Court ordervcat types of orders that vcat may make

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- Court order/VCAT Types of Orders that VCAT may make orders - S228(2)(a) – sell and divide the property. - VCAT is obliged to consider, where appropriate, physical division of the land (228(2)(b))– having regard to an factors that it thinks is relevant including: use of the land (229(2)); practicality of physical division; any unique attachments between one or more co-owner and the land. - Can also order a particular mode of sale including minimum/reserve price and can order that it be done within a specific time frame. - Can order the registrar to amend the register in accordance with its orders. - 228(2)(c) - Can order that it varied the proportion that each is entitled to. Mortgages - A JT can grant a torrens mortgage and it is a mere encumbrance which does not sever the tenancy. The JT is not carving an interest out of the fee simple. (Lyons v Lyons) (In GLL there is a severance where a mortgage is created) Leases – ( Unger ) If a JT leases their interest this affects a suspension of the JT for the term of the lease. The JT is converted to a TIC for that time. This happens because the lessee should be assured that the lease can continue even if one of the co-owner dies. During the term of the lease both the lessee and the non-leasing co-owner have a right to possession and use of the land. Neither can sue the other for trespass. The non-leasing co-owner might attempt to lease the land out too. The non-leasing co-owner can seek a portion of the rents under S28 (VCAT – part 4 of the PLA). If the lease expires the JT revives and the right of survivorship is back. o So tenant shares EP with one JT. o If one co-owner dies the lease will continue for its full term. 18
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o Upon the death of A the leasehold reversion is extinguished. o If A dies A’s estate can continue to collect the rent and B is able to claim a proportion of that. TOPIC 3: Introduction to Enforceability When competing interests are created through an earlier and later act. A sells to B, but before the settlement A lease to C. Who can occupy the land? Who gets possession? Security of title vs security of transaction – priority rules generally favour one of the two. This is a policy choice. Security of title > elevates as the most important aim the protection of the person who already holds title. That person is the “true owner”. This policy approach demands sacrifice of the interests that are subsequently acquired. The later interest might even have been acquired in good faith/bona fide. Security of transaction > elevates as the most important thing the need to protect innocent purchasers. Tries to protect the subsequent interest holder provided that they are innocent. Legal vs Legal: a person cannot pass good title if they do not have it themselves. This favours the earlier legal interest holder.
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