Monash Law Students’ Society

Student Tutorials Program

SketchNotes

Property A

2023
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FOR THE PERSONAL USE OF LSS MEMBERS ONLY.

Prepared by Arieh Herszberg

Studied Semester 1 2020
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PROPERTY A
SKETCHNOTES 2023
Table of Contents
THE DOCTRINE OF FIXTURES ............................................................................................... 4

REMOVAL OF FIXTURES ......................................................................................................... 5

DOCTRINE OF ESTATES .......................................................................................................... 6

DOCTRINE OF WASTE.............................................................................................................. 6

ADVERSE POSSESSION ............................................................................................................ 7

FINDER’S RIGHTS ..................................................................................................................... 8

TRANSFER OF LAND................................................................................................................. 9

GIFTS OF PERSONAL PROPERTY ........................................................................................ 11

LEASEHOLD ESTATES ........................................................................................................... 12

TYPES OF LEASES ................................................................................................................... 12

CREATION OF LEASES ........................................................................................................... 13

REGULATION OF LEASES ..................................................................................................... 13

LEASEHOLD COVENANTS ..................................................................................................... 15

ASSIGNMENT OF LEASES ...................................................................................................... 16

CONTRACTUAL LICENCES ................................................................................................... 18

EASEMENTS ............................................................................................................................. 19

RESTRICTIVE COVENANTS – SEE VLRC 2011 REPORT ................................................... 21

MORTGAGES ............................................................................................................................ 22

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The Doctrine of Fixtures

• A fixture is attached to the land and is included as part of the land (Interpretation of
Legislation Act s 38; PLA s 18)
• Policy: Doctrine has been overridden or modified by statute in specific circumstances (see
Competition and Consumer Act sch 2, cl 8)
• Exam tip: Explain why the DoF is relevant in the context/question
Contract of Sale
• The doctrine of fixtures only applies where a contract does not specify whether the object
runs with the land (Belgrave Nominees v Barlin-Scott Airconditioning – Kaye J, 952)
Presumptions and Burden of Proof
• If the object is resting on its own weight, there is a presumption that the object is a chattel
(NAB v Blacker). The party seeking to prove that the object is actually a fixture bears the
burden of proof.
• If the object is attached to the land, it is presumed to be a fixture (Belgrave Nominees). The
party seeking to prove the object is a chattel now bears the burden of proof.
• Important: Presumptions are rebuttable. Yet, the greater the degree of attachment, the
stronger the presumption, and the more likely it is a fixture (Conti J, Blacker). Here, since it
is light/heavy, then the presumption is weak/strong.
• Policy: See Latin maxim of quicquid plantatur solo, solo cedit in Vopak Terminal Darwin v
Natural Fuels Darwin
Degree of Annexation Test
This test looks at how the object is attached to the land. The following factors from NAB v
Blacker offer some guidance:
• Effect of Removal on land: would removal cause damage to the land or the building to
which it is attached?
• Effect of Removal on object: would removal cause damage to the object itself?
• Mode and Structure of Annexation: How is it attached? How strong?
• Cost of Removal: Would the cost of removal exceed the value of replacing the item?
• Exam analogy/distinguish: In Blacker irrigation equipment was considered to be chattels
after being bottled to the ground by way of 4 bolts.
Object of Annexation Test
• Policy: This test is relevant as the degree of annexation test was unnecessarily rigid,
Vaughan Williams LJ, Re De Falbe.
This test considers the intention of the parties at the time of fixing the object. If the object is
attached to ‘improve the land’, it is a fixture (NAB v Blacker). The below factors from NAB v
Blacker are relevant:
• Purpose of Enjoyment: Was the object fixed to promote the enjoyment and use of the land?
(Belgrave Nominees). Or was the object attached to promote the enjoyment of the object
itself? (Leigh v Taylor).
• Nature of the Chattel: Sometimes the answer is obvious, and it would be absurd to classify
the object as a fixture when it should be a chattel and vice versa. (Compare NAB v Blacker
and Belgrave Nominees).
• Permanence: Is the object attached permanently or temporarily?
• Function of Annexation: Is it crucial and necessary to the property. Exam
analogy/distinguish: Unlike/Similar to Belgrave, the [article] is not an essential feature of
the [LAND] like an AC is for an office environment because … It would be considered a
fixture/chattel.
• These factors are useful guides, but are neither exhaustive nor definitive (Blomfield)

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Consider Available Case Law

NAB v Blacker
Irrigation system on a farm, made up of valves, sprinkler heads, and pumps on wheels. Held: a
system comprising of multiple parts can have each part considered separately. In this case,
each part was found to be a chattel.
Belgrave Nominees v Barlin Scott Airconditioning
An air conditioning unit on the roof of a house, attached with bolts. Held to be inherently a
fixture of an office building.
Leigh v Taylor
A tapestry was hanging on a wall. Hanging the tapestry on a wall was the only way to enjoy it
properly: chattel.
Conclude
• If the above tests are made out, the object is a fixture and it will run with the land.
• If the tests are not made out, the object is a chattel and does not run with the land.
• Policy: Despite no single test being determinative (Blacker, [16]) the object of annexation
test is preferred (Belgrave)
Removal of Fixtures
• If it is a Vendor-Purchaser relationship, once a contract of sale has been entered into,
fixtures can not be removed from the property as they have vested in the purchaser. Chattels
may still be removed subject to the contract.
• If it is a Mortgagee-Mortgagor relationship, once there has been a default, the Mortgagee is
entitled to claim all of the real property, which extends to fixtures because they run with the
land.
• If it is a T/R-LL/RRP relationship, the below rules apply:
Residential Tenancies Act 1997 s 64 (RTA)
(1) A T/R must not install any fixtures on rented premises or make any alterations without the
LL/RRP’s consent; and
(2) A T/R who has installed fixtures (with or without consent) must restore the premises to the
condition they were in before the instillation or pay the LL/RRP for the cost of restoring the
premises.
(3) Subsection (2) does not apply if—
(a) the tenancy agreement otherwise provides; or
(b) the LL/RRP and the T/R otherwise agree.
Property Law Act 1958 s 154A (PLA)
(1) A T/R who at his or her own cost or expense has installed fixtures on, or renovated, altered
or added to, a rented premises owns those fixtures, renovations, alterations or additions and may
remove them before the relevant agreement terminates or during any extended period of
possession of the premises, but not afterwards.
(2) A T/R who removes any fixtures, renovations, alterations or additions under subsection (1)
must—
(a) restore the premises to the condition they were in immediately before the installation,
renovation, alteration or addition, fair wear and tear excepted; or
(b) pay the LL/RRP an amount equal to the reasonable cost of restoring the premises to
that condition.
(3) This section does not apply to the extent that—
(a) the lease otherwise provides; or
(b) the LL/RRP and the T/R otherwise agree.

