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1. University of New England
School of Law
LAW282
Property Law II
Study Guide
Dr Kip Werren
Trimester 2, 2016

2. © University of New England 2016
CRICOS Provider No: 00003G

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Texts for Assignment 1
Textbook information, including options for purchasing the text, is available here.
The prescribed texts for this unit are:
Peter Butt, Land Law (LawBook Co, 6th
ed, 2009).
S Hepburn, Australian Property Law – Cases, Materials and Analysis (LexisNexis
Butterworths, 3rd
ed, 2014). (ISBN 9780409337150)
B Jackman and K Werren, Property Law, (LexisNexis Butterworths, 2nd
ed, 2014).
(ISBN 9780409337990).

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Assessment
Overview of assessment requirements
Assignment 1 (2,500 words) (Compulsory) 40%
Assignment 1
Assessment type: Research Assignment
Due date and submission time: 10 August 2016 11.59 pm
Weight: 40%
Aligns to Learning Outcomes: 1-4
Length: 2,500 words - Pleaseview the Essential Guide for Studying Law, for the
word limit policy. The actual word count (not the word count limit) must
be stated on the front cover of the assignment.
Bibliography: A bibliography is requested. The bibliography does not form part of the
word count.
Footnotes: The word count excludes all footnotes unless some footnotes go beyond
providing references and instead contain discussion.
Assignment Style: Please refer to the style checklist in the Essential Guide for Studying
Law for details on how the assignment should be formatted.
Referencing style that the assessment must comply with: Australian Guide to Legal
Citation.

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Assignment Question
Lyn is the proprietor of Red Acre, a large block of land located in the coastal village of
Zenith, New South Wales. Red Acre is registered under the Real Property Act 1900
(NSW). The land is very valuable as it has the potential to be developed into a holiday
resort.
Lyn’s solicitor Wendy took possession of Red Acre’s certificate of title. Wendy has a
gambling addiction. In order to pay off her substantial debt, Wendy approached Jackie
and stated that she was acting as an agent for Lyn and that she would sell Red Acre to
her for cash at thirty percent below market value. Jackie had no actual knowledge of
the fraudulent act but her suspicions were aroused. Jackie decided not to make any
further inquiries. At settlement, Wendy handed the certificate of title to Jackie and a
transfer, which bore Lyn’s forged signature.
Jackie then on sold (‘flipped’) the property to Mary for the current market value. Mary
searched the title and made a physical inspection of the property. Mary and Jackie then
exchanged contracts. When the time came for settlement, Mary undertook a title search
and physically inspected the property. She was satisfied that there were no caveats on
the title and there was no one in possession of the property. At settlement, Jackie
handed the certificate of title to Mary and the forged transfer from Wendy to Jackie.
Mary had the dealing stamped and then drove to the Sydney office of Land and Property
Information (LPI) in order to lodge the documents.
As Mary starts to walk up the steps of the LPI office, at the exact same moment, Lyn
also starts to walk up the steps. Lyn had discovered that the certificate of title had
‘gone missing’ from Wendy’s office. She decided to lodge a caveat in order to protect
her proprietary interest. Lyn has filled in the appropriate form (08X) to apply for a
caveat which is in her handbag as she begins to walk up the steps. The caveat
document has been stamped.
A friend reminds you that under the Torrens regime a void dealing may become
indefeasible upon registration. Your friend also notes that certain documents must be
stamped (stamp duty is a state tax) or marked before lodging with the LPI but
emphasises that stamp duty is Not a property law issue.
With reference to legal authority, discuss the property law issues.
Notes on the Assignment:
 In answering this question, it is important that you restrict your advice to
property law issues. Stamp duty is Not a property law issue;
 For the purposes of your foundation knowledge, but Not for elaboration in your
assignment answer, it is suggested that you research what exchange is and
what settlement is;
 If there are statutory provisions which are of relevance to your answer then
emphasis should be placed upon the relevant legislation and regulations in
force in New South Wales;
 If you are struggling to reach 2,500 words then consider whether or not you
have fully ‘teased’ out the legal issues; and

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 Review the resources available to all UNE students in CCH online, LexisNexis
AU, and Westlaw AU.

