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Acquisition of property

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					  Means of acquiring
      property
TRANSFER              ORIGINAL
                      ACQUISITION


• Consensual        • Taking
  – sale              possession
  – gift i/v        • Fixtures
  – gift by will    • Manufacture/
• Non-                creation
  consensual
  – bankruptcy
  – compulsory
    acquisition
  – succession on
    death
    (intestacy
    legislation)
Conveyancing Act 1919   (NSW) s 23B

  (1) No assurance of land shall
  be valid to pass an interest at
  law unless made by deed.

      [section 7(1): “Assurance”
      includes a conveyance and a
      disposition made otherwise than
      by will …]


Exceptions:
• wills – s 7
• Torrens title land - s 23B(3)
• interest acquired by taking possession –
  s 23E(c)
• some leases – s 23B(2) and s 23D(2)
        What is a deed?
  Conveyancing Act 1919   (NSW) s 38

  (1)        Every deed … shall be
  signed as well as sealed, and shall be
  attested by at least one witness not
  being a party to the deed …

  (2)       Indenting shall not be
  necessary in any case.

  (3)        Every instrument
  expressed to be an indenture or a
  deed, or to be sealed, which is signed
  and attested in accordance with this
  section, shall be deemed to be
  sealed.

Delivery
 Stages in the sale of land
   - V(endor) selling to
       P(urchaser)

• Oral agreement

• Contract / exchange-
                 (P pays deposit)
        – investigation of V’s title (week 6)
        – P arranges finance

• Conveyance / settlement /
  completion
        – V executes deed
        – P pays purchase price
     Contract of sale of land

• V promises to transfer the interest (by
  deed) and P promises to pay

• Effect of contract: V becomes a
  trustee of the land for the benefit of P
  ie V is legal owner and P is the owner
  in equity - the “beneficial” (true)
  owner
    (“Equity deems as done that which ought
      to be done”)


•
            The trust

• “constructive” - means it arises
  by operation of law

• “qualified” - so, subject to
  agreement to the contrary:
  – V may remain in possession until
    completion
  – V is entitled to rents etc until
    completion (but must take
    reasonable care of the property)
  – If V gives possession to P before
    payment of full price, V retains an
    equitable lien over the land
When is the trust created, ie P’s
equitable interest in the land?
 When the contract is “specifically
 enforceable”, ie the remedy of
 specific performance would be
 available

1 The contract is valid
2 The requirements for SP are met
  – no adequate remedy at common law
  – P must be ready, willing and able to
    perform
  – any conditions precedent satisfied
  – no bar to the award of SP eg
    unconscionable conduct (Amadio) or
    undue influence by P, delay,
    acquiescence
continued

  – vendor has proved good title or
    purchaser has accepted the V’s
    title (week 6)
  – contract is in writing (Statute of
    Frauds eg s 54A(1) CA (NSW)
    or
    sufficient acts of part performance
    of the contract - s 54A(2)
• Maddison v Alderson test
  versus
• Steadman v Steadman