Part A. 1.
In order to differentiate the Old system of title and the ‘Torrens’ system of title, one needs to go to the origins. Initially there were no provisions land transaction recordings in NSW colony. Particulars of sale used to be written on the back of the ownership and land grant used to change without evidence of document. In 1802, the first recorded registrations forming the first book of the ‘Old Register ’took place when a register was provided by the Judge Advocate and parties got invited to place their dealings on record (Lpi, 2016). On 16 November 1825, the first Registration of Deeds Act became operational which launched a special form of memorial and the canon that any Deed or instrument executed in good faith and for valuable consideration should be prioritised according to date of registration and not of execution. Hence the ‘Vendors Index’ got introduced.
The Old Systems Records comprises of the following registers:
Grant Registers: They were initially grouped in number of series like as Land Purchases, Special Grants, Town Purchases etc.( 1792 to 31.12.1862)
The Old Register: They comprised 9 volumes in date wise order and 1 index. It held many entries not related to land transactions.
Vendors Index : All registrations operative index is vendors index in the General and entries are made under the names of all people creating an interest.
Purchasers Index : Individuals acquiring interest in land is purchasers index, collected from entries recorded in the Vendors Index.
Miscellaneous Register: It contains different types of transactions. They contain Powers of Attorney, Appointments of Receivers and Changes of Name.
Index to Instruments Evidencing Change of Name (1875 to 1967)
Guidelines for preparing dealings and Old System instruments in order to registration in the General Register of Deeds must be followed when producing:
- Real Property Act instruments and dealings.
- Old System registration copies instruments and deeds registration copies (Burke and Mead, 2013)
- Old System instruments and deeds originals where LPI is to prepare the registration copy
Robert Richard Torrens designed the Torrens title system was introduced to NSW with the start of the Real Property Act on 1st January 1863.It was a system on the method of insuring shipping. A single register was used for each land property and recorded details that affects land such as easements, caveats, mortgages etc.
The Torrens Title or Real Property Register is divided as:
- Old form bound Register (1863 to 1961) Vol 1 to 8497
- New form loose leaf Register(1961-)
- Integrated Titling System/Automated Land Titles System (31.10.1983 to 14/5/1999) (O'Connor, 2003).
- Torrens Title Purchaser’s Index (Lpi, 2015)
When 2 or more people get interested in lands with the help of transfer, application, mortgage, lease, or charge that, that transaction must mention if the people are to be held as tenants in common or joint tenants.
In case of joint tenancy, interest of dead joint tenant passes to the surviving joint tenant(s). In case of Tenants in Common, they do not possess interest in land and on death of either of them, on the basis of terms of their will, their interest passes.
To create joint tenancy there should be:
Time unity: Joint owners require getting their interest at same time in the property (aussielegal, 2012).
Title unity: In the same transaction joint owners are required to receive their interest.
Interest unity: Joint owners required to have similar interests in extent, nature and duration.
Possession of unity: Equal right to possession is possessed by each joint owner of every part and to whole property, but no exclusive possession of any part.
Tenancy in Common does not have unity of interest, which is that unequal shares can be held by them. Hence shares of Tenants in Common must always be shown (Kai-xiang, et al., 2010).
Practically the main difference between Joint tenancy and Tenancy in Common is about survivorship rights. In case of joint tenancy, survivorship rights exist. The right of survivorship happens where only the tenant (s) who is alive will continue to keep legal claim over the property. However, when property is held as Tenants in Common, will of the deceased person acts as the determinant as to who will possess the property. Hence the property of the dead person will be only distributed to those mentioned/ nominated by the deceased.
The Native Title Act 1993 was passed by the Australian Government in order to provide recognition to national system and protection of the native title and for its co- existence with the land management system of the nation (Austlii, 2014). It commenced functioning on January 1st, 1994. The legislation strived to make concise form of the Mabo decision and strategies execution in order to enhance the process of recognition of the native title. The National Native Title Tribunal was established by the act for registering, hearing and determining native title claims.
Native titles exist under the Act when the following requirements are fulfilled:
- The interests and rights are followed according to traditional customs and laws and they are continuously observed and acknowledged by native Australians (Sutton, 2006).
- Due to adherence of those customs and laws, the relevant native Australians have link with waters or land.
- The indigenous title interests and rights are recognised by the Australian common law.
Native title to a specific land can be extinguished if the tribe or group who possesses native title loses association with the land. It means that since the Crown first declared sovereignty- in regards of New South Wales, 1788, connection necessarily have been retained. In order to claim native title to land, one has to show descendancy from Aborigines whose land it was in 1788 and that they have maintained connection over generations.
