3 s422c public rights of way 4 s422d easements wa

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3. s42(2)(c) Public rights of way 4. s42(2)(d) Easements WA agrees with Vic on this, but query if this is fair on RP!!! 5. s42(2)(e) The Interest (excluding the option to purchase) of a tenant in possession covers business tenancies, residential ones, basically means RP has to check the nature of the occupation, particularly relevant in cases of rural land. DOWNIE V LOCKWOOD [1965] VR 257 1. Under an unregistered written lease from T (LL) to D (T). LL’s copy of the tenancy agreement differed from tenant’s regarding tenant’s covenant to pay rates and insurance. Not in tenant’s copy but was in LL’s copy. LL’s executor sold the land to the Lockwoods. 2. Question arose as to who had to pay the rates and insurance: L or D? 3. HELD : L required to pay rates and insurance. 4. Was an equitable interest which was referable to a tenancy, so enforceable against the Lockwoods as an interest of a tenant in possession per s 42(2)(e) 5. D (T) had an equitable interest that was not subject to the covenant to pay rates and insurance. 6. “Any person in actual occupation of the land obtains as against any inconsistent reg dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of some sort” Smith J. 34
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35 5.3 PARAMOUNT INTERESTS 1. s42(2)(d) Any unpaid land taxes, rates or other charges REGISTRAR’S POWER OF CORRECTION 1. S 103(2) Registrar has discretion to correct errors in the register. This is treated as a ‘slip rule’ only ( Frazer v Walker ) 2. No provision allows Registrar to correct an entry procured by fraud. 3. S 103(1) Registrar must make amendment to register if directed by a court 4. S 106(e); Registrar’s power to cancel titles or folios, to create new ones and to amend register – Court has held this section should ONLY apply where there has been definite fraud. INCONSISTENT LEGISLATION 1. TLA s 42 (indefeasibility provision) can be overridden by a later statute, but only if the two statutes are inconsistent. 2. Distinguish between a later statute which destroys a registered interest, or create a new interest that is effective without registration (as in Calabro). This will override s 42. A statute which invalidates a registrable instrument which contravenes the requirements of the statute (eg Breskvar). This does not conflict with with s 42 TLA, because registration without fraud vests indefeasible title even if the instrument is void. CALABRO V BAYSIDE CC 1. A strip of land marked as a road on plan was included in C’s registered title. The road was a ‘highway’ at common law. 2. Local Government Act 1989, s 203(2) provided: “A public highway vests in fee simple in the Council of the municipal district in which it is located.” 3.
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