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Doctrine of Estates
Freehold Estates
Fee Simple
Closest form to absolute ownership as it is the largest estate possible (Gumana). Lasts
indefinitely. Includes the right to use, alienate, and exclude (Milirrpum). On death, the estate
will pass to the next of kin. If there is none, it passes to the crown.
Fee Tail (no longer exists PLA s 249)
Designed to keep property within a particular family. Inheritance of the estate is limited to the
lineal descendants of the proprietor. Includes right to use and exclude, but not the right to
alienate. This is rarely used in Victoria/Australia.
Life Estate
Where a freehold estate is granted to a person (the life T/R) for the life of a nominated person.
Pur sa vie - for the duration of the grantee’s life or Pur autre vie – for the duration of someone
else’s life
Includes right to use and exclude. It is possible to alienate the life estate, but the purchaser of the
life estate will lose their estate once the nominated person dies. (Cannot devise it in a will)
Future Interests
Policy: See VLRC 2010 Report
Reversion Interest
If the grantor of the future interest does not expressly specify where the estate will go, the estate
will revert back to the grantor. (e.g. X grants life interest to Y. Once Y dies, the land goes back
to X).
Remainder Interest
If the grantor expressly specifies where the estate will go (e.g. X grant life interest to Y and then
to Z. Once Y dies, the land goes to Z in fee simple)
Contingent Remainder
Where the future interest is conditional upon an event occurring, the interest will only vest upon
the occurrence of that event. Thus, it is possible for the interest to never come into possession.
PLA s 192 may save the contingency if someone dies and the condition hasn’t been met.
Vested Remainder
Will be vested in interest of remainder if the identity of the person taking the interest is clear and
no condition precedents to the interest are taking effect. (e.g. X grants Blackacre to Y for life,
then to Z in fee simple. X will no longer have a property interest. C has a future interest in
remainder which will not vest until X’s death. C is the remainderman)
Doctrine of Waste
“[T]o prove waste, you must prove injury to the inheritance” - Lord Jessel MR, Jones v
Chappell, 541).
Exam tip: Ensure you identify the type of land interest as well as the type of waste.
Ameliorating Waste
Where the estate holder changes the ‘character’ of the land, to something that the reversioner or
remainder-man did not expect (includes an improvement to the land).
Consider the severity of the changes, the costs of rectification, and the reasonableness of
improvement.
The erection of buildings on land which improves the value of the land is not necessarily waste.
In order to prove that it is, you must prove that there has been an injury to the inheritance.

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If found to be ameliorating waste, the future interest holder may require a reversion of the
property. It is unclear whether the courts can award nominal damages. The courts are unlikely to
grant an injunction where property value has been improved.
Permissive Waste
Where the life T/R has failed to do what is expected and allowed damage to occur by failing to
act. Harm of this kind is permitted to occur unless the instrument granting the life estate
specifies a duty to carry out repairs.
There is a presumption of no liability unless a contract creates liability (PLA s 132A(5))
If found to be permissive waste, the court will award damages or some other compensatory
remedy.
Voluntary Waste
Commissioning of acts which cause harm to the property (see PLA s 132A(1)-(3)). Can only be
excluded where the instrument granting the life estate excuses the T/R from liability for
voluntary waste (PLA s 132A(2)).
Equitable Waste
Intentionally harming the property (e.g. removing all doors and windows etc.) PLA s 133
Remedies
Remedies for waste include damages or, if the conduct is ongoing, an injunction.
Adverse Possession
Identify the Interest
1. Present Interest in Land (fee simple): right to bring action is barred after 15 years of
accruing (LAA s 8)
2. Leases for LL: Time starts accruing (LAA ss 10, 13)
a. Fixed term: at end of lease (LAA s 13(1))
b. Tenancy at will: After 1 year (LAA s 13(2))
3. Reversions/Remainders under life estates: time barred after which of the following is
longer (LAA s 10):
a. 15 years from date of intruder’s possession; or
b. 6 years from date of life T/R’s death (when remainder or reversioner gains
possession)
4. Interests under a will: If owner was in possession at death, time will start running from date
of death (LAA s 9(2))
When did time start to run?
The owner of the land discontinues possession or is dispossessed (s 9(1)) and;
Another person adversely possesses the land (s 14(1)) this occurs where there is both factual
possession and an intention to possess (Buckinghamshire County Council v Moran)
Factual Possession
Physical control/custody of the land. Must be more than mere occupation (Buckinghamshire)
nec vi, nec clam, nec precario: Open, not secret; peaceful, not by force; adverse, not by consent
(Mulcahy, Bowen CJ)
Dealing with the land… as an occupying owner might have (Abbatangelo)
Intention to Possess (Animus Possidendi)
Clear and unequivocal intention to exclude the whole world, including the true owner
(Abbatangelo)
For the time being (Buckinghamshire; Abbatangelo)
Need not intend to own the land (Pye)

