Just submitted this 'colourful' assignment :)
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School name: RMIT University
Assignment
Cover Sheet
for
submission of individual and group work
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Course/Unit code
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Assignment number
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Assignment due date
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Group/Session name (if applicable)
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JUST 1137
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1
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25/9/2015
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Course/Unit name
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Program title
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Real Estate Law
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Master of Property
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Lecturer/Teacher’s name
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Tutor / Marker’s name (if applicable)
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Ms Rebecca
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This statement should be completed and
signed by the student(s) participating in preparation of the assignment.
Declaration and statement of
authorship:
1.
I/we
hold a copy of this assignment, which can be produced if the original is lost/damaged.
2.
This
assignment is my/our original work and no part of it has been copied from any
other student’s work or from any other source except where due acknowledgment
is made.
3.
No part
of this assignment has been written for me/us by any other person except where
such collaboration has been authorised by the lecturer/teacher concerned and is
clearly acknowledged in the assignment.
4.
I/we
have not previously submitted or currently submitting this work for any other
course/unit.
5.
This
work may be reproduced and/or communicated for the purpose of detecting
plagiarism.
6.
I/we
give permission for a copy of my/our marked work to be retained by the School for
review by external examiners.
7.
I/we
understand that plagiarism is the presentation of the work, idea or creation of
another person as though it is your own. It is a form of cheating and is a very
serious academic offence that may lead to expulsion from the University.
Plagiarised material can be drawn from, and presented in, written, graphic and
visual form, including electronic data, and oral presentations. Plagiarism
occurs when the origin of the material used is not appropriately cited.
8.
Enabling plagiarism is the act of assisting or
allowing another person to plagiarise or to copy your work.
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Family name
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Given name
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Student number
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Student signature
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Date
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Ngoh
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Huay Ching
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3562502
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Clarissa
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25/9/2015
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Further
information relating to the penalties for plagiarism, which range from a
notation on your student file to expulsion from the University, is contained in
Regulation 6.1.1 ‘Student Discipline’
www.rmit.edu.au/browse;ID=11jgnnjgg70y
and Academic Policy: ‘Plagiarism’ www.rmit.edu.au/browse;ID=sg4yfqzod48g1.
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Assessor’s comments
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Grade
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School date stamp
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(Office use only)
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Contract law
case - Carlill v Carbolic Smoke Ball
Company
Based on the elements of valid contract, Mr Green is
entitled to gain his ownership upon his payment of $5,000 to Mr Blue as the
valid multilateral contract is formed between real estate agent, owner of the
property and the purchaser on 8th October. According to the case law of Carlill v Carbolic Smoke Ball Company[1], the facts stated that:
The Carbolic Smoke Ball Company was the owner of a
medical device, which is called 'The Carbolic Smoke Ball'. The usage of the
device was used to avoid the user from getting influenza disease. The company
advertised with the wordings of whoever whom get the disease would be
compensate with 100 pounds as long as they used the device three times daily
for two weeks. More than that, the company also claimed its reliability for
already had 1000 pounds in the bank to gain the trustworthy of the readers.
However, Ms Carlill, the plaintiff who bought the device and used it, and
unfortunately suffered from influenza. Subsequently, the plaintiff try to
claimed 100 pounds from The Carbolic Smoke Ball Company and mentioned that he
knew the offer made through the advertisement. But, the company argued, inter
alia, that Ms Carlill cannot claim the money because their advertisement is not
an offer at all. Eventually, the case brought up to the court, and The Court of
Appeal (UK) claimed that as the offer is made to the whole world, there is a
clear evidence of the company that they already have 1000 pounds in the bank
account to offer the whole world and the clear promise already delivered
through the advertisement, so the offer had been made by the company, and the
offer was in validity and thus Ms Carlill is entitled to claim for the money.[2]
So, when applying the Carlill
v Carbolic Smoke Ball company case law into the situation of Mr Green, the
'elements of valid contract' above clearly showed that Mr Green has the valid
contract to gain the ownership once the property is deal. Firstly, Pan Pacific
Real Estate Agency (PPREA) already delivered the offer through oral form when
Mr Green met Mr Blue, a real estate agent, and to claim their credibility upon
the property at 8 Chapel Street, the real estate agent ensured with Mr Green
that the property "definitely will bring in rent of $550 per week".
