DIPLOMA IN CONVEYANCING Question 1(10 marks) Define any FIVE of the following terms, giving an example of each in order to illustrate your explanation:
- Choses in action
- Choses in possession
- Eminent domain
- Chattels real
- Nemo dat quod non habet
- Torrens system
Achoses in actionis anintangiblepersonal propertyright recognized and protected by the law. They do not have the physical presence, they cannot be possessed. They are referred to as rights. (Gerbic and Miller, 2010, Pxivii) Such as company shares. A sum of money owed, insurance polices. (b)
Achoses in possessionis an item oftangiblepersonal propertythat can be physical possessed by the owner and can be transferred by delivery.(Gerbic and Miller, 2010, P454) Such as a car, mobile phone, boat (C) Eminent domain: means that all land in New Zealand belongs to the Crown. Under this legal fiction, individuals cannot own the land absolutely, but can only own estates in the land, which represent various amounts of time.(Gerbic and Miller, 2010, P459) Such as estate in fee sample, joint tenants, tenants in common. (d)
Chattels real is a peculiar type of personal property. It consists of one intangible interest in lease of land, in which a tenant gets exclusive possession for a number of years, usually in return for a rental. (Gerbic and Miller, 2010, P459) Such as leasehold land, cross lease hold land (e)
Nemo dat quod non habet: The transfer of title to Goods (ownership) by gift or sale is subject to the Nemo dat rule, which means no one can pass on a better right to ownership than he or she has. (Gerbic and Miller, 2010, P459) Such as stolen goods cannot be taken possession. Aâ€™s car is stolen by B, and sold to C. C sells it to D. D gives id to his son. His son sells it to E. A then recognises the car as the one stolen from him. If he can prove this fact, he may be able to get this car back from E. (f) Indefeasibility: This refer to paramountcy or supremacy of title. It means ownership of land or interests in land that are protected from claims by other person. Section 62 and section 63 of LTA. (Gerbic and Miller, 2010, P464) Such as pervious owners or have some other kind of interest in the land or a contract to buy it, it confers an indefeasible title. (g) Torrens titleis a system of land title where a register of land holdings maintained by the state, the states guarantees an indefeasible title to those included in the register. (Wikipedia, 2014) Such as Land ownership is transferred through registration of title instead of using deeds. Question 2(7 marks) Type the letters (a) to (h) down the left hand side of your page below. Beside each, type the letter â€œTâ€ or â€œFâ€ to indicate whether you consider each of the following statements to be true or false:
- New Zealand is divided up into 12 land registration districts, and each one has a Land Titles Office.
- â€œSeisinâ€ refers to the ownership of land and/or chattels
- Historically, New Zealandâ€™s land system was called the Torrens system
- The most recent Land Transfer Act was passed in 1950.
