Post on 29-Jul-2015
Priorities
Creation and Enforcement of Proprietary Interests
Recall foundation concepts
Old system title = common law,
not statute
Interests in land can be
legal or equitable
What sort of interest?
writing
grant
signed If not…
Agt to grant?
Part performance?
Resolving competing interests
equitable legal
equitable legal
land
LEGAL V LEGALFirst type of competition
legal
legal
land
Can you sell what you do not own?
PRIOR LEGAL V SUBSEQUENT EQUITABLE
Second type of competition
legal
equitable
land
Where the equities
are equal, the law prevails
1. Except fraud
2. Except gross negligence
3. Unless agent exceeds authority
4. Unless represents equitable interest to
3rd party who relies
on it
EQUITABLE V LEGALThird type of competition
equitable legal
land
Legal interest prevails where acquired by ‘purchaser’:
Bona fide For value Without notice
Notice: actual, constructive, implied
EQUITABLE V EQUITABLEFourth type of competition
equitable
equitable
land
Where the equities are equal, the first in time prevails… Principle of last resort.
Rice v Rice
To see if the equities are equal, examine the conduct of the
parties
Examples of postponing conduct
Fail to keep title deeds
Carelessness
Conduct allows
mistaken belief
If later holder has notice of earlier interest
Mere equity v equitable interest
Latec Investments v Hotel Terrigal
A lawyer’s view of Latec
Equity takes into account all the conduct of all the parties
Review
What kind of interests?
Order of creation?
Which competition?
What is the law?