In Australia, persons can secure their interest in land by both legal and equitable means. This subtopic provides an outline of interests that persons may have over a parcel of land and addresses issues with competing interests.

Priorities disputes may arise when two or more persons have competing interests in a piece of land concurrently. The issue that needs to be resolved is whose interest takes precedence and prevails. Although the introduction of the Torrens title system has decreased the frequency of priority disputes, when issues arise, generic rules developed from common law and equity can be still applied. Of particular importance is that an earlier interest usually supersedes a subsequent interest in the absence of extenuating circumstances.

Prior to resolving a dispute, practitioners must recognise whether interests:

• are legal or equitable (see Legal and equitable interests); and

• concern land under old “general law” title (old system title) or Torrens title.

See Priorities.

Caveats are statutory injunctions to protect unregistered rights to an estate or interest in Torrens title land. This allows a caveator, who is a person who has lodged a caveat on land, to apply to the Registrar to restrain the registration of any further dealings (unless expressly excluded in the caveat or there are exceptions provided in statute) in relation to a parcel of land without their consent. Once registered, a caveat is noted on the copy of the title as held by the land register but does not usually appear on the certificate of title as issued to the land owner as proof of ownership.

See Caveats. For further information, see the Caveats subtopic.

A mortgage is one of the most common forms of security interest. Essentially, a mortgage is a conveyance of or charge over land as security for the repayment of a debt or discharge of monetary or other obligations. This agreement is voluntary and contractual in nature and confers proprietary rights to the mortgagee (ie the party which grants the mortgage, for example a bank). Under this relationship, the mortgagor is commonly in possession of the property as security for the repayment of the money in favour of the mortgagee.

When dealing with mortgages, different legislation and principles apply depending on the type of estate that is mortgaged. In Australia, mortgages over land can be in two forms:

• mortgages over land under old system title; and

• mortgages over land under Torrens title.

See Mortgages. For further information, see the Mortgages topic.

Leasehold interests result from a grant from the holder of a freehold interest (lessor) to another (lessee) rights to exclusive possession of the property, for a definite duration of time. Common to other interests, leases can either be legal or equitable.

Basic requirements must be agreed upon between the parties to the lease agreement at both common law and equity. These include:

• the property being leased;

• the rent payable;

• names of the parties to the lease agreement; and

• disclosure of the maximum duration of the lease.

See Leases. For further information, see the Leases topic.

Easements are rights which entitle the specific use and access of privately owned land. This results in the relationship between a:

• dominant tenement, which benefits from the easement; and

• servient tenement, which is, in some way, burdened by the easement.

Although an easement confers limited rights to land use, it does not confer general possessory rights to the owner of the dominant tenement.

For an easement to be enforceable as a legal interest it must be registered on the property title or specified in legislation. Statutory easements commonly include rights to flow of water, sewer, and electricity, which may not necessarily appear on the certificate of title.

Easements can be further subcategorised as either:

• a positive easement, which allows certain acts to be done; or

• a negative easement, which prevents the owner of the servient land from some particular act.

See Easements. See also the Easements subtopic.

A covenant is a formal agreement or promise in a deed which imposes contractual obligations between parties to its creation. Covenants can be subdivided into:

• positive covenants; and

• restrictive covenants.

Positive covenants impose conditions which bind the owner of the servient land to perform a specified act. Most frequently, this type of covenant exists as public positive covenants, which are imposed by a statutory authority or local council to benefit the wider public.

Restrictive covenants are more commonly used between landowners to restrict the particular use of land. Restrictive covenants can be created by:

• the transfer of Torrens title land or by deed for old system title; or

• on registration of a plan of subdivision.

Commonly, property developers and individuals employ the use of restrictive covenants to preserve the value or amenity of their property. For example, a landowner may enter into a covenant with their neighbour to preserve their view by preventing them from erecting structures which may obstruct this. Covenants between the covenantee (the party to whom a promise by covenant is made to and who is entitled to the benefit of the promise) and the covenantor (the party who promises to do or refrain from doing a particular act under the covenant) are enforced on the basis of privity of contract.

See Covenants. For further information, see Positive covenants, restrictions on use and profits à prendre.

Developed in equity, trusts are arrangements which separately deal with the same legal and beneficial rights to the same property. This relationship results in property being legally owned by a trustee who offers another (beneficiary) benefit and use of the property.

Trusts can be subdivided into three categories:

• express trusts;

• resulting trusts; and

• constructive trusts.

See Trusts.