LLB220 Study Guide - Final Guide: Unconscionability, Inter Vivos, Fee Simple
INTRO TO EQUITY AND TRUSTS
Inter vivos
- Old system
Deed of conveyance
Conveyancing Act 1919 (NSW) s
23B
- Torrens title
Registration: Real Property Act
1900 (NSW) s 41
Wills
- In writing, signed and two
witnesses
- Succession Act 2006 (NSW)
Section 41 of the Real Property Act - no
dealing is effective unless registered
Conveyancing act ss42 intention to part
with estate, s47(2) presumed granting the
whole estate, words of limitation rebut that
presumption
Equitable maxims
- Where the equities are equal, the
first in time prevails
- Equity will not assist a volunteer
- Equity looks on that as done which
ought to be done
- Equity will not allow the Statute of
Frauds to be used as an instrument
of fraud
- He who comes to equity must
come with clean hands
- Equity will not suffer a wrong
without a remedy
Remedies
- specific performance
- injunction
- equitable compensation
- equitable damages
- account of profits
- equitable proprietary remedies
Trusts
Central to equity
A legal relationship characterised by the
holding of property by its legal owner (the
trustee) for the benefit of another (the
beneficiary or beneficiaries)
The beneficiary has an equitable interest
Creation of equitable interests in land
May be express – and then conveyed like
other interests in land:
- “To Aaron in fee simple on trust
for Bert in fee simple”
- Conveyancing Act s 23C
But also:
1) Via trusts arising by operation of
law;
2) Via an enforceable contract for the
sale of an interest in land; and
3) Via principles of estoppel.
Types of Trusts
Express
- Creator/settlor
- A person can be both trustee and
beneficiary, as long as not the sole
beneficiary
Resulting
In some situations, equity presumes a trust
was intended
This presumption can be rebutted:
- Purchase in another’s name
- Purchase price resulting trust
- Presumption of advancement
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Old system equitable damages account of profits equitable proprietary remedies. Section 41 of the real property act - no dealing is effective unless registered. Conveyancing act ss42 intention to part with estate, s47(2) presumed granting the whole estate, words of limitation rebut that presumption. A legal relationship characterised by the holding of property by its legal owner (the trustee) for the benefit of another (the beneficiary or beneficiaries) May be express and then conveyed like other interests in land: To aaron in fee simple on trust for bert in fee simple . But also: via trusts arising by operation of law, via an enforceable contract for the. Where the equities are equal, the sale of an interest in land; and first in time prevails. Equity looks on that as done which ought to be done. Equity will not allow the statute of. Frauds to be used as an instrument of fraud.