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Where there is unequivocal factual possession, generally animus is satisfied (Lord Hutton, Pye).
Can multiple periods of AP be considered together?
Multiple periods of continuous adverse possession can be aggregated (Mulcahy) –property will
go to the first possessor
• Temporary absence is not necessarily abandonment (Mulcahy) especially where the
property is devised in a will
• Visiting only on weekends may be sufficiently continuous (Abbatangelo)
If discontinuous, time starts running again from the last squatter (Mulcahy; LAA s 14(2))
Had time ever stopped running?
Owner asserts superior title: More than mere formal entry: e.g. institute proceedings to recover
or taking possession of the property (LAA s 16)
Intruder admits owner’s superior title (must be in writing) – (LAA s 25)
Part payment of debt (LAA s 24)
Abandonment by the Adverse Possessor
Policy: See Human rights argument found in European Court of Human Rights in JA Pye
Conclude
Owners title will extinguish after expiration of period e.g. 15 years, 6 years etc. (LAA s 18)
Adverse Possessor may be registered on title (TLA ss 60 – 62)
Rights of the Adverse Possessor are paramount interest (TLA s 42(2)(b))
Exam tip: Ensure that one of the 5 AP exceptions do not apply, (1) The Crown LAA s 7, (2) Vic
Rail Track LAA s 7A, (3) Water Authority LAA s 7AB, (4) Local Council LAA s 7B, (5) Owners
Corporation LAA s7C
If relevant: See options for potential remedies (Break Fast; Sawyer)
Finder’s rights
The primary question is which party has the best proprietary right to the [ITEM] that [X] found.
In determining the ownership of the item, it will be considered that until absolute title or better
ownership is proven the Court will protect the right of the actual possessor (Armory v Delamirie,
Pratt CJ). This rightful owner has a limitation period (LAA s 5(1) of 6 years to reclaim
ownership and displace the rights of the [ITEM[.
Determine whether the [ITEM] was embedded or attached
• Where the [ITEM] is found in or attached to the land, the owner or lawful possessor of
the land has a better title to the object than the finder (Auld LJ, Waverly Borough
Council, [9]).
• Whether the [ITEM] is unattached to land the lawful possessor has the better title to the
ring unless the proprietary exercised such manifest control over the land as to indicate an
intention to control it and anything found on it (British Airways Board, Donaldson LJ)
The intentions of the finder
Did the finder act honestly?
• Handing the lost item to police indicates honesty, British Airways Board
The actions of the finder
The finder must be a lawful entrant and act within the scope of their lawful rights of entry at the
time of finding, British Airways Board; Waverly Borough Council.
The item must be found by way of ordinary and incidental use of the land (Auld LJ, Waverly
Borough Council, [43]). Exam analogy: Fletcher in Waverly Borough Council found the item
using a metal detector which was considered not to constitute normal recreational use of the
land.

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The abandonment of the [Item]

This requires (a) loss of actual control and (b) loss of intention to control, Pratt CJ, Armory v
Delamirie
Finder/employer
Where an employee finds something, he finds it as the servant of the employer who becomes the
owner, Willey v Synan; M’Dowell v Ulster Bank
Transfer of Land
Has the transfer of land met the required formalities?
If formalities are met, there is a legal interest. If not, there may be an equitable interest (see next
section)
General Law Land
Title is passed upon the execution and delivery of a deed (PLA ss 51 & 52).
The deed must be Signed (PLA s 73(1)); Sealed (PLA s 73A); and Delivered (PLA s 73B)
Torrens System Land
Title passes upon registration. (TLA s 40(1))
Priority is given to the time lodged rather than time executed (TLA s 34(1))
If formalities haven’t been met, does an equitable interest arise?
Where the formalities and thus a legal interest are not met, equity may recognise the passing of
the fee simple to the purchaser.
Policy: In the event of conflict, equitable title will prevail over common law title (Supreme
Court Act s 29(1)
Is there a valid binding contract?
Offer, Acceptance, Consideration only. Assume there is a valid binding contract unless it is
obvious that there isn’t.
Is there evidence of the contract?
Section 126 Instruments Act
Contract in writing and signed by the party to be charged (IA s 126).
Multiple signed documents that expressly or impliedly refer to one another can be read together
(Widin) so long as they:
a. Expressly or by necessary implication incorporate/refer to the other document (preferred
law in Australia); or
b. Expressly or impliedly refer to the transaction (can use this if the above fails)
The document must contain “sufficient writing” to be enforceable, requiring the essential terms
and “subject matter” (Widin, [35], Hill J). This could include the parties, price, property and
nature of the transaction (Widin, [65], Hill J).
Oral Evidence and Doctrine of Part Performance
1. Apply strict test per McBride, approved by the High Court in Regent:
a. ‘Must be unequivocally, and in their own nature, referable to some such agreement as
that alleged’. Must be such as could be done with no other view than to perform such
an agreement (Pipikos – 2018 HCA)
b. Acts must be done in faith of the kind of agreement in question
c. Acts must be permitted on the basis of that kind of agreement
2. If strict test fails, apply broad test (Regent):
a. Acts must, on the balance of probabilities, point to the existence of some contract
which is similar and consistent with the contract in question.
Is the contract specifically enforceable?

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Purchaser must be ready, willing and able to perform their side of the contract (Bunny
Industries, Tanwar)
There must be no bars in equity:
1. Transaction cannot be subject to finance
2. Damages must be an inadequate remedy
3. Person seeking equity cannot be in breach of contract
4. No contingencies or outstanding duties (Tanwar)
5. A third party cannot be unduly burdened
6. Consideration must flow from both sides
7. Cannot require constant supervision by courts or personal services on either side
8. Clean hands
9. The claimant cannot delay their rights
Doctrine of Conversion [Always discuss both historical and current views]
Conclude on whether there is an equitable interest based on the steps above. If there is, you need
to characterise it.
Historic View: Constructive Trust
• Vendor holds property on constructive trust for purchaser (Lysaught v Edwards)
• If Vendor sells property to a different purchaser for a higher price and proceeds through to
registration: the profits of the sale are held on trust for the purchaser (Bunny).
o If the purchaser did not have a specifically enforceable contract at the time of the
breach, they are only entitled to a return of their deposit (Bunny)
o Exam tip: If the second sale is registered, this is akin to Bunny
Current View: Equitable Lien
There is a lien over the property - a charge/right to get something back (Tanwar)
Purchase Checklist: Sale of Land Act
Cooling Off Period: Apply when a termination of K has occurred
SLA s 31(2) – (8) provide a three-business day cooling off period for private sales of residential
property whereby the purchaser may give notice that they wish to terminate the contract of sale.
Cannot be contracted out of (s 31(8)).
Contract needs conspicuous notice of cooling off period advising purchaser of their rights (s
31(6))
o if not, P may rescind at any time before possession (s 31(7))
Vendor Disclosure Statements (Section 32): Make sure to know this
• Prior to signing a contract, the vendor must provide a disclosure statement (often called a
section 32 statement) containing information in SLA s 32A – s 32I. including:
o Particulars of mortgage s 32A(a)
o Particulars of any charge over the property conferred by legislation s 32A(b)
o Rules, taxes and outgoings s 32A(c)
o Where two or more payments are required, the relevant information s 32A(d)
o Insurance details s 32B
o Relevant matters pertaining to the use of land, including:
§ Easements, covenants, leases, or other similar restrictions s 32C(a)
§ Whether the land is in a bushfire zone s 32C(b)
§ Where there is no road access to the land s 32C(c)
§ Whether there are any applicable planning schemes s 32C(d)
o Notice of relevant orders/declarations/government recommendations which the
vendor is reasonably expected to know s 32D(a)

