As per the case scenario, both Skye and Clover have contributed to the purchase of the Torrens title land Nirvana, with Skye contributing 30 percent and Clover contributing 70 percent in purchase price. Skye holds the title, while promising that the title would be transferred to both names, but dies soon after. Now the litigation action comes to context because Skye’s will leave \her property to her spiritual advisor. Nevertheless, the law will recognize the co-tenancy or concurrent ownership of Clover. In addition, a concurrent ownership termed as a co-tenancy is one that more than one person will own the property at a time (FindLaw, 2017). Now, even if the title is held by Skye alone, both have contributed towards buying, and hence common law jurisdictions will recognize both as tenants. They are co-owners and have unrestricted rights and here the title owner has also made a promise, so it will be possible for Clover to seek remedy or action as the wronged owner of Nirvana. Under the Torrens law, it will be possible to claim an exception.
Two forms of exceptions could be claimed, the first is that of the exception to Torrens in the context of fraud (LinkedIn, 2013). This is according to section 42(1) of Real Property Act 1900. The fraud referred to is actual fraud where dishonest behaviour could be cited for exception to Torrens. Now the fraud exception cannot be applied in this case scenario. The second exception that can be claimed is called the in personal exception. The in personal exception will recognize the obligations on the title owner which in this case is Skye. Skye holds the obligation to transfer the land in both names. Now Clover can highlight that obligation in order to ensure that equitable justice is delivered to him as the concurrent owner.
According to Conveyancing (Sale of Land) Regulations 2010, Schedule 3 states that it is necessary to ascertain that the property does not have any adverse affectations. It comes under prescribed warranties, where it is essential for the vendor to warrant that the residential property that sold is not subject to any form of adverse affectations (New South Wales Consolidated Regulations, 2010). Some of the adverse affectations that are recognized are a proposal made for the alteration of the land, or for the purpose of widening the land etc. The proposal could have been made by the Traffic Authority or the Rail Corporation or by the Minister of Education and Training etc. An order listed under the State Heritage Register would be considered as an adverse affectation of property.
Three-year-old s149 certificate
It is unwise to rely upon a three-year-old s149 certificate. Now Pickin has argued against the new sales of contract, asking me to use the s149 that he has from three years back for the sale of the property. The s149 is indeed a significant document as it has a direct effect on the sales price. It is basically a zoning certificate that is issued by local council (Xegas, 2013). Now the existing s149 cannot be used, as the Section 149 certificate requirements could change over time because of changing local rules, and three years would be a long enough time for it not to be considered current. Furthermore, as presented earlier, the s149 is just one of the documents and is not the only document to be considered here, so the s149 alone cannot be used, a Contract of Sale is essential.