FNSTPB505 Apply Legal Principles in Property Law, RMIT University, Australia

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Question 1: Derek has purchased a property in Australia and need advice. Mr. Davidsion has asked you to prepare a letter to Derek, to be approved by Mr. Davidsion, in response to the following questions asked by Derek:

Answer: Analysis Of The Property Purchased By Derek:

Memorandum

To: Mr Davidson

From:

Date:

Subject: Analysis Of The Various Aspects Of Law In Relation To Property Purchased By Derek

I'm writing this to inform you regarding the various provisions as contained in the law that governs the purchase of property by individuals in Australia.

The answers below have within itself the law governing property along with the paper work which is required. When a land is bought in Australia, a Torrens title is received which basically means the land is freehold reflecting the fact that the land is bought along with the property or only the land is bought.The laws in relation to property being purchased along with business partners in joint names and the concepts of easements and covenants. Moreover, an analysis of the law outlining the powers of the bank in case where the buyer is unable to pay the mortgage and the provisions of the law where property is used as investment is being analysed.
Please let me know if there is question in relation to the below mentioned answers.

a) What laws govern property ownership in Australia? Do I get any paperwork to prove I'm the owner?

Answer: Laws Governing Property Ownership In Australia: The law that governs the ownership of property in Australia is contained within the Australian Property Law that outlines the system of law that helps in the regulation and the prioritisation of the rights, interest and the responsibilities of the individuals in relation to the property being bought by them. It is to be noted that each state of Australia has their own law in relation to the property being bought by them and for analysis of the state laws there is a need to take expert advice from the solicitor or a conveyancer. The country Australia have system which is robust and comprehensive in terms of registration of property and the provisions that regulates the extent of ownership also. The person buying the property which in the given case is Derek, the purchaser obtains a title of ownership known as Deed of Registry which is obtained through paying extra fees as stamp duty charges to the government (Australian Government,2019).

The ownership of the property can be proved through the registered deed named as Torrens title wherein a title of Torrens i.e. freehold is received having name of purchaser on it. However, in cases where these documents are not available then there is unnecessarily extra steps to prove the same.

b) I may want to purchase a second property with my business partner in the future. How should our names be registered?

Answer: Purchasing Second Party With Business Partner & The Names To Be Registered: Buying a second property in a name which is already registered against a property is common and is possible. However, in case a purchaser is purchasing the property in joint names with its business partner, then the best possible action that can be taken is to get the registration of the property done under a single name which can be the name of the business. Joint names for a property registration are usually common in case of family relationships viz. spouse, brother-sister, etc. The registration of the property under a business name helps the partners to claim their shares easily in case of any issues and problems. The legal name of the entity in which both Derik and its partner are into have to be registered on the legal documents of the property. 

There are many benefits and advantages of getting the registration of the property done like this and the major one is avoiding dispute and any third party haggles. Moreover, according to the rules of the property law, the property cannot be on joint names of individuals other than family members. However, the partners can buy properties in the name of the organization or their business.

c) I've heard about easements and covenants. What do these things mean? Am I bound by existing easements and covenants if I purchase a property?

Answer: Concepts Of Easements And Covenants& Its Application On Derek: The term easements is for a right which nonpossessory in nature wherein using the real property of another is restricted. It basically means the right of constitution of an interest which is legally enforceable with respect to the property wherein a piece of property is used and benefit from the same is arrived and there exists a restriction on the use of the property of the neighbours. This concept helps and allows the use of property more conveniently since there is no interference of the neighbouring properties. There are majorly four kinds of easements namely right of way, easement of support, easement of air and light and rights in relation to artificial waterways. Easements provides paths for people who poses two or more than two properties. As held in Ellenborough Par [1956] there is a requirement of minimum two parties for application of the principal of easements. Covenant in terms of law of property, means the conditions that are ancillary with the use of land. It outlines the duties and responsibilities along with restrictions if any that comes along with the purchase of the property. 

In the case of Derek, the provisions of easements and covenant are applicable since the property purchased by him is governed by the property law of Australia.

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d) I can't afford to buy the property outright. This means I will need to take out a mortgage. What powers dose the bank have if I can't pay the mortgage and what rights do I have?

Answer: Property Purchased On Mortgage: There can be a case where buying the property at outright is not possible due to unavailable of liquid funds at the time of purchase. In that case the buyer has an option of buying the property on mortgage where he takes loan from the bank by mortgaging the papers of the property to the bank. In case, the buyer fails to pay the mortgage the bank can sell the property on auction and can get its loan repaid from the sale proceeds. For the buyer, the remedy is not much. The buyer can just request the bank to provide him with some extra time for the repayment. However, it is to be noted that for applying for mortgage is tough for both resident and non-resident of Australia since the criteria for lending is strict in case of the banks. 