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o Government plans/reports/orders about livestock disease or agricultural

contamination s 32D(b)
o Whether there is any notice to serve under the Land Acquisition Act s 32D(c)
o Whether there were any building permits issued in the past 7 years which may affect
the land s 32E
o Whether the land is subject to an owner’s corporation s 32F(1)
o The owners corporation’s AGM, fees and insurance for the last 15 months s 32F(2)
o Whether a growth area infrastructure contribution is required s 32G
o Whether the following services are connected to the property s 32H: (a) Electricity,
(b) Gas, (c) Water, (d) Sewerage, (e) Phone.
o Evidence of title, including:
§ Register Search statement identifying land and location s 32I(a); or
§ A copy of the previous conveyance s 32I(b)(i); or
§ Any other document which gives evidence of the vendor’s title to the land s
32I(b)(ii);
§ Evidence of vendor’s authority to sell if vendor is not fee simple owner s
32I(c)
§ If land is subdivided:
• Relevant plan of subdivision (s 32I(d)(i)); or
• Latest version of subdivision plan (s 32I(d)(ii))
• If a vendor provides false information s 32K(1)(a), or fails to supply all information s
32K(1)(b) or fails to sign s 32K(1)(c):
o The purchaser may rescind at any time before the purchaser accepts title or rent
receipt (s 32K(2))
o The purchaser may rescind at any time prior to settlement if the vendor fails to
provide the Vendors Statement s 32K(3) Unless the court is satisfied that:
§ The vendor acted honestly and reasonably s 32K(4)(a); and
§ The Purchaser is in substantially as good a position as if it were not for the
vendors contravention s 32K(4)(b).
• The requirements of s 32 cannot be contracted out of (s 32N)
• If the vendor and the purchaser have already engaged in one transaction where the
requirements of s 32 were met, the vendor does not need to provide another vendor statement
for a later sale of the same land to the same purchaser (s 32O)
Due Diligence Checklist
A Due Diligence Checklist is a checklist for prospective buyers of residential land to help them
obtain relevant information (SLA s 33A)
The vendor must offer a Due Diligence Checklist from the date the property is listed for sale s
33B(1);
Gifts of Personal Property
Does the donor have capacity?
The donor must have the capacity to understand that the gift is absolute and have the mental
capacity (Re Beaney; Thomas)
Does the donor have the requisite intention?
The Donor must have intended the transaction to take immediate effect as a gift. They must
intend to relinquish all interest in the property to the done, rather than allowing the donee to use
and enjoy the property
Does the donor own the property? OTF…
Does the donor intend to transfer the gift immediately?

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Donor must have possession of the goods at a time when they had intention to transfer. A
promise to give something in the future is not enforceable (Re Stoneham).
Did the donee accept the gift? OTF… tradition vera is not seen
Was there an adequate delivery?
• Mere words do not suffice (Re Cole)
• If the goods are already in the donee’s possession, no further action is necessary. However, a
clear and unambiguous statement of intention is required (Re Stoneham)
• There can be delivery when the donee has to effect delivery themselves (Thomas v Times
Book Co.)
• Symbolic delivery is sufficient to show that possession has passed (Rawlinson v Mort)
• Giving the done a key to a room where the goods are held is effective (Wrightson v
Mcarthur)
Leasehold Estates
Is there Exclusive Possession?
A valid lease requires that the T/R must have exclusive possession of the rented premises
(Radaich, Windeyer J, 221). This is an objective test, looking to the ‘truth and in substance of
the agreement’ (Radaich, Dixon CJ)
Exclusive possession is control of the premises to the exclusion of all others including the
LL/RRP but subject to the LL/RRP’s right of entry (Street)
Factors that may point towards exclusive possession:
o Does the T/R control entry to the property (Radaich – here, had control the whole time);
o Does the T/R have a right to quiet enjoyment (Street), see Vic Charter s 13;
o Right to exclude others (Street; Swan);
o Substance over form (Radaich; Street)
o Arm’s length commercial relationship rather than a domestic relationship (Radaich);
o There is a strong presumption that residential premises need exclusive possession (Street);
Is there Certainty of Duration?
The date of commencement and termination must be known or capable of being ascertained
(Lace, Lord Greene MR)
• Expressed with certainty and specificity or by reference to something which can be looked to
as a certain ascertainment of what the term is meant to be.
• If there is no fixed expiry date: likely a periodic lease (Prudential Assurance)
Conclude
• If there is a lease, move to the next section.
• If there is no lease, skip to licences.
• Exam tip: Always consider both the outcomes of a lease or a contractual license.
Types of Leases
Fixed Term Lease
A lease with a set expiry date, comes to an end at the expiration of the period.
Periodic Tenancy Lease
Ongoing tenancy (e.g. month to month).
To terminate the lease, the T/R must give notice in accordance with frequency of payment
Tenancy at Will
T/R has consent of the LL/RRP to live on the property without paying rent for an indefinite
period. Can be terminated at any time. If the T/R starts to pay rent, it becomes a periodic tenancy
Tenancy at Sufferance