- The term â€œpersonal propertyâ€ includes privately owned land
- The case of Boyd v Mayor of Wellington illustrates the principle of fraud
- In 1923, the New Zealand Government decided to abandon the Deeds System, and introduced the Land Transfer (or, â€œTorrensâ€) System
Question 3 (7 marks) Name the most specific category of legal property for each of the items in bold: Jessica picked her return plane ticket up from the Travel Agentâ€™s office, and rushed home to tell her parents of her exciting travel plans. On the way home, she stopped in at the Insurance office to also pick up her travel insurance policy. Her pet cat, Tasha, met her in the garage as she pulled up the driveway and parked her car. She tried to phone her boyfriend on her mobile phone, and realised that she only had five minutes of air time left on her mobile phone plan. â€œOh wellâ€, she said, â€œIâ€™ll be seeing him at the concert tonight at the town hall building â€“ I can tell him then.â€ Answer: Return plane ticket: PP/CA personal property/choses in action Travel insurance policy: PP/CA personal property/choses in action Pet cat: PP/CP personal property/choses in possession Garage: RP/T real property/tangible Car: PP/CP personal property/choses in possession Five minutes of air time of mobile plan : PP/CA personal property/choses in action Town hall building: RP/T real property/tangible Question 4 (10 marks) 4.1Write a paragraph explaining the history and development of the New Zealand land registration system, ensuring you include the history, origins and operation of the Torrens system of land registration. Your paragraph is not to exceed 500 words (7 marks) Answer: From the year 1841, the deeds system was used under Deeds Registration Ordinance 1841. Later passed the Deeds Registration Act 1908 and still in force, however, it is virtually obsolete. ( Bennion T, Brown D, Thomas R and Toomey E, 2009, P37) in the deeds system, title was established by an unbroken chain of deeds going back in time. A purchaser had to check thoroughly all previous deeds. The deeds could become numerous and bulky. ( Gerbic and Miller, 2010, P460). The deeds system was abandoned in 1870. The Government introduced the Torrens System. The Torrens system adopted primarily in Australia. It was a system of title by registration. Under the Torrens system, the legal estate in the land passes by an act of the state, not by an act of the parties, as was the case under the Deeds system. The originator of the system was Robert Richard Torrens. Torrens overcame uncertainty and insecurity of title, he thought that the root of the problem lay in â€œthe dependent nature of titleâ€.(Bennion T, Brown D, Thomas R and Toomey E, 2009, p38) Australia is the first country to adopted his proposals by the Real Property Act 1886(SA). And made amendments between 1858 ans 1861 to improve the system. Torrens System has three principles, which are the mirror principle, the curtain principle, and the insurance principle. In New Zealand, firstly the Land Registry Act 1860 was introduced but not success. Then the land transfer Act 1870 introduced the Torrens system. The 1870 Act firmly established the concept of registration of the title in New Zealand. It included a provision that all land alienated from the Crown in fee simple should be subject to the land Transfer system. Later the Land Transfer Act 1924 Compelled somewhat reluctant to bring their land under the new system. The Act 1870 was consolidated in 1885, 1908 and 1915. And the current Act is the land Transfer Act 1952. The 1952 Act made significant amendments and a number of law reform proposals. In 2002 the Act was significantly amended by the land Transfer Amendment Act 2002 to accommodate the transition to a fully computerised system of registration and conveyancing. In the year 2008, Land Transfer(Compulsory Electronic Lodgment) Order 2008 was introduced and effect on 23 February 2009. (Bennion T, Brown D, Thomas R and Toomey E, 2009,P38) 4.2Identify three important features of the Torrens System as compared to the Deeds System. You may display your answer in a table if you wish (3 marks) Answer:
(Bennion T, Brown D, Thomas R and Toomey E, 2009,P39) Question 5 (17 marks) (a) Under Landonline, what is a computer register? (2 marks) Answer: Computer Register (Certificates of Title) proves the ownership of land and the rights and restrictions that apply to the land. They have been recorded electronically since 2002. Under the Land Transfer Amendment Act 2002, S4 states computer register means all or any of a computer freehold register, computer interest register, or computer unit title register, as the case requires. (b) Who may conduct title searches online? (2 marks) Answer: The information on the register is a matter of public record. It may be searched by any person and the person searching is entitled to repay on the information found there. (Drake N, Lay J, Varnham S and Thomas C, 2011, P38) (c) What is the difference between an e-search license and an e-search plus license? (2 marks) Answer: E-search license allows access to all converted title information and images of survey plans. E-search plus license allows access to all of the basic e-search information and more, including the ability to search the spatial information held within the landonline system. This enables searches to be conducted on a geographical basis.A particular location can be identified and the system will display a digital representation of the land parcels in the selected area. If required, it is possible to identify individual property boundaries and relevant details such as plan and title references, boundary distances, area measurements and other survey details. (Bennion T, Brown D, Thomas R and Toomey E, 2009, P236) (d) Briefly describe how the e-dealing system operates (3 marks) Answer:
- The mirror principle: the register accurately and completely mirrors the state of title.
