Real Property
Real Property
Part A
Question a
Teresa’s contention is likely to succeed especially given the fact that Stephanie forged her signature and thus broke the law. The law of Australia is against the falsification of documents; it is not acceptable for a person to make false documents to use them to sway another person to accept these documents as genuine (Anon. n.d.). This is by section 83A of the Constitution. The legislation regarding property in Australia in all territories and states is based on Torrens principle of registration. Stephanie is the one entitled to the land, but she already signed an agreement with Teresa making her the first mortgagee. However, Australia protects the first mortgagee, and the Constitution argues that he or she should be consulted in case there is a subsequent mortgagee (Cuningham et al. 2012). Therefore, Teresa’s contention may ultimately succeed if she proves that Stephanie forged her signature and that she was not consulted on the subsequent mortgage.
Teresa signed a certificate, which proves her as the first mortgagee. Therefore, she is entitled to consent if another mortgagee is involved in these lands. She has the right over the land and has a say. Also, Stephanie forged her signature in a bid to induce another person to agree to be a mortgagee of the land. Therefore, Stephanie broke the law and lied to a client. She gave out false information and presented a false document to present this. Therefore, Teresa’s argument should ensure that her contention proceeds because all arguments fall hard on Stephanie and she is clearly in the wrong, for forging documents, lying, and breaking the law. Therefore, in the end, she should be able to prove that Stephanie went against the law and broke the code of ethics that should exist.
Question b
Ursula’s contention is hard to succeed because she did not do any research on the mortgage to understand whether the written agreement was the situation of the mortgage. The written agreement is also easy for Stephanie to deny whereby she can argue that she did not show these documents to Ursula. However, Ursula can argue that Stephanie’s money was to get the advance, so she lied to Ursula.
Section 60 of the Real Property Act provides that the mortgagee, having paid some or the principal sum stated enter in possession of the mortgaged land (Bransgrove & Nexis 2005). Therefore, since Ursula had paid the advances, she legally has a say on the issue of the land, and she should be considered as a mortgagee. However, the main problems she will encounter are trying to prove that she paid and the fact that she had no idea that there was another mortgagee. She will have to convince the court that she was not ignorant of the details of the mortgage and this may prove to be a hard task than anticipated.
Section 23b argues that a person must pay a certain amount for the mortgage to be considered effective. In the case Ursula paid advances and thus paid is supposed to be treated as a mortgagee. Therefore, she should be given a chance to present her case in court, but not all in all her contention will be as easy as that of Teresa. She should have done more research and look at the registration in the Torrens whereby it is constitutionally expected for a person to be registered as the owner. In this situation, she could have discovered if the land already had a different mortgagee.
Section 57(1) states that covenant, a charge, or a mortgage can act as security but cannot act as a transfer of the land charged or mortgaged. Therefore, Ursula is required to present the argument and show that it is genuine if she wants her contention to succeed. She also has to show that Stephanie withheld crucial information about the mortgage and that she did not clearly stipulate or the details.
Part B
Question c
Win’s contention that she has priority over all the rest is not likely to proceed. This is because, even if she was rightfully supposed to have the priority over all the rest, she received a fake document, which was supposedly signed by Teresa. If she had received a genuine document signed by Teresa, then her contention would succeed. However, in this situation, the case of forgery will make much of the headlines and Win will not be completely be regarded as an owner of the property. The case revolves around Stephanie acting as the owner of the land and a broker, which can result in dire consequences for all the parties involved. Brokers only want to make more money on something and do not care about the repercussions (Bennet 2016). In this situation, the argument by Win is legitimate, but the facts will not be in her favor.
However, Win is not aware that the document presented is not legitimate. Therefore, she thinks that she is legally entitled to have higher priorities than Stephanie, Teresa, and Ursula. On the contrary, Stephanie also lay her to and thus, this makes the contract she signed with Stephanie elegit. This can only be rectified if she gets a genuine document signed by Teresa and not a document that is forged by Stephanie. Ultimately, the possible results include the court ruling against Stephanie and finding her guilty on all counts, and that will mean that all documents signed after the first one between Stephanie and Teresa are not legitimate. Therefore, it will be hard for Win to win the contention that she should have higher priorities than all the rest.