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The T/R initially possesses land with consent but remains at the expiration of a lease without
paying rent. The LL/RRP may bring an action for recovery of possession against the T/R, but
they cannot sue for damages in trespass.
Creation of Leases
Legal Leases
General Law Land
General law leases require a deed (PLA s 51, s 52). Deed must be signed, sealed and delivered.
Legal title will pass upon execution and delivery of deed. Exception: Does not apply to any
leases not required to be in writing (PLA s 52(2)(d))
Torrens System Land:
Under the Torrens system, a lease is only legal if it is registered (TLA s 40(1))
• Leases not exceeding three years need not be registered but are still legal (TLA s 66(1))
Equitable Leases
Even if a lease does not comply with the formal requirements of a legal lease, an equitable lease
may be created (Walsh)
Equitable leases may be created by a specifically enforceable agreement if that agreement
complies with s 126 of the Instruments Act or if it has been partly performed (Walsh).
Is there a binding contract?
One sentence on offer, acceptance, consideration, etc. Assume there is a contract unless it is
obvious that there isn’t.
Evidence of a contract:
Written: s 126 Instruments Act
Contract must be written and signed by the party to be charged, or their agent, or a signed
written memorandum (IA s 126(1)). If there are multiple documents relating to the transfer, they
may be read together per the rule in Widin.
Verbal: Oral agreement and doctrine of part performance
T/R in possession satisfies part performance (Walsh)
Specifically Enforceable Contract
Ready willing and able and no bars in equity.
Is an equitable lease equal to a legal lease?
An equitable lease only binds the LL/RRP and T/R, not third parties (Chan)
Regulation of Leases
Residential Tenancies Act
Does the RTA apply?
• RTA s 7: RTA applies to rented premises used primarily for residential purposes
• RTA s 8: RTA does not apply where a T/R occupies both residential premises and business
premises in the same building owned by the same LL/RRP (e.g. owning an apartment above
a shop)
• RTA s 9: RTA does not apply to a fixed term lease where:
o The LL/RRP occupied rented premises immediately prior (a); AND
o The term of the lease is less than 60 days (b); AND
o The LL/RRP intends to resume their residency at the end of the lease (c)
• RTA s 10: RTA does not apply to holiday homes
What information must the LL/RRP provide?
• RTA s 26: Tenancy agreement must be in writing and in the prescribed standard form
• RTA s 29: T/R must be given copy of proposed agreement prior to signing final agreement:
o T/R must be given a copy of the agreement within 14 days of signing it.
o Cannot sign the agreement on the day you receive it.

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• RTA s 35: If T/R pays bond, LL/RRP must give T/R 2 copies of a condition report, signed
by the LL/RRP. T/R must return a signed copy of the report within 3 days of entering into
possession
• RTA s 66: LL/RRP must give T/R a written statement setting out the rights and duties of
LL/RRP and T/R prior to occupation.
• RTA s 30: Children: A LL/RRP cannot refuse to let rented premises to a person because they
intend to live there with a child who is under the age of 16 unless:
o Housing is for childless families/individuals, under statute (2(a)); or
o The LL/RRP also lives at the premises as their principal residence (2(b)); or
o The design of the premises is unsuitable for children (2(c))
What information must the LL/RRP provide?
• RTA s 27: A provision of an agreement is invalid if it tries to ‘exclude, restrict or modify’
the RTA.
Retail Leases Act
When does the RLA apply?
• The RLA applies to the lease of Victorian premises (s 13) which are used wholly or
predominantly for the sale of goods, provision of services, or other specified business (s 4)
for at least five years (s 21) after 1 May 2003 (s 11). See CB Cold for the ‘ultimate
consumer test’
• RLA s 13: RLA applies to retail leases for premises in Victoria, regardless of where lease
was entered into (a), and whether lease purports to be governed by another jurisdiction (b)
• RLA s 4: RLA does not apply:
o where occupancy costs exceed regulation costs ($1 million) (Retail Leases
Regulations) (s 4 (2)(a)),
o If T/R is conducting business on behalf of LL/RRP as agent or employee (s 4(2)(b)),
o Or if T/R is a corporation/subsidiary (s 4(2(c)).
o
§ Occupancy costs include fixed rent (s 4(3)(a)), outgoings (s 4(3)(b), other
costs included in lease (s 4(3)(c))
What information must the LL/RRP provide?
• RLA s 15: LL/RRP must provide a copy of the lease to a potential T/R as soon as
negotiations begin.
• RLA s 16: Lease must be in writing and signed by all parties (1)
o Failure to meet this requirement does not make lease illegal, invalid or unenforceable
(2)
• RLA s 46:
o LL/RRP must give T/R written estimate of bills that the T/R must contribute to
before the lease is entered into (3(a)). The T/R is not liable to pay any bills not
included in the estimate (4).
• RLA s 17: Disclosure Statement
o Must be provided at least 14 days prior to signing lease (1(a))
§ Must include a copy of the proposed lease in writing (1(b))
§ If premises not available for handover at specified time, T/R can hold rent (4)
§ T/R may give written notice of termination if any information is misleading,
false or materially incomplete or if a copy of proposed lease is not given (5)
within 28 days (6)
Can parties contract out of the RLA?
• RLA s 94: In case of any inconsistency between RLA and the lease in question, the RLA
prevails (1)

