FNSTPB505 Apply Legal Principles In Property Law, Mentor Education, Australia

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PROJECT:

1. Research the legal aspects of property law as it relates to this property including:

a. The legislation, regulations and codes of practice

b. Different types of appropriate property transactions

c. Relevant legal principles applying to property matters

Answer: The property legislation in force at the respective state would be applicable in this regard along with the common law on property since Australia is under the ambit of British monarchy as far as the Commonwealth is concerned. Additionally the rules pertaining to conveyance in Australia would also be applicable as far as transfer of property is concerned. The property transaction involves the transferring of the rights of the property from one person to another through an appropriate procedure in an effective and efficient manner. It implies the sale and purchase of property where one party is the vendor and the other party is the purchaser. Such transactions are basically pertinent to real property. Tangible personal property transactions imply the transactions pertaining to various kinds of chattels such as machinery, furniture, tools, leased items and improvements related to leasehold. In such aspects also, the concept relating transfer of property between the buyer and the seller applies (Bridge, 2015). The legal principles in the matters related to property law would be based on the statutes and legislations applicable as per the jurisdiction along with the doctrines with regard to property law. It would also include the precedents as far as the jurisdiction of the common law of England and Wales is concerned. It also implies the relevant rules and frameworks related to property law. The codes with regard to property law as applicable also imply the legal principles as far as the standards and parameters are concerned accordingly with regard to the property to be purchased.

2. Analyse the legal issues and risk for Betty including:

a. Areas of risk

b. How legal issues impact on Betty

c. Implications of risks for Betty

Answer: The risks with regard to the legal issues for Betty imply the complexities involved in the contract of the property to be purchased by her. It also implies the bureaucratic hurdles involved as far as the payment of stamp duty at the Office of State Revenue at the respective state is concerned by her as she is the purchaser if the market price of the property is in excess of five thousand five hundred and fifty dollars. Title search must also be conducted in a proper and appropriate manner in order to obtain the plan number and title reference number of the property along with the identification of the authenticity of the sellers of the property. The mortgage has to be entered into with the bank if Betty plans to take a loan with regard to the purchase of the property. Even though Betty is entitled to terminate the contract with regard to the purchase of the property taking account of the cooling off period of five business days as per the rules of Australian conveyancing, the vendor of the property is at discretion of the imposition of a termination penalty. The risks also imply whether safety switch and smoke alarm have been installed in the property or not. She would be at risk if the property price is beyond her expectations along with the ambience and infrastructure being unsatisfactory after the purchase of the property has already been made. The agent with regard to the property must not also misguide her thereby leading to various kinds of legal complexities. The legal representative of the seller must also be intimated in order to avoid risks. The risks also involve the special conditions in the contract, most notably, searches of the building records and reports.

3. Apply the current statute, common law and equitable principles in relation to property law that are relevant to Betty's circumstances

Answer: The current statute would be applicable with regard to the state of Australia where the property is being purchased by Betty taking account of the concept of territorial jurisdiction. The common law principles would also be applicable in terms of precedents of the court as per the jurisdiction along with the ownership rights as she is purchasing the property. The aspect of real property is applicable as far as the purchase made by Betty is concerned. The personal property in this aspect would include chattels in the property premises in which the common law principles would apply (Whitman et al., 2019). The equitable principles in this aspect would apply as per the directions made by the courts of equity having jurisdiction as established by the law with regard to acts or omissions as far as equitable remedies are concerned for Betty. The equitable principles mainly involve damages pertaining to money. In contracts, the main equitable principles include specific performance, reformation and rescission. As there would be contract of property between Betty and the vendor, such equitable principles would be applicable taking account of the facts. The respective statute regarding arbitration is applicable if any possible dispute related to the transfer of property is to be resolved by arbitration.

4. Present a recommendation and advise Betty after considering her circumstances and relevant property laws.

Answer: Taking account of the facts and circumstances, it is recommended that Betty should proceed further with the purchase of the property if she has the financial capacity for the same. The ambience of the property also seems to appeal her tastes and preferences as far as salubrious living conditions are concerned. The agent must brief her about the property in a proper and appropriate manner so that she is convinced to purchase the property accordingly. She must also comply with the laws relating to property as applicable in the state along with the rules related to Australian conveyancing so as to avoid the issues and complexities in terms of purchasing the property. The aspect related to safety and security of the surrounding areas must also be taken into account by Betty. Purchasing a home as per the desired tastes and preferences is an extremely valuable investment for a person as far as happiness and satisfaction are concerned. It is also suggested that Betty must go through the appropriate brochures and other relevant information materials with regard to the concluding upon the decision pertaining to the purchase of the property. It would also lead to independence on her part as she would no more be liable to the landlord as she is staying in a rented apartment at present above the place where she owns a business as per the fact that she has an Australian Business Number.