And as inter alia - offer, acceptance and consideration, the act of acceptance
is established when the offeree performs acts which is consistent with the term
of the offer (payment), Mr Green already paid Mr Blue for $5,000, and therefore
the valid contract is formed between three parties. As a result, after upon the
succession of valid contract, Mr Green hold the clear ownership of the property
at 8 Chapel street and could move in on 8th November as he hopes. Nevertheless,
as Mr Rainbow has a tenancy contract with Mr Pink which the lease expired on
5th February annually, which would expectedly exceed the move in date of Mr
Green. Thus, Mr Green could not own the clear possession of the property until
next year February as Mr Rainbow has a contract with the old owner. So, to gain
the clear possession of the property, Mr Green should compromise to two
dispute, which are the fencing issue with Mr Purple and the further tenancy
negotiation with Mr Rainbow. Under the Common Law Act 1961, a bona fide
compromise to a dispute represents for an exception to barred an existing
contractual obligation to support promise in return: Ballantyne v Phillot[3]. The reason is abandoning
a legal right is regarded to be a good consideration for a promise. So, by the
time Mr Green move into the property, he can find a land surveyor to resurvey
the land boundary to determine the fence belongs to whom and further negotiate
with Mr Rainbow regarding the termination of the lease once his lease is
expired. On the other side, unless the final decision of the land surveyor finalized
that the fence goes to 8 Chapel Street Property, then only Mr Green could get
the clear possession of the property.
Property law case - JA
Pye (Oxford) Ltd v Graham
As we know, possession is a legal concept, which stand
for both control and an intention to possess something. In the law case JA Pye (oxford) Ltd v Graham[4], a farmer had been using a
piece of land for grazing and he hold a 'grazing agreement' with the owner.
Until later, the owner refused to renew the agreement once it expired, but then
the farmer continue used the land for grazing and grow hay until he passed away
14 years later. The owner then sued the farmer for recover possession, but he
lost in the legal battle because the limitation period had expired. As a
consequences, this case law shows a few adverse affect in the law. Firstly, the
type of control of possession depends on the type of land being controlled.
Secondly, possession without permission has it adverse affect even if the owner
does not in use of the current land. Thirdly, there is no requirement that the
adverse possession intend to possess the land if there is no sufficient
interest for him to possess the land.[5]
Therefore, when
applying this case law into Mr Green's situation, he can actually have his
rights for not extending the lease with Mr Rainbow if he wants to gain the
clear possession of 8 Chapel Street. The reason is because firstly he has the
control of possession at the backyard, which he is entitled to gain the clear
ownership of the property which eventually lead to clear possession on the
following year on 5th February. More than that, if Mr Rainbow possess the
backyard without permission, he will have certain adverse affect on him even if
Mr Green does not use that certain part of land. Thirdly, Mr Rainbow has no necessity
to possess the land which has no certain interest to him.
Competing
Property Interest - Nemo Dat Quod Non Habet
It is common for more than one person to have for the
same property, such as the joint owners of a house or the shared fence of a
property. Most of the time, these things are never get into dispute. But,
sometimes people claim property rights belongs to own self. Every system of law
need legislation that offer clear solutions to the dispute between parties. Competing
rules help people to avoid breach of law and help people save time and money
for litigation. They are often called priority rule as they determine the
priority of competing claims to things. The principle which deal with a
priority dispute involved in legal property rights called Nemo Dat Quod Non Habet. In short form of this principle, we named
it as 'Nemo Dat, it means that people continue to have their legal property
rights until they choose to abandon them or someone can't give what or she
doesn't have. For example, if a thief steal a bicycle and sells it to another
party, then the party who purchase cant own a legal ownership of the bicycle
even if he/she paid for the exact market value and had no suspect that the
seller was illegally selling.[6]
Therefore, by applying the principle of Nemo Dat into Mr
Green's and Mr Purple's situation, Mr Green is the innocent purchaser, as he is
paying $650,000 for market price for the property, but then he has to bear the possibility
of losing part of the property (fence), so from the aspect of competing property
interest, Mr Green should not be able to have clear possession in this aspect. In
this circumstance, in the maxim of innocent purchasers, the sufferers or the
innocent purchasers need to bear the loss. Moreover, Mr Blue, as a real estate
broker, is also a part of innocent party (or the innocent converter) as the competing
interest dispute is not involve with him, however as a part of real estate professionalism,
he should advice Mr Green about the possibility of future compensation of the
gate which may not be worth for Mr Green to pursue the property, and by right,
he should not get professional fee from Mr Green as that is not ethical.
