4 in williams v hensman severance resulted from the

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4. In Williams v Hensman , severance resulted from the execution of documents by co- owners indicating that their shares in a common fund were to be treated as separate by the manner of payment. SEVERANCE OTHER THAN BY AN ACT OF A JT 1. BANKRUPTCY – vests in the trustee in bankruptcy in equity. Will be severed at law when the trustee becomes the RP 2. HOMICIDE – shouldn’t be able to benefit for your own crime. At LAW, murderer gets the interest. BUT At EQUITY, murderer holds interest on trust for murdered person, which then goes to the estate of murdered person. EQUITY wins!!! 3. COURT ORDER – can’t just order that a JT be severed. BUT, can make orders that are INCONSISTENT with a JT. Family Law Act that divides up the assets. If mortgagor defaults, bank can sell their “share”, which is counter to a JT. Court orders you get a certain amount of shares in the property. TERMINATION OF CO-OWNERSHIP BY COURT ORDER 1. Spouses can seek order from Family court under s 79 Family Law Act 1975 (Cth) 2. ‘Domestic partners’ can seek a court order under Property Law Act, Part IX (see topic 1, RG p 9) 3. In default of those provisions, co-owners can apply to Vic Civil and Administrative Tribunal (VCAT) under Property Law Act, Part IV, Div 2. 2.6 PROCEEDINGS FOR DIVISION AND SALE UNDER PLA PART 4, DIV 2 1. S 225: A co-owner of land or goods may apply to VCAT for an order for sale and/or the physical division of land and goods among the co-owners. 2. S 228: VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land or goods occurs. 3. S 229: Sale and division of proceeds is preferred to physical division (is easier, AND more convenient. In Guimelli, would be damaging to have forced the family to remain living together in close proximity, especially after they couldn’t reconcile the situation). 4. S 230 VCAT may divide co-owned land in proportions that differ from the co-owners’ entitlements, and may order compensation for any discrepancy. 16
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17 TOPIC 3 – AN INTRO TO THE ENFORCEABILITY OF PROPERTY INTERESTS TWO SYSTEMS OF LAND TITLE IN VIC 1. Unregistered or ‘general law’ land (>2% of land parcels in Vic) 2. Torrens System land ie land registered under Transfer of Land Act 3. Policy is to register all unregistered land parcels as soon as possible WHY DO INTERESTS CONFLICT? 1. Property rights are enforceable in rem ie against persons other than the grantor. 2. Multiple property rights can exist concurrently in the same land. 3. Conflicts may arise where a purchaser didn’t know about a prior interest. PRIORITY RULE AS BETWEEN REGISTERED INTERESTS 1. The “priority” here is that the FIRST mortgagee gets his/her money back FIRST. 2. TLA s 34(1) 3. “[E]very instrument lodged for registration shall be registered in the order in which …it is lodged… and instruments purporting to affect the same estate or interest shall be entitled to priority as between themselves according to order of lodgment for registration” PRIORITY RULES – GENERAL LAW 1.
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