LAWS2017 Real Property Comprehensive Notes - Common Law and Equitable Approaches to Competing Interests - Priority Rules, Old System Title, and Equity

Sep 17, 2026

Uploaded by Jasmine

Comprehensive legal study notes on real property priorities and equitable doctrines, focusing on how courts resolve competing interests. Covers the priority framework between common law and equitable rights, including the nemo dat rule, and explains how earlier legal or equitable interests prevail subject to exceptions. Includes detailed guidance on Old System title deeds and mortgage interests, outlines a three-stage land purchase process, and surveys categories of equitable interests and equity maxims.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages10

Reading Time25 min

AccessFree to download

Common law and equitable approaches to competing interests

Priority disputes and nemo dat

Old system title: deeds, legal ownership, and mortgages

Three-stage land purchase process

Priorities between competing legal interests

Equity: equitable interests and maxims

Competing equitable interests and postponing conduct

Competition between legal and equitable interests

LAWS2017 Real Property Comprehensive Notes 1. Common Law and Equitable Approached to Competing Interests The basic rules of priority: 1. Priority disputes occur when two or more people claim independent property rights that cannot co-exist. When one property right takes priority over another, the latter is extinguished or diminished to the extent of any inconsistency between them. 2. An earlier legal right takes priority over a subsequent legal right (nemo dat rule at common law) . 3. A legal right takes priority over an equitable right of which a bona fide purchaser does not have notice. 4. An earlier equitable right takes priority over a later equitable right (but some exceptions exist) . A: Old System Title 􀀂 Deeds: o A deed is the most solemn act that can be done in respect to property: Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361. o Where the land is Old System title, the alienation of the fee simple and most interests in land at law must be effected by deed: s 23B(1) Conveyancing Act 1919 (NSW) . There are four requisites for a valid deed: signing, sealing, delivery and attestation: s 38 Conveyancing Act o To create a legal interest under old system title, a deed must be signed conveying the land to the mortgagee whereas for an equitable interest under old system title, the title deeds are deposited with the mortgagee. 􀀃 There can only be one legal owner, subsequent mortgages can only create equitable interests in the land. 3 stage process to purchase land: 1. Decision to buy 2. Enter into the contract with the vendor (exchange of contract)– payment of deposit o At this point the purchaser acquires an equitable interest in the land equivalent to the deposit. Inmost cases, courts will order specific performance because land is deemed special and unique. 3. Settlement – the relevant documents are handed over – the purchaser pays the remainder o The deed of conveyance (Old System Title) B: Priorities between competing legal interests 􀀂 Consider the situation where O (owner) delivers a deed of mortgage to M (mortgagee), then O delivers a deed of conveyance to P (purchaser) . The important rule is that: o Where two or more legal interests in the one parcel of land are inconsistent with each other, priority depends on the date of creation of the interests. Where there is inconsistency, an earlier legal right takes priority over a subsequent legal right (nemo dat rule at common law) . o The rule ‘nemo dat quod non habet’ means that you cannot give what you do not have. o Note the effect of a mortgage of old system title land 􀀂 the first mortgagee has a legal interest. The right of a second or subsequent mortgagee can only be equitable because it is a mortgage of an equity of redemption. C: Equity 􀀂 Equitable interest in property is one that will be enforced by a court exercising equitable jurisdiction. 􀀂 Kinds of equitable interests include: 1. Beneficiary’s right under a trust 2. Right of purchaser under a valid agreement for sale of land 3. Right of mortgagee/lessee under a valid agreement (not a deed) to grant mortgage/lease 4. Right of a mortgagor in the mortgaged land which is Old System Title (equity of redemption) 5. Right of a second or subsequent mortgagee 6. Right of mortgagee under mortgage by deposit of deeds (principle of part performance) 7. Grantee of an option 8. Unpaid vendor (vendor’s lien) 9. Purchase price resulting trust – where both A and B contribute to the purchase price but the land is only conveyed to A. 10. A profit á prendre which is in writing but not in the form of a deed (i.e. fails to satisfy s 23B) 􀀂 The general maxims of equity: 1. Equity follows the law (i.e. first in time prevails) . Equity adopted the common law rule that priority depends upon the date of creation of the interest. 2. Where the equities (merits) are equal, first in time prevails (‘qui prior est tempore potior est jure’) . 3. Equity will not suffe

FAQs

When do priority disputes arise in competing property rights?

Priority disputes arise when two or more people claim independent property rights that cannot co-exist. If one right takes priority, the other is extinguished or diminished to the extent of any inconsistency.

How does the nemo dat rule affect competing legal interests?

Under the nemo dat principle at common law, a person cannot give what they do not have. Where inconsistent legal interests exist in the same parcel, an earlier created legal right takes priority over a later one.

What are the key features of Old System title deeds and mortgage interests?

For Old System title, land interests at law generally must be effected by deed, with valid deed requisites including signing, sealing, delivery and attestation. To create a legal interest under Old System title, a deed conveys the land to the mortgagee, while equitable interests arise when title deeds are deposited with the mortgagee.

Sep 17, 2026

Uploaded by Jasmine