Competing Property Interest
- Estoppel
In addition, Estoppel is another principle which can be
apply to a wide variety of issues which included monetary transactions,
property rights and so on, and is particularly useful in Mr Green and Mr Pink's
situation. In common law, Estoppel is mean to represent a fact which a seller lead
a bona fide committed to purchase his/her product; this principle may apply to
sale of property rights. [7]Under the Goods Act 1954 (ACT), the legislation
states:
'Subject to this Act, where goods are sold by a person
who is not the owner of them and does not sell them under the authority or with
the consent of the owner, the buyer does not acquire a better title to the
goods than the seller had.'[8]
Thereby, in the situation of Mr Green and Mr Blue, Mr
Blue is representing Mr Pink to sell the property, and in fact, the existence
of fencing boundary issue makes Mr Blue does not has the authority to help Mr Pink
sell the property or to do the conversion of the property between two parties
until the competing property interest problem is fix.
Last but not least, the issue of 'competing property interest'
also occurred in the facts between Mr Pink and Ms Brown. As the fact stated, Mr
Pink and brown got married on 1 of September and legally they are known to be
spouse, however the fact did not indicate that neither Ms Brown has the joint
ownership in the property or her name is listed in the property title, and with
the additional information in the fact that ms Brown is paying Mr Pink $125
every Friday, so the legal presumption is that Ms Brown has no joint tenancy
with Mr Pink as she is not entitled to the rents and profits in the property,
but she is just a common tenant in the property with the record of being
married to Mr Pink. So, logically speaking, Ms Brown has no right in making all
decisions including the sale of 8 Chapel street, as she is not a joint tenant
even she is married to Mr Pink. Ultimately, it still an option and decision of
Mr Pink to sell out the property as the fact stated that he is the owner of 8
Chapel street.
Conclusion
In the conclusion, there are two circumstances of clear
possession and ownership as the decision can be vary according to different laws.
In the relation to contract law, Mr Green would be able to take clear ownership
but not clear possession on 9th November, but would be able to gain both
clear ownership and clear possession on 5 February on the next year upon the
lease is expired. However, the clear ownership of Mr Green would further lead
to two consecutive problems, which are the fencing boundary problem which
relating to the new tenant (Mr Purple) and the new negotiation with Mr Rainbow
regarding the lease should be extensible or not and he has to bear the risk of
Mr Rainbow might continue to use his property without permission as he has the spare
key to the backdoor. On the other hand, by looking at the ‘competing property
interest' in the aspect of property law, Mr Green is not possible to take clear
ownership but not clear possession due to the fencing dispute arose before the
property is sold out, in this case, the legal presumption shows that Ms Brown
has no entitlement in deciding the sales of 8 Chapel street property, so it is
up to the decision of Mr Pink to sell out the property, and hence once he sold
out the property, Mr Green still takes the ownership of 8 Chapel street
property at the end. But then he can't have the clear possession due to the the
principle of Estopel and Nemo Dat Quod Non Habet, the two factors which cause
Mr Green lost his clear possession of the property upon purchasing the property
with market value.
[5] Robert Chambers, An
Introduction to Property Law in Australia, (Thompson Reuters, third
edition, 2013), 79
[6] Robert Chambers, An
Introduction to Property Law in Australia, (Thompson Reuters, third
edition, 2013), 449
[7] Robert Chambers, An
Introduction to Property Law in Australia, (Thompson Reuters, third
edition, 2013), 453
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