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Leasehold Covenants
Are there any express covenants?
Covenants expressly stated in the lease
Are there any covenants implied under statute?
Transfer of Land Act
§ Can contract out of them under s 112.
1. Common implied covenants on the T/R:
• Pay rent, rates and taxes: s 67(1)(a)
• Keep and yield up the premises in good repair: s 67(1)(b)
2. Common implied covenants on the LL/RRP:
• Right to enter and inspect property yearly: s 67(1)(c)
• Right to re-enter, take possession of property if lessee is more than one month late for
rent: s 67(1)(d)
Residential Tenancies Act
• A T/R must not use a premises for illegal purposes (s 59)
• A T/R must ensure care is taken to avoid damaging the premises (s 61 (1)(a))
• T/R must take reasonable care to avoid damaging common areas (s 61 (1)(b))
• The LL/RRP must take all reasonable steps to ensure the T/R has quiet enjoyment to the
premises (s 67)
• A T/R may give notice of intention to vacate if the premises is (s 91ZD(1))
o Unfit for human habitation, or (s 91ZD(1)(a))
o been destroyed totally or to such an extent to be rendered unsafe (s 91ZD(1)(b))
o The notice may be on that date, or a later date (it can be immediate) (s 91ZD(2))
Are there any implied covenants on the T/R under the common law?
• Obligation to treat the premises in a T/R-like manner
• Duty not to commit waste (Warren)
• Covenant to yield up possession (Waterhouse)
Are there any implied covenants on the LL/RRP under the common law?
Fit Premises
Ensure that the premises are fit for habitation. EG: No infestation of bugs like in Marrable
Quiet Enjoyment
Act or omission of LL/RRP substantially interfering with the ordinary and lawful enjoyment of
the land (Hawkesbury, Hill J)
• The LL/RRP is only liable if they personally breach the covenant or authorize someone else
to
• Substantial Interference
o Does not prevent against disturbances that were already occurring at the
commencement of the lease.
o Interference has been held to include removing all windows and doors; threatening
T/R; interfering with T/R’s privacy; exhaust smoke in restaurant etc.
o Premises becomes unusable leading to financial loss (Hawkesbury)
o Must be ongoing and not temporary, more than trivial (Hawkesbury)
• Remedy
o Damages and/or repudiation of the lease
Non-Derogation from Grant
Act or omission of LL/RRP making the land substantially less fit for the purposes for which it
was granted (Nordern, Elias J)

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• Disclaimer/warranty of suitability is insufficient to permit derogation from the grant

(Nordern)
Was the LL/RRP aware of the intended purpose of the premises? (Aussie Traveller).
• NDG by the LL:
§ Must be aware of the purpose
• E.g. as per Purple Tangerine it was the head-T/R who changed the locks which
affected the sub-lease
• Property rendered substantially less fit
o Requires an understanding of the purpose of the lease
o Restricted access to leased premises (Purple Tangerine)
o Does not have to be physical disturbance (Nordern)
o More than a “mere inconvenience with amenities” (Nordern)
• NDG by a third party
o A LL/RRP can be liable to a T/R for a breach of covenant of NDG through the
actions of another T/R if they are aware of the interference and failed to stop it
o LL/RRP must have known of or been wilfully ignorant towards situation (Nordern)
o LL/RRP does not have to specifically authorize the 3rd party’s actions to be liable
§ E.g. Sawdust and noise from staircase manufacture derogated from grant of
premises for camping equipment business below (Aussie Traveller)
§ E.g. Renting above premises to a brothel derogated from grant of office space
due to noise, smells and unsavoury clients (Nordern)
§ E.g. SubT/R making bathrooms, elevators inaccessible to many staff by
failing to provide enough access cards derogated from grant of office
premises (Purple Tangerine)
Assignment of Leases
Can it be assigned or sublet?
• PLA – Yes if there’s no express agreement
o In the absence of express covenant, both the LL/RRP and T/R have a right to assign
or sublease (Henningsen)
o Most leases will include a covenant to not assign or sublease. If so, the LL/RRP must
not reasonably withhold consent and may not impose a fine on the T/R in exchange
for such consent (s 144(1))
• RTA – Not without LL/RRP’s written consent
o S 15: PLA s144 does not apply
o S 81(1): A T/R must not assign or sublet the premises without the LL/RRPs written
consent
o s 81(2): LL/RRP must not unreasonably withhold consent to the assignment or sublet
o s 81(3): An assignment or sublet of rented premises without LL/RRP’s consent is
invalid unless the Tribunal has determined that consent is not required
• RLA – Not without LL’s written consent
o S 60(2): PLA s144 does not apply
o S 60(1) A LL/RRP can withhold consent to an assignment in certain cases
o S 61(2) Request for assignment must be in writing, must provide LL with
information about T/Rs
Assignment by T/R
• A lease requires certainty of duration. A T/R may assign the remainder of the term to
someone else

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o The T/R must obtain the LL/RRPs consent to assign a lease (RTA s 81(1)) or the
assignment will be invalid (RTA s 81(3)). This consent must not be unreasonably
withheld (RTA s 81(2)).
• LL/RRP and T/R maintain privity of contract:
o LL/RRP and T/R remain liable for their own breaches of contract
o Can sue T/R’s for assignee’s breach (PLA s 78, s 79)
o If assignee fails to pay rent, original T/R may be contractually obliged to pay. If the
LL/RRP sues the T/R for this, the T/R may seek an indemnity from the assignee who
commits the breach (PLA s 77(1)(c), TLA s 67(2))
• T/R and Assignee (new T/R) now have privity of contract:
o Both are liable for any breaches of this contract
• LL/RRP and Assignee (new T/R) now privity of estate but no privity of contract
o No privity of contract but both have a proprietary right in the land Covenants will be
binding if they touch and concern the land.
Assignment by LL/RRP
• If the LL/RRP sells the property, the purchaser becomes the new LL/RRP. They assume the
benefits (PLA s 141) and burdens (PLA s 142) of the reversion.
o Unless the new LL/RRP signs a new agreement with the existing T/R, they do not
have privity of contract. The old LL/RRP and the existing T/R would maintain privity
of contract
§ The old LL/RRP and existing T/R remain liable for their own breaches in
contract. The old LL/RRP can sue the new LL/RRP for the new LL/RRP’s
breach (PLA s 78, s 79)
• Old LL/RRP and new LL/RRP have privity of contract
• The existing T/R and the new LL/RRP have privity of estate
o No privity of contract but both have a proprietary right in the land. Breaches of
covenants will be binding so long as they touch and concern the land.
Touch and Concern Test (Is the leasehold covenant binding on the parties?)
o For a covenant to bind assignees with only privity of estate, it must ‘touch and concern’ the
land (Gumland)
1. Covenant must benefit only the reversioner
2. Covenant must affect the nature, quality, mode of use or value of the land
3. Covenant must not be personal in nature
Covenants held to touch and concern the Covenants held NOT to touch and concern
land the land
Renew the lease (Hales) To repair chattels (Williams)
To pay rent (Parker) A ‘put option’ – LL requires T to purchase
(Denham)
To supply premises with water (Jourdain) To repay securing deposit
To repair premises (Williams) To purchase buildings by the tenant (Lee)
To build on certain parts of neighbouring
property
To agree/consent to assignment of lease
Sublease/Subletting
• When the T/R organises a lease between themselves and another party for part or all of the
leased property.
o Requires LL/RRP’s consent (RTA s 81(1)) or it will be invalid (RTA s 81(3)). This
consent must not be unreasonably withheld (RTA s 81(2)).
o LL/RRP and T/R have privity of contract and privity of estate:

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o T/R and sub-T/R have privity of contract and privity of estate:

o LL/RRP and sub-T/R do not have privity of contract or privity of estate.
§ T/R is responsible to LL/RRP for breaches of subT/R but may seek indemnity
from the sub-T/R afterwards.
Contractual Licences
Types of Licences
Contractual Licence
o A licence does not confer a proprietary right. It is purely a contractual right to enter
someone’s land.
o May be express or implied, but must be a contract with consideration or a deed (no need for
certainty of duration)
o May be revoked at any time, even wrongfully. The Licensee may have action for breach of
contract (Cowell)
Bare Licence
o Permission to enter land with the permission of the registered proprietor.
o Not a contractual right. May be revoked at any time.
o Licensee may become a trespasser if they do not leave within a reasonable amount of time
after being asked.
Licence Coupled with a Grant
o Licence to enter land to exercise a proprietary right over chattels on that land.
o Must be expressly created in a contract or deed
o Profit a prendre: right to go onto land and take produce, easement, security interest in chattel
o Cannot be revoked (Cowell), enforceable against and assignable to 3rd parties.
Revocation of Licences
In Equity
o Court may grant an injunction or specific performance in equity to prevent licensor from
wrongfully revoking licence if licensor acts unconscionably (Heidke, Hardie JA) –
equitable remedies are at the discretion of the courts.
o An injunction is more suitable where parties do not have an ongoing supervision from the
court (Heidke)
o Use common sense: If X has already been kicked out of the bar, injunction irrelevant.
o Relevant discretionary considerations (Sigma, Batt JA, [31])
§ Was there an agreement not to revoke?
§ Are damages an adequate remedy? In Heidke, it was not as it was not possible to
reschedule the event
§ Would it force a continuing relationship that requires ongoing court supervision? EG:
Is there hostile attitudes?
§ Would it cause undue hardship on licensor?
§ Is the claim trivial?
§ Have the parties approached the court with ‘clean hands’
Enforceability Against a Third Party
• Contractual licenses cannot be enforced against 3rd parties as they are not privy to the
contract (King v David Allen)
Ashburn Anstalt Exception
• A contractual licence may bind a third party where the third party’s conduct is such that it
would be inequitable to deny the rights of the contractual licence (Ashburn)
• words in contract must be intended to bind the third party not merely draw their attention to
the existence of a contractual licence

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• It is insufficient if a third-party only has notice of licence, they must have willingly and
unequivocally undertaken an agreement to honour the licence (Ashburn)
• See the liberal approach taken in the UK in Dutton. See interestingly this rejection in
Georgeski NSW
Easements
• An easement allows one owner of land (Dominant Tenement) to make use of another
person’s land (Servient Tenement) without conferring possession. Easements run with the
land (TLA s 42(2)(d)). Once created, an easement is a ius in re aliena and continues to exist
and benefit the land
Types of Easements
• Positive easement = Right of owner of DT to do something
• Negative easement = Prohibiting owner of ST from doing something
• Easements do not include access to light (PLA s 195) or air/view (PLA s 196)
Characteristics of Easements
• Per Re Ellenborough Park, utilising Cheshire (1954) approved in Riley v Pentilla, Gillard J
o There must be a Dominant and Servient Tenement [The land is the DT/ST. Not
the owner]
§ DT: Land benefiting from easement.
§ ST: Land that is burdened by the easement.
o DT and ST must be owned/occupied by separate people
§ You cannot have rights against yourself. Exception: you live in one property
and lease the other.
§ If the owner of DT or ST buys the other piece of land, the easement is
extinguished.
o Easement must accommodate the DT
§ The easement must benefit and accommodate the DT; it must be reasonably
necessary for the enjoyment of the land (Re Ellenborough)
§ Needs to be a “natural connection” that is “real and intelligible” between the
DT and ST (Clos, Santow J, [31]) – There must be proximity between DT
and ST. Exam analogy: In Clos, there was no real connection between DT
(Lot 86) and ST (Lot 27) as it was merely a random coincidence
§ Must benefit the land, not just the individual
• Commercial necessity is insufficient (Clos) unless business is
necessary to the ordinary use of the land (Copeland)
o Right must be capable of forming the subject of a grant
§ Not too wide or vague: sufficiently specific and capable of description
§ Cannot deprive ST of possession or confer exclusive possession on the owner
of DT (Clos)
§ Should confer utility and benefit to DT, not just a right to recreation
§ See, eg, Kitching, Jenkins J WASC
Creation of Easements
• It must be proven that an easement was created. An easement may be created by grant or
reservation.
Express Reservation
• If X owns Lot A and B and sells Lot B to Y. X may reserve an easement over lot B.
• Reservation operates at law without the purchaser having to execute the conveyance (PLA s
65)
• A vendor can declare an easement to be reserved (PLA s 194). Can be listed on title (TLA s
72)