Tenancy laws in New South Wales are majorly governed by Boarding Houses Act, 2012 and Residential Tenancies Act, 2010 (Tenantsunion, 2012). In the present case, Andrew got lease of a premise located in an arcade in Rowville Flats, a town in NSW. His intention was to carry out business in the said premise since it faced the streets and it would attract potential clients His main profession was that of a physiotherapist and exercise instructor. He had taken lease for 5 years from April 1, 2015. Kathy was the landlady of the arcade. Now, certain repairs and alterations were meted to the arcade in August 2015, which had a detrimental impact on Andrew’s business. Since 3 weeks scaffoldings were erected in front of the arcade. The front entrance the mall was blocked by it and only allowed entr?e through IXL supermarket located at the back of the mall. The scaffolding blocked the windows to Andrew’s premises and also the sign advertising his physiotherapy practise. The noises created by drilling and hammering emitted sounds which made his practice very difficult. Hence his efforts remained futile since he could not prosper in his endeavour. He complained this fact to Kathy regarding the structural changes which resulted in jeopardizing his business (Fitzpatrick et al., 2014). Kathy in turn scoffed him for being oversensitive and reassured him that the repairs would not ensue for a long period. Andrew’s demands from Kathy included carpet replacement in his premises which was ragged, substitution of a light that got damaged by a ball that occurred in his exercise class, replacement of damaged tiles and repair of a trickling tap in the bathroom integrated in the property leased to him.
Kathy’s contention was that all the repairs were to be borne by Andrew alone. She asserted that it was Andrew’s responsibility to ensure that the leased premises were re- painted so that the overall look of the arcade did not diminish. The expenses were too great and burdensome for Andrew to carry, due to which he took the decision to give up the business. He decided to re- lease the said premises to a lady named Courtney. She was willing in continuing the exercise classes and selling of the exercise equipments and health products to people, that was present in the leased premises. However, Kathy denied property for assigning the lease to Courtney, the reason being she was unwilling of the present of another retail shop in the mall. According to the lease agreement entered upon between Andrew and Kathy, Andrew was prohibited from assigning whole or part of his interest under the agreement without prior written permission of Kathy.
Now, when we delve into the legal issues involved in this case, we have to remember that New South Wales’ tenancy rules rest upon Boarding Houses Act, 2012 and Residential Tenancies Act, 2010 (Tenants, 2011). It is known that a lease agreement was entered between Andrew and Kathy. However none of the acts acknowledge premises leased for purposes related to trade, profession, business or agriculture. Since Andrew had leased the premises with intent to carry on his business of physiotherapy and exercise classes, he is not entitled to rights enjoyed by a tenant given by both the acts. If he was using the premises let to him for residential purposes, he would be entitled to damages for loss occurred to the premises by the landlord. If the landlord refused, he could have applied to the New South Wales Civil and Administrative Tribunal for damages (Ncat, 2014). He could have proved that the damages caused to the premises were result of external elements and he had taken reasonable care of the said premises. He could have received compensation up to $ 15000 from the Tribunal. However legally he is debarred from claiming any compensation from Kathy since he is not covered under the ambit of either of the tenancy laws. Kathy can say that, since his purpose of lease is not a recognised one under the tenancy laws, she is not obliged to compensate him. He has to make alternate arrangements in terms of funds for repair. In short, he has no option but to bear the cost of repair on his own since the tenancy laws do not support his kind of lease purpose. He is also prohibited from subletting or assigning the lease to any other person (Sherry, 2009). Neither has he been approved by the tenancy laws to be a valid lessee nor does even the lessor refuse to agree on subletting the premises. He has to comply by the rules laid down in the agreement or else Kathy has the right to approach the Tribunal for a restraint order. This may result in eviction of Andrew from the premises and he might be compelled by the Tribunal to pay damages to Kathy for the attempt. Neither can he stop payment of rent which will automatically make him eligible for eviction (Tenants, 2014). He is liable to keep the premises in good shape and ensure repair and maintenance out of his own pocket. Kathy, on the other hand is in an advantageous position. She is entitled to get rent on time, be it monthly, bi-monthly, quarterly or yearly. Any failure on part of Andrew, will entitle Kathy to sue him. Moreover, she is not obliged by law to compensate him for damages incurred due to any reasons. It is completely dependent on her free will. She is free to evict him from the premises on any ground and he is not eligible to retaliate in a legal manner. The entire lease is based on a mutual consideration. The tenancy laws of NSW do not encompass his purpose of tenancy. He is morally liable to bear all encumbrances and ensure that the work done by him is legally valid. He has to ensure that the premises are kept safe from external dangers and damages and in case something happens, to ensure that damages are repaired to the best possible extent (Easthope, et al., 2009). He is not eligible to sublet the premises to any third party without Kathy’s consent. She is free to revoke the tenancy on violation of this ground.
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