Property and Trusts

 

Question 1
Ms Williams, a client of the firm in which you are working as a newly-admitted solicitor,
seeks your legal services.
She operates an eco-retreat business on a southern Queensland property she leases from
Xanadu Pty Ltd.
In 2010 Mr Young, the sole director of Xanadu, purchased the property and built six ecocabins
and a small house for the eco-retreat operator. He also owns the adjacent property
on which he operates his business as a motor vehicle mechanic.
In June 2011, Ms Williams and Xanadu entered into a lease agreement in respect of the
eco-retreat property. The written lease was dated 27 June 2011 and was for five years.
There were two options to renew, each of five years. The lease was registered at the Title
Office over the freehold title to the land. Early last year, Ms Williams was still enjoying
operating the business and exercised the first option.
However, Ms Williams now wishes to sell her eco-retreat business so that she can move
interstate to care for an elderly parent. She has been approached by a prospective
purchaser, Mrs Underwood.
Ms Williams seeks your advice about a number of issues. Mr Young’s business has greatly
expanded and he is now working much longer hours. People staying at the retreat are
complaining about after-hours noise from the machinery used by Mr Young and comments
about the noise have appeared on online accommodation review sites. Ms Williams is
worried the business sale price will be affected as a result.
Last week, Ms Williams attempted to discuss the sale and the after-hours noise with Mr
Young. He said that:
 his business practices were nothing to do with her;
 as her landlord he had a right, however, to have a say about her eco-retreat business
and that he would not agree to the sale of the business to Mrs Underwood as Mrs
Underwood owed a number of outstanding debts to local businesses, including his;
and
 if Ms Williams did sell, and no matter whom she sold to, he would not allow the further
option to be exercised as his retirement plan included retaking possession of the ecoretreat
in 2021.
Before any further contact with Mr Young, Ms Williams has asked you to provide her with
written advice as to:
 the issues of concern she has raised with you;
 including, specifically, how she may ensure the sale of her business to Mrs
Underwood as a viable entity;
 possible remedies available to her; and
 any other Torrens system property law matter regarding her legal position generally
requiring advice.
(30 marks)
3
Question 2
Read the facts in Black v Garnock [2007] HCA 31.
Discuss the protections of priority provided by the Land Title Act 1994 which might be
relied upon by the parties if the same factual situation were to arise in Queensland in 2017.
(20 marks)
Question 3
When, and why, was section 83A of the Land Title Act 1994 (Qld) enacted? Include in
your answer a discussion of relevant case law.
(10 marks)
Question 4
Happy Home Bank is mortgagee in possession of a one-acre undeveloped block of land
on the outskirts of Walfield in Queensland. In the exercise of its power of sale, is there a
legislative requirement imposed upon the bank to disclose in its advertising a registered
easement benefitting the land? If so, what property law principles must the bank observe?
(10 marks)
Question 5
As joint tenants, Mr and Mrs Abbott have been owners of their home in a suburb of Walfield
for 20 years. It is on a quiet street and backs onto parkland owned and maintained by the
Walfield City Council.
Five years ago, to enable greater enjoyment of their property Mr and Mrs Abbott built a
large deck extending across the boundary between their block and the parkland. It is a
wooden deck on steel posts with concrete footings. One quarter of the 20m2 deck extends
across the boundary.
Mrs Abbott wishes to ensure her husband has financial security. First, as joint tenants,
last year they granted Bosun Energy an authority (a ‘geothermal tenure’) to explore for
geothermal energy in a 5 metre-wide corridor of their land leading down to the boundary
with the parkland.
Second, as joint tenants and transferors, the Abbotts are transferring the entire ownership
to Mr Abbott as sole registered proprietor of the fee simple.
You are a newly-admitted solicitor acting for the Abbotts in respect of the transfer. The
Form 1 Transfer you have lodged has been requisitioned, requiring information in respect
of the boundary between the Abbotts and the parkland.
Mr and Mrs Abbott seek your advice about:
 how to ensure the transfer goes ahead;
 what actions might be taken, if any, by the Registrar of Titles and Council; and
 whether the transfer affects Bosun Energy’s right to explore on the land.
(30 mar

 

 

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