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Express Grant
• Same as above, but instead X grants Y an easement over Lot A.
• A grant will be considered express when it is listed on title (TLA s 72(1)).
o Under General Law Land, a deed is required (PLA s 52)
o Under Torrens System Land, the easement must be registered for there to be a legal
interest (TLA s 40(1))
o Equitable Easements (for both GLL and TSL):
§ Generally, require a specifically enforceable contract that meet the
requirements of IA s 126 or an oral agreement with part performance (Walsh)
Implied Grant
• Implied Grant of Necessity: Easement is necessary for the use and enjoyment of the DT.
o High threshold (North Sydney)
• Common Intention: The parties impliedly intended for the easement to exist but failed to
expressly create it.
• Wheeldon v Burrows Rule: using an easement over a plot of land prior to its sale in parts.
o Continuous and apparent – visible and discoverable upon inspection and must be
permanent in nature
o Necessary for reasonable enjoyment – not as strict as implied grant by necessity
o At the time of grant – the quasi-easement was being used by the grantor for the
benefit of the parcel of land.
o This is ‘well entrenched in Australian law’ (Daar)
Implied Reservation
• Courts are very reluctant to infer easements of implied reservation (Wheeldon)
• Implied Reservation of Necessity: Easement is necessary for the use and enjoyment of the
DT.
o High threshold (North Sydney)
• Common Intention: The parties impliedly intended for the easement to exist but failed to
create it.
Prescription Long User
• Like adverse possession, but for easements.
o 20 years of continuous use that has been open, peaceful, uninterrupted and frequent
enough.
o Frequency of use varies by the type and nature of the land (Sunshine)
o Easement must be used without permission of ST
o Informed acquiescence of ST owner (Sunshine)
Scope of Easements
• Per Westfield: Once an easement is registered, its scope cannot change.
o Courts will take a literal reading of the easement when it is expressly created
o Extrinsic evidence is irrelevant where an easement is registered
• Per Cargill: Whilst the purpose of an easement must not change, the burden on the ST may
change.
o An easement extends to any activity that fits within the specified purpose. So long as
it does not amount to excessive use.
o Courts may consider extrinsic evidence including the nature of the land at the time
the easement was created but will not consider the subjective intention of parties.
Removal of Easements
• Agreement between owners of the DT and ST
• Abandonment of easement
• Alteration to the character of DT

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• Merger of the DT and ST

• Statutory extinguishment
Restrictive Covenants – see VLRC 2011 Report
Exam tip: Analogise/distinguish with the actual wording of the RC’s in Vrakas and Pollard
Characteristics of Restrictive Covenants
Negative in Nature
• The owner of the ST must be able to comply with the restrictive covenant through inaction
• A restrictive covenant cannot require action (not even ‘putting his hand into his pocket’). It
must be negative in nature.
Benefits the DT
• Must benefit the DT and encumber the ST (Pollard)
• The DT and ST must be clearly ascertainable (Pollard, Mukhtar AsJ)
• In Pollard, the absence of any description meant that it was not possible to identify the land
intended to be benefited.
Intention to Run with the Land
• The Restrictive Covenant must touch and concern the land and not merely provide personal
benefits to the owner of the DT.
Intention to Bind the Land
• Person wishing to enforce Restrictive Covenant must demonstrate on balance that the parties
intended the covenant to be ongoing and bind the land. There is a statutory presumption that
they do
• PLA s 78: Covenantees assumed to have created RC for benefit of successors
• PLA s 79: Covenantors assumed to have created RC for burden of successors
Enforceability of Restrictive Covenants
• A restrictive covenant in equity will not bind successors unless they have notice of the
existence of the Restrictive Covenant.
• However, if the Restrictive Covenant is registered on title, the successor will be assumed to
have notice (TLA s 42(1)).
• Registration is not a legal interest or valid purely by virtue of registration (TLA s 88(3))
Scope of Restrictive Covenants
• Same as easements
Removal or Variation of Restrictive Covenants
• PLA s84(1) sets out the test that the court will apply in considering whether to remove a
restrictive covenant (Vrakas, Kyrou J). The removal or variation of restrictive covenant is
discretionary.
First Limb
• PLA s84(1)(a): Changes in the character of the property or the neighbourhood or other
circumstances of the case which means the restriction ought to be deemed obsolete. This is a
question of fact
• “Whether as a result of changes in the property or neighbourhood, or other material factors,
the restriction is no longer enforceable or has become of no value” (Vrakas)
EG: Similar/Dissimilar to Vrakas, [X] would be unable to successfully contend that the
neighbourhood and character of the property had changed because __. Therefore, the RC
should not be deemed obsolete.
Second Limb
• PLA s84(1)(a): The continued existence of the Restrictive Covenant would impede the
reasonable user of the ST without conferring reasonable practical benefits on DT.

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• “The continuance of the unmodified covenant hinders, to a real, sensible degree, the land
being reasonably used, and the purpose of the covenants.” (Vrakas)
Third Limb
• PLA s84(1)(c): The proposed discharge or modification will not substantially injure the
persons entitled to benefit from the Restrictive Covenant.
• Substantially injure is similar to removing the practical benefits they are entitled to. The
injury must be real and not a fanciful detriment (Vrakas)
Mortgages
• A security interest whereby a mortgagee (lender) reserves a right to possession of the secured
property in the event the mortgagor (borrower) defaults on the loan.
General Law Land
Legal Interest
• Mortgage is created by deed (PLA s 52(1))
• Mortgagee holds legal title but cannot exercise rights of ownership against mortgagor unless
mortgagor defaults
• The Mortgagor retains an equity of redemption: The mortgagee must give the fee simple to
the mortgagor once debt is repaid.
Torrens System Land
Legal Interest
• Legal mortgages arise from registration of mortgage document (TLA s 40(1) & 74)
• Mortgagor retains legal fee simple subject to registered mortgage
o Mortgagee has a form of legal security interest by way of registered charge over the
property that is not activated unless mortgagor defaults (TLA 74(2))
• Once the mortgagor pays the loan, they can discharge the mortgage (TLA s 84).
Equitable Interest
• Unregistered (but registerable) and executed mortgage
o Compliance with IA s 126 or oral agreement and PP (Widin)
Rights and Duties of the Mortgagee
• Not bound to comply with a subsequent lease, easement or RC on the land that was created
without Mortgagee’s consent (TLA s 87C)
• Can possess the land and sell in the event of a default.

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