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Marking Criteria
There is no specific allocation of marks to individual criteria. The mark awarded reflects the
overall quality of the written assignment taking into account all criteria.
Content demonstrates:
 Identification of issues;
 Knowledge of the relevant legislation and relevant case law; and
 Application of the relevant legislation and case law to the facts of the question.
Structure demonstrates:
 Clearly laid out actions with logical progression through the various elements;
and
 Careful organisation (e.g. use of headings).
Expression, style and presentation demonstrates:
 Recognition of nature of audience;
 Recognition of purpose of assessment i.e. to assess your ability to analyse and
apply the relevant law to a given set of facts; and
 Written in plain English, in a style which is clear, fluent and concise.
 Careful proofreading.
Citation:
 Accurate Citation of sources, compliant with the AGLC.
Word Length:
 Within the stated word length.
You will need to demonstrate an ability to write consistently and coherently in English.
A high standard of English expression is an essential skill for lawyers. Markers in this
unit will be instructed to penalise assessable work that fails to demonstrate a consistent
level of clear and logical English.
In the context of the assignment, poor expression is often due to inadequate proof-
reading. Too many essays are handed in which are rushed first or second drafts, instead
of polished pieces of work. It is essential to proof-read your work in hard copy. Another
reason for poor written expression is that students may not have mastered basic
grammar, such as sentence structure and the correct use of punctuation. If you have
difficulties with these and other aspects of English expression, you should consult the
resources on offer at UNE Academic Skills Office (ASO). The ASO website has many useful
references. Alternatively, you can use the Grammarly website to check the grammar in
your assignment with the following instructions:

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Go to the URL and select the CREATE ACCOUNT tab. The account registration
screen will ask for your preferred password and an access code. After putting in
your preferred password, transfer the following access code dWYUZxGVf3q7cZog.
Another skill, which you must demonstrate, is an ability to structure the assignment.
There should be an introduction explaining what you will argue and how you will develop
the argument. In the body of the assignment, your argument should be developed in a
logical manner. There should also be a conclusion.

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You must also demonstrate critical analytical skills in the assignment. It is not sufficient
merely to describe arguments you come across in primary or secondary material. You
must also develop a coherent argument, which requires you to logically evaluate
material. Critical evaluation requires sustained discussion and in-depth analysis. With
only 2,500 words allowed, it is important to formulate sharply focused argument dealing
with key relevant points rather than generally to attempt to ‘cover the field’.

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Study Timetable
Week 1
27 June 2016
Topic 1: Co-ownership
Week 2
4 July 2016
Topic 2: Old System Title & the Priority Rules
Week 3
11 July 2016
Topic 2: Old System Title & the Priority Rules
Week 4
18 July 2016
Topic 3: The Torrens Regime
Week 5
25 July 2016
Topic 3: The Torrens Regime
Week 6
1 August 2016
Topic 3: The Torrens Regime
Week 7
8 August 2016
Topic 4: Mortgages
10 August 2016 Assignment 1 Due

