Assignment Task
Compulsory Assignment
The facts of this question begin in 2013 (prior to the introduction of EConveyancing). Peter was the registered proprietor of “Bluebells” a property of over 100 acres in Avoca Beach on the Central Coast of New South Wales. Peter did not live on the property. The property was held under the provisions of the Real Property Act 1900. The property was subject to an easement that ran the length of one boundary. The easement was for the benefit of the adjoining land (owned by Geoff). While it was registered as a “right of carriageway” the wording of the instrument referenced on the register granted exclusive ownership of the land 4 metres above the right of way and gave the dominant tenement holder the right to pull down or erect structures in that space. Peter also had an agreement with another neighbour Thomas to allow him to rent the cabin that was built on the land. The agreement was evidenced in a series of emails between Peter and Thomas, and it allowed Thomas to occupy the cabin for 3 years with an option for a further 3 years for $300 a week (which was roughly equivalent to market rent). Nothing was ever signed by the parties and no lease was registered. Peter was over 80 years old and was convinced by his sons Jamie and Cameron that he needed to move into supported accommodation. Peter started to suffer cognitive decline after he moved into the residential care. He no longer had capacity to enter into agreements. Cameron, via an elaborate and well-planned fraud, borrowed money from Eastpac Bank, and used his father’s land as security. The mortgage dealing was forged. The documents and certificate of title were provided to Eastpac at a meeting at the local Avoca branch. A junior loan officer, William, who was very inexperienced and overwhelmed on the day as senior staff were “off sick”, accepted the documents without the required identification checks. The mortgage was registered and the advance was paid into an account controlled by Cameron.
Questions
(a) Is Jamie’s interest subject to the easement benefitting Geoff’s land?
(b) Is Jamie’s interest subject to the lease to Thomas?
(c) Would your answer to (b) change if Jamie had, prior to becoming registered, made a promise to Thomas that he would honour any agreement made between Thomas and Peter?
(d) Is Jamie’s interest subject to the mortgage to Eastpac?
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