Property Law
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There is a dearth of authority in Victoria concerning the principles that apply in determining claims for the partition of property under Part IV of the Property Law Act 1958. In broad terms Part IV permits a co-owner of land or goods to apply for orders in respect of that land or those goods. VCAT…
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It has long been a vexed question whether a vendor of land needs to include details of a lease affecting the land in the vendor statement provided to a purchaser pursuant to s.32 of the Sale of Land Act 1962. Section 32 requires the disclosure of, among other things, mortgages and charges affecting the land…
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Lawyers acting for landlords of non-retail premises where the proposed lease term exceeds 3 years need to seriously consider whether to register the lease. This is one of the consequences of the Court of Appeal’s decision in Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106. If the lease is not registered, the…
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Mediations at which parties are unrepresented or not represented by lawyers are fraught with risk. Even with legal representation mediations are stressful, particularly where the mediation is only fixed for a half day and there is pressure to avoid long winded discussions about the facts. Experienced mediators invariably offer unrepresented parties an adjournment so that legal advice…
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The Landlord and Tenanct Act 1936 will be repealed effective 1 September 2012: see s.236 of the Australian Consumer Law and Fair Trading Act 2012 and the Victorian Government Gazette, No S291, 28 August 2012. Part 4.2 of ACLFT now governs a landlord’s rights and obligations concerning uncollected goods left on leased premises. While Part V…
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I have had a number of queries about a recent post concerning N.C.Reid & Co v Pencarl Pty Ltd [2011] VCAT 2241. In Reid Judge O’Neill held that before re-entering leased premises the landlord did not have to serve a notice that complied with s.146 of the Property Law Act 1958. The lease permitted the landlord to re-enter if the guarantor…
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It has long been a vexed question whether a liquidator can disclaim a lease with the effect of extinguishing the tenant’s leasehold estate or interest in the land? In a major victory for tenants Justice Davies has answered that question with a resounding “no”. In In the Matter of Willmott Forests Ltd (in liquidation) [2012] VSC 29 the…
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The High Court recently considered s37A of the Conveyancing Act 1919 (NSW) which is the New South Wales equivalent of s172(1) of the Property Law Act 1958. Section 172(1) provides that: “Save as provided in this section, every alienation of property made, whether before or after the commencement of this Act, with intent to defraud creditors,…
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In Stone v Leonardis [2011] SASC 153 the Supreme Court of South Australia held at [36] that in principle a registered proprietor could lodge a caveat on title to protect its own interests. In Stone the registered proprietor lodged a caveat preventing a mortgagee of the land settling on a contract of sale. The registered proprietor’s…
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When property is purchased in joint names and one party dies the question of whether the proprietors held the land as joint tenants or tenants in common invariably arises. The answer is significant because if the parties were joint tenants the whole of the land remains with the surviving joint tenant. The law concerning joint tenancies…
