Category: Real Property Law

The Court of Appeal in Whitty v Talia [2023] VSCA 246 has recently considered the principles applicable to severance of a joint tenancy. In so doing, it has provided a timely reminder to practitioners about property law transactions which blend the corporate and the familial.

In resolving the determination of a priority dispute between a beneficiary of a trust and an equitable mortgagee, the Court applied principles regarding “postponing” conduct to beneficiaries (and the rule in Shropshire’s case) and considered the relevance of surrounding commercial circumstances, including the failure to caveat.

Whether description of premises in an agreement for lease sufficiently certain.

The owners of land abutting the Tullamarine Freeway sought damages in the Supreme Court of Victoria for trespass and the relocation of CityLink’s noise wall after it was discovered to be encroaching onto their land. Their case was largely unsuccessful due to the Limitation of Actions Act.

The Court of Appeal has considered the scope of the COVID-19 protections introduced to the Residential Tenancies Act 1997 (Vic) – in particular, the interaction between the deeming provisions (by which certain breaches of leases were deemed not to be breaches during the period of COVID-19) and the regime by which VCAT could make a possession order in respect of residential property. The Court of Appeal found that landlords were not, if rental was not paid during the extended period of the COVID-19 protection legislation because of a “COVID-19 reason”, entitled to a possession order against a residential tenant.

Supreme Court of Victoria adopts flexible approach to determining the date at which damages for failed contract of sale were to be assessed.

In a recent examination of indefeasibility of title as it applies to persons with knowledge of existing equitable interests and volunteers, the Court of Appeal broadened the circumstances in which knowledge of a trust might affect one’s title and reversed the Victorian position regarding the “volunteer exception”.

Dr Kylie Weston-Scheuber and Matthew Harvey examine a recent Court of Appeal decision concerning the requirements for an easement by presumption of lost modern grant. The Court made some interesting observations about the interaction between the doctrine and the Transfer of Land Act, which may be of relevance to future matters where easements are claimed.

Owners Corporations are service providers for the purposes of the Equal Opportunity Act 2010 (EO Act) and therefore are required to make ‘reasonable adjustments’ to common areas for tenants and visitors with disabilities.

In this recent decision, the landlord got the benefit of a dubiously worded outgoings clause. The High Court gave full effect to the parties’ commercial intent to hold that commercial common sense dictated that the tenant would be liable for all outgoings under a long term lease.

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12