Transfer of Property: Distinct Interests (S 46)
Transfer of Property: Distinct Interests (S 46)
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Transfer of Property
(General Principles of Transfer of Property)
Transfer for consideration by persons having
distinct interests (s 46)
o General principal: transfer by persons having distinct interests:
converse of s 45.
o S 46 lays down the rules to determine the respective
entitlement of each transferor in the consideration paid by the
transferee.
o Joint transferors need not necessarily be co-owners.
Transfer by co-owners of share in common
property (s 47)
o General principal: this section enacts a rule to avoid confusion
in case of transfer by more than one co-owner of the property
who hold the shares as ‘tenants in common’ without specifying
how much out of each transferor’s share is transferred.
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Lecture
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Transfer of Property
(General Principles of Transfer of Property)
Priority of rights created by transfer (s 48)
o Rule of priority
o Equitable principal: Qui prior est tempore potior est jure (first in time
is better in law — subsequent dealings by the transferor of the same
property cannot be to the prejudice to the rights of the transferee
over the same property)
o Where a person purports to create by transfer rights in or over
the same immovable property,
o at different times
o and such rights cannot all exist or be exercised to their full extent
together,
o each later created right shall, in the absence of a special contract
or reservation binding the earlier transferees, be subject to the
rights previously created.
o Different dates
Slide-2 23/02/2015
Lecture
26
Transfer of Property
(General Principles of Transfer of Property)
Exceptions
o Where the instrument of transfer is executed under fraud,
misrepresentation or in gross negligence.
o S 48 is subject to the doctrine of notice.
o Where the second transfer is by virtue of a court order
that says that the transfer will have precedence over all
the previous charges.
o Where there are exceptions carved out by a statute.
o Maritime lien
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