University : Western Sydney University UniLearnO is not sponsored or endorsed by this college or university.
Subject Code : 200012
Country : Australia
Assignment Task:

QUESTION 1 (30 marks)

Sirius was the registered proprietor of the freehold estate in fee simple of Grimmauld Place, a parcel of land governed by the Real Property Act 1900 (NSW). In January 2018, Sirius leases Grimmauld Place for a fixed term of 5 years to Mr Kreacher who immediately occupies the property. Mr Kreacher does not lodge a caveat in relation to his unregistered leasehold interest in the property.  

In February 2018, Sirius executes a transfer of his interest in Grimmauld Place to Harry for a purchase price of $1 million. Albus, Harry’s mentor, lends Harry half the purchase price (i.e. $500,000) secured by a written mortgage which Harry grants Albus over the property. Albus declines to take possession of the Certificate of Title or to register the mortgage as Harry is a former student of his whom he implicitly trusts. Harry is then recorded as the Registered Proprietor of Grimmauld Place although he never visits the property and is unaware of Mr Kreacher’s unregistered leasehold interest. Harry lives with his Uncle at another property ‘Privet Drive’ and only purchased Grimmauld Place as a potential investment.

The following month, in March 2018, Harry obtains a loan from Gringotts Bank of $300,000 (secured by a written mortgage granted by Harry in favour of Gringotts Bank over Grimmauld Place) to fund his addiction to gambling on sporting events. Gringotts Bank does not lodge a caveat in relation to their unregistered interest as a mortgagee.

In April 2018, desperate for additional cash, Harry enters into a written contract to sell Grimmauld Place to Ron for $500,000 (in relation to which Ron pays Harry a $50,000 deposit). However, prior to settlement Harry receives a better offer from Hermy (who was unaware of the prior exchange of contracts with Ron or of Albus’ interest) for $700,000. Harry then proceeds to enter into and complete a written contract of sale by executing a transfer of his interest in Grimmauld Place (properly stamped) in favour of Hermy and giving Hermy the Certificate of Title to Grimmauld Place. Hermy’s payment of the purchase price is financed by her personal savings of $70,000 and a loan of $630,000 from Elf Bank secured by a mortgage granted by Hermy in favour of Elf Bank over Grimmauld Place. Hermy also hands over the Certificate of Title to Elf Bank.

Hermy and Elf Bank then lodge their dealings for registration. Neither Ron nor Hermy nor Elf Bank are aware of Mr Kreacher’s unregistered leasehold interest as they do not bother to inspect the property. Hermy and Elf Bank are also unaware of Gringotts Bank’s unregistered mortgage.

Albus then becomes aware of these dealings and in May 2018 lodges a caveat on Grimmauld Place in relation to his unregistered interest as a mortgagee. 

Harry, still short of cash, then pretends to be his Uncle Vernon - the registered proprietor of a freehold estate in fee simple in ‘Privet Drive’ - and enters into and completes a contract for the sale of ‘Privet Drive’ purportedly from ‘Vernon’ to a purchaser, Malfoy, for $1.5 million giving Malfoy the Certificate of Title Harry has stolen from his Uncle’s room and the ostensibly executed transfer of title Harry has forged in exchange for receipt of the purchase price. Malfoy is entirely unaware of Harry’s fraudulent conduct and lodges his duly stamped and executed documents for registration. However, if Malfoy had personally sought to verify the authenticity of the identification documents presented by Harry purportedly as ‘Vernon’, the fraud would have become apparent.

Neither Malfoy’s interest in ‘Privet Drive’, nor Hermy and Elf Bank’s interests in ‘Grimmauld Place’, have been registered yet by the Registrar General. 

  1. Advise all relevant parties (except for Harry) on their legal position (including in relation to the priority accorded to their proprietary interests). (15 marks)

  2. Advise all relevant parties (except for Harry) on any differences to their legal position (including in relation to the priority accorded to their proprietary interests) in part (a) assuming that following settlement but prior to registration of her interest in Grimmauld Place Hermy becomes aware of the prior interests of Albus, Gringotts and Ron in the property and that Malfoy was always suspicious that he was not actually dealing with Vernon (i.e. the original registered proprietor of Privet Drive) - and did not enquire further for fear of learning the truth-  but nevertheless proceeded to execute the transfer and is actually now recorded as the registered proprietor of ‘Privet Drive’.  (10 marks)

  3. Advise all relevant parties (except for Harry) on any differences to their legal position (including in relation to the priority accorded to their proprietary interests) in part (a) assuming that Gringotts Bank actually lodges a caveat in relation to its unregistered interest as a mortgagee at the time that Harry grants it the mortgage over Grimmauld Place. (5 marks)

QUESTION 2 (25 marks)

El owns a property, ‘RivenDell’, that includes a palatial mansion where he lives and operates a hotel for guests seeking a homely retreat from the hectic pace of city life. 

El commissioned a large neon sign displaying the hotel’s name “The Homely House” to be mounted to the wall over the entrance to the mansion. 

El has also placed some beautiful outdoor furniture on the flat rooftop garden on top of the mansion but has used chains and padlocks to attach the furniture to the hotel itself to prevent any theft. 

A heavy freestanding heavy bronze life-size statue of El’s friend Alf has been placed in the courtyard of the mansion and El has also set up a trampoline for guests in the backyard. The trampoline is attached to the ground with hooks as a precaution to prevent it from being blown away in high winds.   

Each of the hotel rooms in “The Homely House” includes large oil paintings depicting scenes from an idyllic country manor life nailed to the walls. The paintings can only be mounted if nailed to the walls.

El has also installed a ducted air conditioning system with vents into each room and connects to a central unit located on the roof of the house. 

El’s property RivenDell is adjacent to another property “Loriyan” in which his neighbour Gladys had previously lived as the registered proprietor. The estate Loriyan comprises a timber plantation and a spacious manor (i.e. a large country house).

20 years ago Gladys had moved overseas to conduct some important business telling her neighbour El to ‘keep an eye’ on Loriyan while he was away. 

18 years ago El, noticing that Gladys had still not returned, El began to harvest timber from the timber plantation at Loriyan to supplement his income.

16 years ago, El, experiencing serious financial difficulty, surreptitiously began to store valuable goods in the empty double garage of the Manor at Loriyan as part of a self-storage business he established to earn additional income. El picked the locks to the garage to gain access at night time when he would covertly move goods in and out of the garage.

12 years ago, Gladys briefly drove past Loriyan (on the highway) on the way to visit El – not noticing that her double garage was being used for storage or that timber had been harvested - and gave El the keys to her property to use ‘for an emergency’ after which she returns overseas again. From this date onwards, unbeknownst to Gladys, El begins to lodge many tourists in the empty Manor House at Loriyan for short stays (1-2 days) throughout the summer season each year to further supplement his income (although the Manor house itself remains vacant for the other seasons each year).

11 years and 364 days after Gladys first gave El the keys to her property to use ‘for an emergency’ (i.e. yesterday), Gladys returns from overseas and thanks El for keeping an eye on Loriyan and indicates that she will move back into the house in a couple of weeks (although El still retains the only set of keys to Loriyan).

  1. El has decided to retire and sells his estate in ‘RivenDell’ to his protégé Andrew. The contract for sale was silent regarding the proprietary interests of parties in relation to the neon sign, outdoor furniture, statute of Alf, trampoline, air conditioning units, and the oil paintings in ‘RivenDell’. Advise El regarding his legal position regarding these items. (15 marks)

  2. Advise El regarding his legal position in relation to ‘Loriyan’.

 

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