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CHAPTER 33 C H A P T E R C O N T E N T S Property versus possession Land Goods Distinguish real property and personal property What is personal property? Personal property used as a security What is real property? What is the extent of land? Surface Substratum (subsoil) Airspace Interests in land Fee simple Leasehold estate Life estate Easements and restrictive covenants Joint ownership Joint tenancy Tenants in common Methods by which land ownership is established Native title rights Common law title The Torrens system Strata Title What is a mortgage? Legal mortgages Equitable mortgages Mortgagor’s right to deal with the property Remedies of the mortgagee Right to sue on personal covenants Right to appoint a receiver Foreclosure Power of sale Licence and lease distinguished Licence Lease Classification according to duration Leases of fixed duration Periodic tenancies Tenancies at will Tenancy at sufferance Terms of agreement for lease Terms of a leasing contract Can a lease be assigned (transferred)? Termination of leases and tenancies Termination by time Termination by an option Termination by surrender Forfeiture Notice to quit Can the landlord recover possession of the premises? Residential tenancies legislation What is the purpose of residential tenancies legislation? Tenancy documents Common requirements imposed on the landlord What are the duties of the tenant? How can tenancy agreements be terminated? Dispute settlement Retail tenancies legislation Typical provisions of retail tenancies legislation PROPERTY AND MORTGAGES
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K E Y T E R M S An understanding of the following terms will help you to better understand the material in this chapter. Co-ownership: joint ownership of property. Fee simple: the most extensive interest in land. Referred to colloquially as ‘ownership’ of land. There are no restrictions on the ways in which the holder of the fee simple may deal with the land. Fee simple: a freehold estate and the most extensive interest in land. Joint tenancy: a form of co-ownership where separate equal and undivided rights exist between the parties, but they appear as a single owner as against the rest of the world. The distinguishing elements of a joint tenancy are the ‘four unities’ and the right of survivorship. Lease: a contract granting exclusive possession of property to a person other than the owner for a certain period of time (referred to as the ‘term’) in return for payment of money (referred to as ‘rent’). In contrast to a lease, a licence generally doesn’t grant exclusive possession of the subject property and is determinable at any time by either party. Mortgage: a contract transferring an interest in property as security for the repayment of a debt. On default a mortgagee typically has recourse to the property and the right to re-take possession, sell the property and apply the proceeds against the debt. Various pieces of legislation (such as the Consumer Credit Code) affect the rights and obligations of mortgagors and mortgagees.
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