Understanding Transfer Of Land Act 1958 And Its Legal Provisions

The Provisions related to Registered Proprietorship and Encumbrances

It has been provided by section 42 of the Transfer of land Act 1958 that Irrespective of the presence of any person of any interest or estate which may be held or have priority in relation to Act, the registered proprietor would hold the land along with the encumbrances recorded on it except where there is any kind of fraud. Further, it has been stated by subsection to that irrespective of anything in the present land which is present in a folio of register has to be subjected to any land tax or unpaid rates or any other kind of charges which can be identified with respect to a certificate issued under the provisions of section 229 of the local government act 1989 along with section 158 of the water act 1989.

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It also includes any other kind of legislation which has been expressly provided for the purpose of the paragraph through the Governor in Council published by the government gazette. The facts of the situation provide that an overdue late notice has been forwarded to a new owner of property. The notice is in relation to water tax which is covered under the water act 1989. It has been further provided that during the settlement overdue rates of the previous year at not been adjusted. The application of section 42 in this situation would mean that as there is no fraud involved and there is only a mistake by which the overdue amount has not been added the current property owner would have to pay the tax arising out of the property as he is the registered owner.

There is no obligation on the part of Melbourne water to look for the vendor as under the operations of section 41 of the act certificate of registration is the supreme evidence of title. In addition under section 43 any person who is dealing with the registered proprietor will not be affected by a notice.

B

Under the rules of section 40 it is provided that until and unless an instrument has been registered it will not be able to vary create extinguish or pass any interest encumbrance or state in or over any land subjected to the provisions of this act. However these things would easily be possible when an instrument has been registered under the provisions of this act. In addition it has been provided under section 41 of the legislation that no folio of the registered with respect to the earth would be the feasible or impeached because of or in relation to any irregularities or informality in application or instrument or in the process prior to the establishment of the Polio call recording on it.

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Rules around Registration of Instruments

every folio has to be received in all the courts as a proof of specific information in it and every recording of the contents in the register has to be Supreme and conclusive proof that the person who has been identified in the Polio is the proprietor all owner or has interest and power to dispose or appoint the land which has been provided for in the folio. In the present situation the issue is that how would the tax department officer prove that certain land belongs to a taxpayer. In the light of section 40 and 41 it can be stated that the officer only needs to show the folio of registered before the court which has to consider it as a Supreme and conclusive evidence that the person who has been named in the folio is the owner of the land. This person would have all powers to dispose or do anything in a legal manner with the land and even if there have been any informality or irregularities with the registration.

C

It has been provided by section 42 of the transfer of land Act 1958 that Irrespective of the presence of any person of any interest or estate which may be held or have priority in relation to Act, the registered proprietor would hold the land along with the encumbrances recorded on it except where there is any kind of fraud. Further it has been stated by subsection to that irrespective of anything in the present land which is present in a folio of register has to be subjected to the interest of a tenant who is in possession of the land. In the present situation the issue is that whether a business operator who has rented a shop premises should be concerned about the fact that the owner of the shop has given him notice that the property would be subjected to sale.

It has been clearly stated through the operations of subsection 42(2) (e) that the interest excluding any option of purchasing with respect to a tenant in the under the landlordship of the new buyer. Therefore in the present situation a business operator who has rented a shop premises should not be concerned about the fact that the owner of the shop is given in notice that the property would be subjected to sale as his interest protected under the section. When the sale of the land in which the shop is located would take place all rights of the land would be passed to the new buyer. Along with the rights to the land or liabilities or encumbrances on the land would also pass to the new buyer. Therefore in the present situation the tenant would be protected under s 42 of the Act

Restrictive Covenants and their Use in Land Development

Answer 10

Restrictive Convent is a form of written agreement or private treaty between landowners through restrictions in relation to how the land is to be developed and used are put in place. In case there is an application to vary or remove the restrictive Convent the planning commission can be involved. This is not created or enforced by the government. The restrictive Convent limits the development of land in a way so that benefit of other land can be ensured. No legislative rules have been made in relation to the type of restrictive convent which can be added into a contract.