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Topic 1 Co-ownership
Learning Objectives
At the conclusion of this topic you should be able to:
(i) Evaluate the fragmentation of interests in land that permits concurrent ownership
by two or more persons (‘co-ownership’);
(ii) Describe the two types of co-ownership, joint tenancy and tenancy in common;
(iii) Outline the creation, incidents and determination of the types of co-ownership;
and
(iv) Describe the rights of co-owners between themselves (‘rights inter se’).
Reading
 Peter Butt, Land Law (LawBook Co, 6th
ed, 2010) (hereafter ‘Butt’) Chapter 14
 Samantha Hepburn, Australian Property Law: Cases, Materials and Analysis
(LexisNexis, 3rd
ed, 2015) (hereafter ‘Hepburn’) Chapter 16 and briefly scan Chapter
9 (the operative word here is briefly)
Bronwen Jackman and Kip Werren, Property Law (LexisNexis, 2nd
ed, 2015) ad hoc
– i.e. read when you would like to clarify relevant property law concepts (hereafter
‘Jackman and Werren’)
Topic content
1.1 Concurrent ownership of estates or interests in land
1.2 Joint Tenancies
1.2.1 Creation of joint tenancies
1.2.2 The ‘Four Unities’ of Possession, Interest, Time and Title
1.2.3 The right of survivorship (‘jus accrescendi’)
1.2.4 Determination (or ‘severance’) of a joint tenancy through survivorship,
alienation (voluntary and involuntary), agreement, conduct or merger.
1.3 Tenancies in Common
1.4 Rights of co-owners inter se including the right to income and profits; the right to
an occupation fee; claims for improvements and repairs; contractual restraints
between co-owners; and rights on partition or statutory sale under s 66G of the
Conveyancing Act 1919 (NSW).

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Topic 2 Old System Title & the Priority Rules
Learning Objectives
At the conclusion of this topic you should be able to:
(i) Describe the nature and significance of a deed at common law, and as
modified by statute;
(ii) Evaluate the features of Old System Title;
(iii) Identify property interests at common law as either legal or equitable;
(iv) Evaluate the common law priority rules developed to resolve competing
claims to interests in land; and
(v) Interpret the effect of section 184G of the Conveyancing Act 1919 (NSW) and
the deeds registration system on the common law priority rules.
Reading
 Butt Chapters 5, 7 & 19
 Hepburn Chapters 9 & 10 (the unit coordinator is aware that students were
asked to briefly scan Chapter 9 in topic 1)
 Jackman and Werren – ad hoc
 C M Sapideen et al, Real Property: Commentary and Materials (LawBook Co, 3rd
ed, 1990) 122 – 4 Re O’Byrne’s Estate (in e-reserve)
Topic content
2.1 Deeds at common law and under the Conveyancing Act 1919 (NSW)
2.2 The derivative nature of Old System Title
2.3 Legal and equitable interests in land
2.4 The common law priority rules
2.5 Registration legislation and section 184G of the Conveyancing Act 1919 (NSW)

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Topic 3 The Torrens Regime
Learning Objectives
At the conclusion of this topic you should be able to:
(i) Describe the nature of title pursuant to the Real Property Act 1900 (NSW) (‘Torrens
Title’) as a system of title by registration rather than derivation;
(ii) Analyse the concept of indefeasibility of title;
(iii) Evaluate the statutory exceptions to indefeasibility of title under the Real Property
Act 1900 (NSW) (‘RPA’) including fraud, and the enumerated exceptions pursuant
to s 42 of the RPA;
(iv) Outline the exception to indefeasibility arising from personal claims against the
registered proprietor (‘claims in personam exception’);
(v) Outline the effect of the period between settlement and registration;
(vi) Evaluate the status of unregistered interests in the Torrens regime and the nature
and function of caveats;
(vii) Describe the position of volunteers in the Torrens regime;
(viii) Describe the effect of subsequent overriding legislation; and
(ix) Evaluate the Assurance Fund established under the Real Property Act 1900 (NSW).
Reading
 Butt Chapter 20
 Hepburn Chapters 11 & 12
 Jackman and Werren – ad hoc
 J G Tooher, ‘Muddying the Torrens Waters with the Chancellor’s Foot?; Bahr v
Nicolay’ (1993) 1 Australian Property Law Journal 1 (in e-reserve)
 Samantha Hepburn, ‘Concepts of Equity and Indefeasibility in the Torrens System
of Land Registration’ (1993) 3 Australian Property Law Journal 41 (in e-reserve)
 Diane Skapinker and Christine Burke, ‘Practitioner Beware: Understanding the Law
of Caveats’ (2007) 45(10) Law Society Journal 53 (in e-reserve)
 Sasha Ivansoff, ‘A New Trap for Purchasers between Exchange and Completion’
(2007) 45(8) Law Society Journal 49 (in e-reserve)
 Law Society Journal (NSW) (eds), ‘Action to Protect Purchasers after Black v Garnock’
(2008) 46(8) Law Society Journal 6 (in e-reserve)

