Passing Legal Interest in Land

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This article is a topic within the subject Property, Equity and Trusts 1.

Contents

Required Reading

Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 319-231 [4.47-4.49].

Introduction

Note: the article Contracts For Sale of Land dealt more with the bare basic requirements of a contract for sale of land and how equitable interests may transfer even if some of the bureaucratic requirements (conveyance, registration etc) discussed here are not satisfied. This article deals with how legal interest is transferred under the common law.

[1] The requirements for passing a legal interest in land differ on whether the land is subject to general law or Torrens title.

  • Torrens title: registration of a duly executed transfer is required to transfer the legal interest in land.
  • Old system: all conveyances or dispositions of legal interest in land (other than will) must be made by deed. The relevant NSW legislation is the Conveyancing Act 1919 (NSW), ss 14, 23B, 23D (2).

Transfer of Land Under the Common Law (Old System)

[2] At common law, a deed was a document that was signed, sealed and delivered. However, these words are not in themselves indicative of a deed. The correct indication is that it was intended to be a deed.

  • The formalities for deed transfer are now regulated by legislation. No particular form of words is required to render an instrument a deed.[3]
  • In NSW, the deed must be attested by a third party.[4] All signatures must be witnessed by the third party.[5]
  • A deed may be delivered ‘in escrow’, in which case it will only take effect upon satisfaction of a condition. Once delivered it cannot be recalled by the person executing it, although if the condition on which the deed is to operate is not performed it will never take effect.

End

This is the end of this topic. Click here to go back to the main subject page for Property, Equity and Trusts 1.

References

Property Textbook refers to Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008.

Equity Textbook refers to Evans, Equity and Trusts, 3rd edition, Lexis Nexis, 2012.

  1. Property Textbook, pp. 319-20 [4.47].
  2. Property Textbook, pp. 320-1 [4.48-4.49].
  3. Xenos v Wickham (1866) LR 2 HL 296. 312; Monarch Petroleum NL v Citco Australia Petroleum [1986] WAR 310, 352-61.
  4. Conveyancing Act 1919 (NSW), s 38.
  5. Mostyn v Mostyn (1989) 16 NSWLR 635.
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