These restrictive appointments are contractual terms which can be legally enforced in the court of law. In the present situation the term that the house cannot be extended beyond two stories is a restrictive Convent. Therefore Patrick and Anna are contractually bound to abide by the convent. However they have the right to very or change the Convent with a mutual agreement with owners of the beneficial land. Through this way they would be able to remove the Convent and build an additional floor according to their wish after taking possession of the property.

Answer 11

There is no Express legislation which sets out the amount of deposit which has to be made in relation to a sale of property. In general 10% of the value of purchase is provided as a deposit by the buyer. Under the provisions of common law it is long recognise that a deposit which is provided by the buyer in relation to that time at which the contract of sale is created is an earnest of the transaction. This means that it signifies to the vendor that by paying the part payment the purchaser is serious about purchasing the property and in case the purchaser would not be able to go forward with the transaction he would not be entitled to the deposit made by him.

Therefore the deposit has two characteristics. The first characteristic is that in case the transaction is completed the deposit would be adjusted as a part of the total money to be paid. The second characteristic is that the purchaser signifies his seriousness in relation to the transaction. Therefore it is a custom and a common law rule to provide deposit in relation to a contract for sale. However it is not mandatory to provide deposit under contract law to form a valid contract.

Deposit Requirements for Property Sales

Answer 15

It is our duty as agents to ensure that we are in the best interest of the client. This duty is not only provided by the code of conduct regulations and Organisation policy but also embedded in common law through the principles of fiduciary Duty. Conflict of interest position is created when the personal interest or interest of any third party comes between the agent and the interest of the client. in this situation it is the first and foremost responsibility of the agent to ensure that priority is always given to the interest of the client rather than any kind of personal interest or any interest or benefit of a third party.

In an organisation the policy states that we need to immediately report any conflict of interest position to the client as well as our supervisor. In this situation it is our duty to act in good faith only when the client has been notified about the conflict of interest situation and is still willing us to be there agents. In our organisation if there is a conflict of interest position which potentially may be created between an agent and client the agent is changed or the client is informed expressly about the situation. The agent is notified to take extra care that the interest of the client is ensured.

Answer 27

Mortgage is an encumbrance on the property. In case there is any mortgage on the property the bank which has provided the mortgage is entitled to hold a certificate of title rather than it being in the position of the property owner. Any institution which has provided the mortgage which is generally a bank would be usually identified on the title. In case a person is buying a property it is important for the vendor to bring the mortgage to an end prior to the settlement or else it may cause significant delay with respect to the process.

Without the mortgage being discharged the Purchaser would not be able to acquire total title of the property which would still be subjected to mortgage. It is important to know the mortgage price before purchasing the property because the purchaser may need to discharge the mortgage on behalf of the vendor before the final settlement takes place. The amount of mortgage which has been taken would also help in the identification of the interest of the lending institution with respect to the property. The vendor is under the legal obligation under Section 32 of the sale of land act to disclose any mortgage on a property to the purchaser.

Answer 30

Under Section 32 of the sale of land act it is the of obligation of the vendor to ensure that up to date information is provided to the purchaser in relation to the property as asked under the provisions. In order to ensure that this information is up to date a written confirmation can be obtained from the vendor as well as investigation can be carried out with respect to the title of the property on personal level by the purchaser. It is the responsibility of the property owner to provide relevant and accurate information with respect to the contract of sale to the purchaser under the applications of section 32.

In case information provided under Section 32 is not relevant and inaccurate a contract can become non compliant. for example if the vendor provides in accurate information in relation to a mortgage imposed on the property the contract of sale would become non compliant.The purchaser would be able to get out of the contract of sale without any loss where inaccurate information has been provided by the vendor. The vendor would additionally not be able to impose such contract on the purchaser.