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 Anthony Lo Surdo and Jocelyn Williams, ‘Agency, Fraud and Defeasibility of Title:
When Can a Registered Interest in Land be Rendered Defeasible?’ (2015) March
2015 Law Society of NSW Journal 82 (full text available online through UNE library)
 Paul Watkins, ‘The Role of Title Insurance in a Torrens Title Jurisdiction’ (2015)
October 2015 Law Society of NSW Journal 84 (full text available online through UNE
library)

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Topic content
3.1 Introduction and history of Torrens Title legislation in Australia
3.2 The register, registrable dealings, and the registered proprietor
3.3 State guaranteed indefeasibility of title
3.4 Immediate indefeasibility vs. deferred indefeasibility
3.5 Section 42 Exceptions to indefeasibility: Fraud
3.6 Section 42 Exceptions to indefeasibility: Other registered estates or interests
3.7 Section 42 Exceptions to indefeasibility: Prior folios
3.8 Section 42 Exceptions to indefeasibility: Omitted or mis-described easements
3.9 Section 42 Exceptions to indefeasibility: Parcels wrongly described
3.10 Section 42 Exceptions to indefeasibility: Short term Tenancies
3.11 Exceptions to indefeasibility: Claims inpersonam
3.12 The impact of subsequent overriding legislation on indefeasibility of title
3.13 Section 43A: the period between settlement and registration
3.14 Caveats and unregistered interests
3.15 The position of volunteers in the Torrens regime
3.16 The Assurance Fund
3.17 Conversion of Old System Title to Torrens Title: Qualified & Limited Titles

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Topic 4 Mortgages
Learning Objectives
At the conclusion of this topic you should be able to:
(i) Describe the nature of a mortgage under Old System Title;
(ii) Describe the nature of a mortgage under the Real Property Act 1900 (NSW) as a
statutory charge;
(iii) Interpret the common law relating to the doctrine of ‘clogs on the equity of
redemption’;
(iv) Analyse the powers of a mortgagee in the event of a default;
(v) Evaluate the duties and obligations of a mortgagee in the event of a default; and
(vi) Outline the rules pertaining to tacking.
Reading
 Butt Chapter 18
 Hepburn Chapter 15
 Jackman and Werren – ad hoc
 Matthew Bransgrove, ‘What Can Solicitors Do to Reduce Mortgage Fraud?’ (2015)
September 2015 Law Society of NSW Journal 88 (full text available online through
UNE library)
Topic content
4.1 The elements of a mortgage, the equity of redemption and the equitable right to
redeem;
4.2 The creation of a legal mortgage under Old System Title;
4.3 The creation of a registered mortgage under the Real Property Act 1900 (NSW);
4.4 Equitable mortgages under Old System Title;
4.5 Unregistered mortgages under the Real Property Act 1900 (NSW);
4.6 Contrasts between Old System mortgages and Torrens mortgages;
4.7 Discharges of Mortgage;
4.8 Clogs on the equity of redemption: including postponement of the redemptive
right; collateral advantages; and other miscellaneous penalties and clogs;

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4.9 Right to redeem early and late redemptions
4.10 Unconscionable dealings
4.11 Remedies of a mortgagee including: right to sue on the personal covenant; the
right to possession; the right to lease; the right to appoint a receiver; and
foreclosure
4.12 The power of sale by the mortgagee in the event of default
4.13 Tacking and tabula in naufragio.

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