Question d
In Australia, a caveat can be put in a situation whereby a person contributed to the land or was a second mortgage (Andersons Solicitors 2013). Therefore, according to the agreement, Ursula has a caveat, and that means there is a restriction to who can be leased the land. A caveat is a statutory injection that prevents the registrar from registering any further instruments until further notice or absolutely unless these subjects are expressed to the subject (Government of Western Australia 2016). However, Ursula did not lodge a caveat at first and thus waited until Stephanie signed a contract with Win. Therefore, Win can argue that Ursula took a lot of time before lodging the caveat.
On the other hand, Teresa can argue that Ursula was not justified to lodge a caveat because she was not aware of the existence of a first mortgagee. Teresa should not be deprived her rights after she was the first one to sign a contract with Teresa and she was not informed when Ursula also became a mortgagee. Therefore, she is not liable to the caveat that Ursula lodged. Therefore, Teresa can argue that the caveat does not protect Ursula against her, as she was the first one to come to terms with Stephanie about the land.
Therefore, in the case of Teresa, it is easy to ignore the power of this caveat because Ursula signed it without being completely sure about the situation of the land and all the parties involved, she just trusted in the world of Stephanie. On the side of Win, she can argue that she purchased everything and got all the documents she required to have the land. Therefore, she should not be at fault if she was not granted the legit documents. However, she can come up with an agreement with Ursula to sue Stephanie for hiding details about the land to both of them and handing over fake documents to win in a bid to convince her to buy everything and in the process forging Teresa’s signature. Teresa can also help them in suing Stephanie because she is also the victim in this situation.
Question e
The response in the first scenario would still be the same because Stephanie stole the certificate. One can argue that Teresa handing her the certificate might have motivated her to forge the signature and in turn, want to benefit from this scenario. However, falsification of documents is an illegal act in Australia and can lead to level five imprisonment, which attributes to a maximum of ten years in prison (Anon. n.d.). Therefore, Stephanie’s act will still be illegal no matter the situation of how she received the document.
However, the difference between her handing over the certificate to Stephanie and Stephanie stealing the document would have a different reaction to her contention. The former will imply that maybe it was not her intention to forge the signature or to make another person the mortgagee and thus it was all motivated by Teresa. However, the second one will completely incriminate her for several counts, stealing, and falsification of documents and the penalty to these counts will be dire.
No matter the situation, it is clear that her selfish interests drive Stephanie and therefore, whether she stole the certificate or she was handed the document, her actions after this portrays the fact that she was planning to break the law in the long run. She was not motivated by the fact that she had the certificate, but by her selfish needs. That is why even after signing a written agreement with Ursula, she went along to sell everything to win, and in so doing, she offers a forged document stating that Teresa returned everything back to her. In these regards, she does not include the facts that Ursula and Teresa are still parties who have a say in the matter.
Therefore, Teresa would still succeed in her contention that she is entitled to prevent the registration of the discharge of these forged documents. Stephanie would still be breaking the law regardless of the way she did it. In the end, her actions show that she did not act the way she did merely because she was presented with the certificate rather than stealing it.
References
Andersons Solicitors 2013, Caveats- A Simple Guide. [Online]
Available at: https://www.andersons.com.au/lawtalk/2013/june/caveats-a-simple-guide/
[Accessed 28 April 2017].
Anon. n.d., Victorian Current Acts. [Online]
Available at: http://www.austlii.edu.au/au/legis/vic/consol_act/toc-C.html
[Accessed 28 April 2017].
Bennet, M. 2016, Banks ordered to review mortgage fraud. The Australian, 20 May.
Bransgrove, MJ & Nexis, L 2005, The Rights of Mortgagees. [Online]
Available at: http://www.bransgroves.com.au/documents/PDF/Seminars/CollegeOfLaw/05.11.10_The_Rights_of_Mortgagees.pdf
[Accessed 29 April 2017].
Cuningham, M, Berriman, T, Mosley, J & Rovers, K 2012, Practical Law: Multi-Jurisdictional Guide 2012. [Online]
Available at: http://www.minterellison.com/files/uploads/Documents/Publications/Articles/Country-QA-Australia.pdf
[Accessed 28 April 2017].
Government of Western Australia 2016, Lodge a Caveat: A guide to preparing the documents. [Online]
Available at: https://www0.landgate.wa.gov.au/docvault.nsf/web/PS_TR_HOWTOGUIDES/$file/Landgate-How-To-Guide-Caveats-Web-R1.pdf
[Accessed 28 April 2017].
