Recap in personum recognises that indefeasibility

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Recap: In personum recognises that indefeasibility does not affect the personal obligations of a RP. Depends on finding a cause of action against the person whose title you seek to defeat. Action may arise before/after registration. In law/equity. Not all causes of actions are acceptable: o Breaches of trust ( Bhar v Nicolai ) – express, resulting and constructive are all good. o Other breaches of fiduciary duty (Gosper) o Deceit (tort) (see case) 32
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o Negligence (Grigitch considered) – do we need unsconscionability? It seems that you will PROBABLY need some sort of unsconscionability. o S52 considered (does not include unsconscionability). o Fergusson o Garcia v NAB – a married woman guarantees her husband’s debts and gives a mortgage over the family home. Held that the wife could not be held liable under the guarantee because it would be unconscionable to enforce the guarantee where there was no benefit to her, wife trusts husband in business matters and the bank had not made sure that the wife had received independent legal advice. Paramount Interests S42(2) (a)-(f) Prevail over the RPs interests because the RP takes their interest subject to these interests. S42(2)(a) Conditions that fall within the Crown Grant of the land. S42(2)(b) Adverse possession – any rights subsisting under any AP of the land. So time does not stop running when a new registration occurs. If the AP has been there for 10 years (15 year limit) new RP can take an action for possession to regain possession of the land. S42(2)(c) Public right of way. Planning authorities may make it necessary to make the property a public right of way. S42(2)(d) Easements – any easements how so ever acquired. Broad enough to capture equitable easements. Implied easements or easements by prescription. People do not bother to register easements because there is no incentive. The purchaser cannot discover the existence of unregistered easements. Even inspection of the land will not reveal it. S42(2)(e) – how does this sit with a clause for vacant possession? An interest of a tenant in possession but not an option to purchase will be paramount. A lease for less than 3 years cannot be registered. Tenant has been widely construed. Includes life tenants. A tenant under an agreement to lease. Any lease will be protected by this exception. 33
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Scope: Does not cover options to purchase the land. Option to renew the lease seems to be covered by the exception. An equity of rectification ( Downie v Lockwood ) an RP entered into a tenancy agreement for 5 years. The lesee was to pay the rates and insurance. The tenancy agreement was not registered. Defendants purchased the land from the executors. The lessees brought an action seeking rectification of the tenancy agreement. New RPs argued that rectification was not covered by S42(2)(e) because it is not part of the leasehold estate. The exception gives protection to any equitable interest to which occupation is incidental. Smith J reasons that there is
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