The loan goes into default due to failure in payment of mortgage. The bank have the right to evict the property and sells the property.

e) If I use this property as an investment and rent it out to a couple, do I have to comply with any laws? What rights do I have as a landlord? Do the tenants have any rights or obligations?

Answer: Compliance In Case Of Using The Property As Investment: Investment on property is among one of the ways which is considered as best for the creation of the wealth but succeeding for the same again depends upon many other factors other than merely selecting and locating the property. Property investments involves people that are namely landlords (owner of the property) and the tenants (in this case couple). There are many responsibilities of the landlords along with the tenants. The protection of the landlord and the rights of the tenant varies from state to state (Home Loan Experts, 2019). For renting out the property to the couple, the landlord needs to enter into an agreement with the tenant on a stamp paper which is legally valid stating the details of the tenant and the landlord. The agreement shall also constitute the agreed rent and many other provisions viz. responsibilities in case of wear and tear of the property. 

The rights of landlord are many viz. setting the rental rates of the property, chasing for checks on rent receivable, getting repair of the property done by the tenant in case of any wear and tear, checking up on the rental history of the tenant using the past database, etc. The rights of tenant are obtaining the rent agreement which is valid, the property on rent should be clean, safe and vacant, etc.

Question 2: Has Isobel infringed any IP laws?

Answer: IP Laws In Australia & Obtaining Trademark For Protection Of Business: The Australian Intellectual Property Laws are in place containing principle and provision with respect to take actions against various situation. The Australian IP Laws has been designed by the regulators in such a way that there is given preference to innovation and the business can be protected so that it can gain the maximum out of the competitive advantage. There is a well-developed legal system that exists in Australia where in the provisions are such that they protects the intellectual property of businesses as well as that of individuals. A trademark can be used by businesses as their tool of marketing. This is because the trademarks of the businesses and individuals are required to be registered with the government as the registered trademark will provide with the protection legally and will further prohibit others from using the brand. The protection is at national level of the trademarks issued by the government. In case of Derek writing a fiction novel and giving to Isobel for proof reading and further uploading the same at the website without the signature of Derek leads to the prohibition of the provisions contained in the IP laws of Australia for which Isobel will be penalised. Had Isobel not done so, no infringement of IP Laws would have occurred. 

Derek can obtain trademark to protect his business name from being copied. He should obtain trademark on the logo being designed by him which is so far being analysed and considered unique as per the case study.

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Question 3: Derek now is looking to sell his 3 bedroom house. He has some sentimental and valuable items that he wishes to take with him.

A. Explain the difference between fixtures and fittings to Derek and outline how he can protect himself from any possible claims which could delay the property settlement.

Answer: Selling Of 3 Bedroom House By Derek:

Difference Between Fixtures And Fittings & Claims For Delay In Property Settlement: The items that are fixed in nature are termed as fixtures. The fixtures are attached to the property whereas the fittings are items that are not attached with the property and are rather fitted using nail or a screw. The fact that the fixtures that exist in a property are included while sale of the property unless there is specific provisions for the same whereas for fittings the seller needs to state that he himself is leaving behind it. It is recommended that before making any offer to the purchaser, the buyer should have an inspection conducted so that he becomes familiar with the condition of the property along with the fixture and fittings that exists. Property Settlement basically means the finalisation of a transaction in between a buyer and seller relating to real estate. In case if Derek wants to protect himself from any claims that could delay his property settlement he should clearly identify the fixtures and fittings in front of the buyer so that the buyer is aware of the fact that which is the items the seller is going to take with him and which items he would leave with the house.

B. Identify each of the following items as a fixture or fitting and discuss what their status would be:

a. Security system

Answer: Security System: Security system should be considered as fixtures. This is because this is a system that protects the property through installation of cameras and other security systems. Although a seller can beforehand specify the buyer that this will be taken away with him but that would again be very unreasonable. Therefore, security system are purely fixtures and is permanently attached to the property through the application of screws, nuts and nails.

b. Large TV bracketed to a wall

Answer: Large TV bracketed to a wall: Televisions are usually considered as fittings in spite of the fact that they are wall bracketed. This is because TV needs support and therefore they are bracketed to the wall. This bracketing to the wall will not make it fixtures. So, Large TV bracketed to a wall is fitting with the seller can take away with him. He only needs to repair that area before selling the same to the buyer.

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c. Spa bath

Answer: Spa Bath: Spa Bath should be considered as fixtures. This is because this is a system that is installed in the washroom areas for setting comfort while taking bath. Although a seller can beforehand specify the buyer that this will be taken away with him but that would again be very unreasonable and will damage that particular area. Therefore, spa bath are purely fixtures and is permanently attached to the property through the application of plaster and cement along with nails, nuts and screws.

d. Fruit frees & pot plants

Answer: Fruit frees & pot plants: These are usually fittings because they can easily be taken away. But if these are taken the property's appearance is impacted at a great extent and so the seller should leave this behind. All these are therefore left at the property.

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