- The curtain principle: on registration of an interest in land, a curtain comes down over past events. They cannot affect the current ownerâ€™s title, unless there is fraud.
- The insurance principle: the state guarantees that the register. If it is incorrect, there will be the compensation.
(Landonline, 2014) (e) What sort of documents, or instruments are registered in an e-dealing? (3 marks) Answer: Under the land Transfer Regulation 1966 Amendment No 11, there are some forms need be registered under the LTA 1952. The Land Transfer Regulation 2002, s4 describes the documents electronic instruments, listed in Part 1 of Schedule 1. Section 11 of Part 3 lists the parties who are required to certify each instrument in the terms of s164A of LTA. (f) Who may certify and sign electronic instruments? (3 marks) Answer:
- 1. Create an e-dealing: Enter client references, add plans for deposit, add default PCs and CPs, add instrument details and title reference and enter role details.
- 2. Prepare instruments: Select an instrument and click prepare to display, there are Discharge, Transfer, Mortgage, Notice of Claim, Transmission and Memorandum of Priority.
- 3. Create an A&I Form: select the type of A&I form, edit client details, complete other details for instruments and preview and print or save A&I form
- 4. Certify and Sign: this must be undertaken by the lawyer or conveyancer nominated on the A&I form, view details of the instrument, complete all certifications and sign the instruments.
- 5. (Settle) Release - on the day of settlement, the instruments within the e-dealing can be released.
- 6. Submit - once settlement has been completed, can submit the e-dealing to LINZ for instant registration.
(a)the executing party in form 27 of Schedule 2; or (b)the witness to the execution in form 28 of Schedule 2. Also, Land Transfer Regulation 2002 S16 sets out the requirement of signature. 1. Individual person may sign it straightforward. 2. for incorporated societies An attorney can also sign documents on behalf of an incorporated society if the attorney has been properly appointed under a power of attorney. 3 for company If execution is by the signing of two or more directors, not witness is required. If the director of a one director company signs, or a director and another authorised person sign, the signatures must be witnessed. A properly appointed attorney may sign on behalf of the company and the signature must be witness. (g) Explain the layers of security in place in Landonline, to ensure access is limited to authorised users. (2 marks) Answer: The firms need purchase the software license and a digital certificate for every individual who may access to the system. Others may search only or document preparation right. Only lawyers and authorised conveyancers may certify and sign electronic instruments. Every person must use own digital certificate for the transaction. To sign up process, person need apply for Landonline access and comply with the term and conditions of uses. (Bennion T, Brown D, Thomas R and Toomey E, 2009 P243) References: Bennion T, Brown D, Thomas R and Toomey E (2009) New Zealand Land Law 2nd edition Drake N, Lay J, Varnham S and Thomas C (2011) Conveyancing Law Handbook 4th edition Gerbic P and Miller L ( 2010) Understanding Commercial Law 7th edition Landonline (2014) E-Dealing Roadmap, Retrieved from https://www.landonline.govt.nz/edealing/getting-started/edealing-roadmap Wikipedia, 2014, Torrens Title , Retrieved from https://en.wikipedia.org/wiki/Torrens_title
- Barrister, solicitor or conveyancer who has authorised the transaction and has the legal capacity may sign the documents as required by s164a of the LTA (S389 of Lawyers and Conveyancers Act 2006). The practitioner has taken reasonable steps to confirm the ID of the person who authorised. The instrument to which the certification related complies with all applicable statutory requirement. And the practitioner has supporting documents. (Bennion T, Brown D, Thomas R and Toomey E, 2009, P245)
- Electronic Instruments must by certified by a conveyancer on behalf of the specified party. (Reg11 of Land Transfer Regulation 2002)
- The signing of a paper instrument must be witnessed (Reg 16), sign an attestation clause in Form 26 of the Regulation.
- Under Reg 16(3), if the Registrar considers it necessary, he or she may, before registering an instrument, require that the authenticity or validity of the execution of the instrument be verified by a statutory declaration given byâ€”