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WRITTEN ACTIVITY

1. Explain each of the following as they relate to property law:

a. Basic principles, current statute, common law and equitable principles

b. Roles and responsibilities of key organisations

c. Constitutional considerations

d. Separation of powers

e. Basic principles of the law of torts, particularly relating to negligence and negligent misstatement

f. Courts and regulatory bodies

Answer: The basic principles with regard to property law imply the legal frameworks and guidelines to be followed in terms of transfer of rights of the property from one person to another on a temporary or permanent basis. The current statute implies the applicable act with regard to the governing of the aspect relating to the transfer of property as far as the jurisdiction is concerned. The common law involves the precedents set by court in various cases relating to the laws of property which are to be referred to be the courts while concluding upon decisions pertaining to property matters As aforesaid, the equitable principles include specific performance, reformation and rescission taking account of the laws pertaining to contracts. The key organizations in the form of agents and local authorities along with law firms must play an important role in the ensuring of the smooth transfer of the property without any major issues. The courts must take into account whether any legislation pertaining to property is in contravention of the constitution. As a result, constitutionality and unconstitutionality of such kinds of provisions would be implied accordingly. As far as the concept of separation of powers is concerned, the judiciary would look into the matters pertaining to the disputes of the property. The legislature would be entrusted with the making of the laws of property. The executive is entrusted with the enforcing of the property law by assenting upon it. The principles related to law of torts in terms of property most notably imply trespass along with detinue and conversion. Any tenant or visitor of property being injured would result in negligence on part of the owner of the property. Carelessly making a statement would involve negligent misstatement. The courts are entrusted with the making of decisions in property matters as per the rules of the civil procedure applicable in terms of filing along with limitation laws. The regulatory bodies are the authorities in terms of validating the transfer of the property.

2. Outline how laws are enacted and their underlying policy aims

Answer: The laws are enacted as a result of the receipt of assent by the head of the state concerned. They are drafted by the statutory draftsmen concerned and presented before the legislature as a bill and subsequently undergo readings by the members of the legislature prior to the receipt of assent. The policy of the laws must imply that they are in the interest of equity and fairness as far as transfer of property is concerned.

3. Choose two laws and then explain how those laws may be interpreted by existing common law and equitable rules and applied to property laws.

Answer: In terms of property, the two laws which are opted include land laws and intellectual property laws. They are to be interpreted as per the rules governing statutory interpretation. As far as Australia is concerned, the Torrens system has been adopted with regard to registration of land. As a result, the states of Australia have enacted legislations relating to real property accordingly whose interpretations are as per the rules governing the interpretation of statutes. The Torrens system implies the records to be maintained through land titles register. The intellectual property laws imply the legislations pertaining to patent, trademark and copyright which are to be interpreted as per the rules governing statutory interpretation.

4. Briefly discuss each of the following legal aspects of personal property law:

a. Intellectual property law

b. Patents

c. Copyrights

d. Trademarks

e. Personal property securities law

Answer: The concept of intellectual property law implies the rights to be availed by people for their innovation and creativity in an intangible manner. They mainly include patent, trademark and copyright as far as the laws pertaining to personal property are concerned. The objective of the intellectual property implies the encouragement for intellectual goods (Drahos, 2016). The concept of patent implies the rights to be claimed for inventions. In such instances, the aspects related to novelty, inventive step and industrial application are to be taken into account. It should be noted that such kind of work has not been carried out before. The concept of copyright implies the rights to be claimed for art works such as literature, music compositions and video broadcasts along with movie themes. The originality of such kinds of works is to be indentified and determined in a proper and appropriate manner without any major issues. The concept of trademark implies the symbol to be ascribed for goods in order to determine its uniqueness and validity as far as its authenticity is concerned. It plays a massive role in the distinguishing f goods in a proper and appropriate manner. The concept related to personal property securities law implies the security interests in terms of personal property. The relevant provisions enshrined and envisaged in terms of the legislations pertaining to personal property securities play an extremely important role in this aspect.

