defrauded person can apply to court, court then instructs Registrar to correct title
>> Heron v Broadbent
-Herons were RPs; B, fraudster, executed mortgage in favour of Hussey
-Hussey not implicated in fraud - bona fide mortgagee for value
-B then transferred property to himself, Hussey registered mortgage
-Bs title was impeachable for fraud - B got title through fraud
(g) Has fraudster passed interest on to another or interacted w/ innocent mortgagee?
-has this new person been a party to fraud?
-if new person is not party to fraud and has purchased/entered agreement for value they are protected
by IND despite purchasing from/entering K with a fraudster - ss 62, 63, 183
-Heron v Broadbent - Husseys mortgage protected by IND because not party to fraud
(4) Other registered interests? RP takes title subject to other registered interests
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(5) Has a prior cert of title already been issued? Section 62(a)/s 63(1)(e)
(6) Omission/misdescription of an easement? Section 62(b)/s 63(1)(d)
-courts interpret this as applying only to legal easements
-if a legal easement left off title, it can be compelled to be put on
>> Millns v Borck
-legal easement of ROW included on title
-admin error meant when new cert issued registered easement was omitted
-this fell within s 62(b) and thus new RP had to comply with easement
-RP could get compensation for easement they didnt expect though
L,
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(xi) PLA 2007 ss 321-338 provide remedies that skirt around IND
(xii) If an innocent party loses out the state pays them compensation
Newly registered person gets to keep their name on the Register despite being faulty
-person who loses their interest or has to take an encumbered title gets compensation
-new registered person gets to keep name on title and other party gets compensation
Has the limitation period for claiming compensation expired? Section 180
-limitation period lasts six years - starts running when person aware of deprivation or should
reasonably have been aware of it
(1) Loss through omission, mistake, misfeasance of govt officials - s 172(a)
-covers errors made by LRO
-compensation assessed on normal CL principles
-compensation puts you in position as if wrong had not been done - McNicholl v AG
(2) Deprivation of estate/interest through effect of IND
-new RP/person w/ interest registered on title gets to remain in this case
-and the person encumbered or who has lost property gets compensation
-could be total deprivation of land - former RP no longer on title
-or partial deprivation - mortgage registered by fraudster, easement on title removed
-loss assessed at time of transfer of property to new RP or when interest added/removed
-value of property at the time property was transferred to new RP - s 179
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If titleholder doesnt take claim before end of period, adverse possessor gains rights
-from when they occupy the clock starts ticking to when they acquire rights to land
During period of adverse possession, adverse possessor risks being ejected
-they dont acquire rights until point at which they acquire rights
-therefore, until that point they can be ejected by true owner at any time
But adverse possessor has better rights than other attempted adverse possessors
-this is despite fact that first adverse possessor doesnt yet have title
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(d) Nature and quality of possession required for AP is same for LA/LTA/LTAA
Occupation needs to be actual, open and manifest, exclusive and continuous - McDonell
(i) Occupation needs to be open and manifest - McDonnell v Giblin
-must be sufficiently obvious to give owner means of knowing someone challenging title
-person reasonably careful of their interests living in locality should be able to reasonably discover
someone has taken possession of their land
-if concerned to look, would owner visibly be able to see someone attempting to set up exclusive
possession of the land
-must enable true owner to be able to consciously realise they can eject adverse possessor
(ii) Possession must be exclusive - McDonnell v Giblin
-possession must be such as would be sufficient to maintain possession against anyone but the rightful
owner - must be a degree of exclusivity
-must be such that if T tried to assert possession, adverse possessor could sue for trespass
>> Boskett v Drummond
-having fence in wrong place didnt mean AP
-it was a give and take fence because impractical to have it on legal boundary
-thus couldnt be deemed immediately to be exclusive possession
(e) Deeds system land?
(i) Limitation Act 2010 adverse possession only applies in relation to deeds system land
-hardly any of this land exists - most of it is under Torrens system
(ii) Adverse possession survives under s 21 Limitation Act 2010
-after expiry of period, the adverse possessor has a defence as an adverse possessor
-if claim not put in for ejectment w/in period, original owners title is extinguished
(iii) Period of time required differs depending on who is owner of land
-Crown - 60 years must expire
-private landowner - 12 years must expire
(f) Land Transfer Act land?
(i) Starting point is such land cannot be lost through adverse possession - s 64
-CLs encapsulation in LA 2010 doesnt apply to LTS land
-save for provisions in LTAA 1963 title to LTS land cannot be lost through AP
(ii) Exception 1: when land brought under LTA, AP had a matured AP claim - s 79
-even if title is ordinary, title may be void because of AP
-covers situations where when land brought under LTA, someone else already has AP claim
(1) Did the adverse possessor meet the requirements of s 21 and s 27 LA?
-must have been in adverse possession for either 12 or 60 years
-and must have been in adverse possession at time land brought under LTA
(2) When was land brought under LTA?
(3) Had the adverse possessors claim matured at the point land brought under LTA?
(iii) Exception two: cert limited as to title or parcels is issued while putative adverse possessor is partly
way through period required for AP claim - s 199(1)(d), s 199(3) and s 200
-deals w/ situation where no matured AP claim, but person is in adverse possession
(1) What was the date at which the land was brought under the LTA?
-does this come after adverse possession has already begun?
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(2) Was the cert of title limited as to title or parcels when it was issued?
-ss 199 and 200 only apply when cert of title was issued limited as to title/parcels
-it need not be limited now, but must have been limited then
(3) Has the alleged adverse possessor been in AP for a period of time?
-they must also be in adverse possession at time cert of title is issued
(4) Issue of cert of title limited as to title doesnt stop time running on AP claim
-therefore, time keeps running towards the 12 year or 60 years required
-adverse possessor may have been for 3 years when cert issued, and thus have to
remain for 9 years for claim to mature
>> Boskett v Drummond: the claim succeeded temporally, but no actual AP
-cert of title was limited as to title and parcels here
-relevant date was when land was brought under LTA
-once this was discovered you can decide whether AP claim had matured
-land was brought under LTA in 1929
-thus if Bs predecessors had matured claim at that point, they could claim AP
(iv) Exception three: title by prescription
(1) Guarantee under s 64 LTA is subject to LTAA 1963
-this applies today when a person tries to claim AP of ordinary title
(2) Has the alleged adverse possessor been in AP for 20 years?
-must have been in adverse possession right throughout
-and must continue to be in adverse possession
(3) Title does not automatically vest in adverse possessor after 20 years though
-at CL title to land was extinguished on application of AP for title - s 3(1)(a)-(b)
-but adverse possessor can still apply for title under s 3 LTAA 1963
(4) Has there been any objection to the application?
-Registrar has to give notice of application and look for interested parties
-if interested party registers caveat Registrar must reject adverse possessors claim
-only if no one objects will title to land pass to adverse possessor
-shows LTAA was designed to deal w/ abandoned land - Boskett v Drummond
>> Boskett v Drummond
-claim under s 3 was spurious
-if you claim under s Registrar must advertise and seek objections from RP
-Ds thus could lodge a caveat which they obviously would
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