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Week 5 - property law
Foundations of Property Law (LAWS12065)
Central Queensland University
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Verity has dual nationality and holds an Australian passport and a Turkish passport. She keeps both passports in a biscuit tin under her bed along with her rate and electricity bills, her electoral registration card, birth certificate, driver licence, a credit card, the certificate of title to her property at Tewantin and other documents. She is the sole registered owner of the Tewantin property, which is unencumbered (ie, no mortgage).
Verity decides to take a 3 month holiday and visit her family in Turkey. She travels with her Turkish passport, leaving her Australian passport behind. She arranges for her younger cousin Carmen to house-sit her Tewantin property for her while she is overseas. Carmen discovers the biscuit tin under the bed and opens it.
A week later, Carmen makes an appointment with Godfrey, the loans manager for YouBeaut Loans, which advertises ‘low doc’ loans. She introduces herself as Verity, and produces the certificate of title to Verity’s property. Godfrey thinks it a little odd that she shows no interest in negotiating for a discounted rate of interest. He approves her application for a $200, loan, to be secured by a registered first mortgage on the Tewantin property. He phones her later to advise the loan has been approved, and that the loan agreement and instrument of mortgage will be posted out to her. He prepares an instrument of mortgage which specifies the loan sum and acknowledges receipt.
When the documents arrive, Carmen forges Verity’s signature on the loan agreement and on the instrument of mortgage. She finds a letter in the biscuit tin signed by Verity’s solicitor and uses it to forge his signature as witness to Verity’s signature on the documents. She then takes a selection of documents and cards from the tin, and restyles her hair to look like Verity.
When she attends the appointment, Godfrey is in a hurry to complete the transaction. He glances at Carmen and at Verity’s photo on the Australian passport. He notices that Verity’s signature on the mortgage is different to the signature on the loan agreement, but puts this down to nervousness. He comments that she looks a little younger than her passport photo, and they share a joke about how nobody looks their best in a passport photo.
When Verity returns to her home, she finds that Carmen has gone. A month later, she receives a 30 day default notice from YouBeaut Loans, but ignores it because she thinks it must be a mistake. When the mortgagee notifies her that it will exercise its power of sale, she discovers that her name has been forged on the registered mortgage.
Advise Verity whether the registered mortgage to YouBeaut Loans is enforceable as an interest in her land.
Is it a 185 1 a question, undertaken a lot of steps pretending to be verity, that is freud, look at the reasonable steps. Before we even get to 185 a make some basic stamen on what section of the act confers indefeasibility which is section 37 which outlines immediate indefeasibility look at the execution about mortgages being processed ect so section 71 lta that requires a mortgage to be validly execution look at 61 and 62 LTA which requires a mortgage to be witnessed.
The registered mortgage doesn’t contain indefeasibility if the morgagee does not take reasonable steps in identifying the motgagee. 185 (1a). reasonable steps is a prudent lender/ doubt about a persons identity and gender and must to inquiry in taking reasonable steps which is in s 11 A and B (3) of the Lad title act and section 2 of the manual. You would get to section 11 a which would say that you must confirm identity and that’s what 11A (2) says, which says must take reasonable steps, reasonable steps is in the Land title practice manual go to 2-2005, conformation of identity. Must keep proper records and take reasonable steps. What is a bit suspect that doesn’t constitute reasonable steps? Only a passport was presented, she doesn’t look like her photo, wrong signature and the lack of interest in negotiation a lesser interest rate indicates that she has no intention of repaying. The age and lack of identification, he also was not taking diligence she has also not sought any legal advice ect. 11A and 11B of the land title act 1994 is the verification of identity (shows categories of identification). Be familiar with chapter 2 and 6. Verity can get the mortgage set aside and seek an order for the montage to be set aside would be the LTA section 185 1 A and 187 look at the mortgages obligation must mention CBA perrin v commonwealth (billabong case). If he did take reason able steps and verity got a indefeasible mortgage what could verity do?
possession as its an issue under encroachment which is s 98 (1) but also encroachment under s 182 PLA.
Week 5 - property law
Course: Foundations of Property Law (LAWS12065)
University: Central Queensland University