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QUESTIONS

1. Identify 8 property law matters that clients may need advice on.

Answer: The property law matters where clients seek advice include agreements and deeds relating to sale and purchase, lease, leave and license, gift deed, granting of intellectual property rights. It also involves filing in courts in case of any dispute and the notarization of documents related to the rights of the property.

2. List 5 aspects of real property law that you will need to consider when assisting a client and give a brief description of each.

Answer: The aspects of real property law with regard to the assistance for client include the laws which are applicable in favor of the client, precedents which can be refereed to for the benefit of the client, codes which are to be followed with regard to transfer of property, the procedures involved in the legalities for the benefit of the client and the rules involved in conveyancing for the welfare of the client.

3. Identify at least 4 examples of property transactions.

Answer: The main kinds of property transactions imply the transfer of ownership rights from one person to another with reference to real property, personal property, intellectual property and the aspect related to renting as applicable as far as the circumstances are concerned.

4. Briefly discuss each of the following relevant legal principles that apply to property matters that are relevant to client circumstances:

a. Contractual obligations.

b. Title encumbrances.

c. Warranties.

d. Other disclosure obligations.

Answer: Contractual obligations are the duties to be fulfilled by the parties to the contract. Title encumbrances imply the restrictions involved in the ability of the owner in terms of transferring the title of the property. Warranties imply the claim for damages by the aggrieved party from the party who is in breach of the contract. Other disclosure obligations imply the obligations which are to be followed in terms of the disclosure of the documents.

5. List 4 areas of risk that may apply to the application of law in property matters.

Answer: The areas of risk imply the complexities involved in property law as far as its understanding is concerned, the tumultuous procedures of the court as far as litigation is concerned, the bureaucratic hurdles involved in the paperwork and the execution of the judgments of courts accordingly.

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6. Identify 3 business organisational structures and give a brief description of their basic legal concepts.

Answer: The business organizational structures with regard to basic legal concepts imply the partners in law firms, associates in law firms and legal departments of companies.

7. List 3 legal entities and give a brief description of some of the relevant risks and responsibilities they may face.

Answer: The legal entities include person, company and organization. There common responsibility is to act in an ethical manner and avoid indulging in malpractices. The main risks involved pertaining to them includes finances and their management in a proper and appropriate manner along with the nature of the client and the parties involved.

8. List 4 different approaches to evaluating risk.

Answer: The four approaches involved in the assessment of risks include the predictability of the factors, the circumstances involved in the case, the identification of the complexities involved in the applicable property law and the hurdles involved in the transfer of the property.

9. Once you have collected all available information from a client what is the best way to analyse it? Please describe this method.

Answer: The best way to analyze the information is to conduct intensive legal research with regard to he applicable property law as far as the specific provisions are concerned. It also involves the looking for judgments which would help the client to derive a comprehensive solution as far as the merits of the case are concerned.

10. What are 5 steps you could take to interpret, analyse and process information to obtain required knowledge relevant to the client?

Answer: The steps include research on legislations and judgements, holding of conferences and meetings with barristers and solicitors, obtaining the necessary documents, preparing the case accordingly in favor of the client through drafting along with the filing of the case which would be heard by the court.

11. Who might you consider a specialist when needing advice on commercial and property law and how can they assist you?

Answer: Experts would involve the ones who have prior experience in commercial property matters as far as the various areas of commercial property are concerned. Such a person must have derived comprehensive solutions for the clients as far as their satisfaction is concerned. Such person would assist in the appropriate procedure to be followed.

12. In what manner might you present information to a client?

Answer: Information to the client is to be presented in an ethical manner without any kind of deception such as misrepresentation, presenting of false information and overcharging them.

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13. List 3 ways you can continuously review client's circumstances.

Answer: The ways to delve into the circumstances of the client imply the factors resulting in changing of the scenario of the client, being in touch with client on a frequent basis and the events which are beyond client's control.

14. If changes need to be made, list 3 steps in the process of how to go about enacting those changes.

Answer: The ways relating to the enactment of changes imply the vitality of the changes with regard to the case, the sensitivity of the client and the pleading before court to take account of the changes as per the merits of the case.

15. How might you ensure you maintain current legal knowledge?

Answer: The current legal knowledge is to be maintained by taking account of the new legislations along with the amendments to the existing legislations and the recent judgements (Means, 2017).

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