Rodger Bain is an estate agent. Whilst presenting an offer of sale…

Question Answered step-by-step Rodger Bain is an estate agent. Whilst presenting an offer of sale… Rodger Bain is an estate agent. Whilst presenting an offer of sale to a client on 1 May 2004 inBaker Street, Oakley, (Melbourne), Bain saw that the adjacent property, 14 Baker Street (the’property’), was looking very unkept and untidy. Upon asking about it, the client told Bain thatthe three-bedroom property was owned by someone called Merkel or Arkell. The propertywas last occupied by a tenant, Angela Roberts, prior to her death in April 2002. After the deathof Angela, the property remained vacant.Upon closer inspection of the property a week later Bain found the house was open and therear door was removed. Bain instructed his solicitor to investigate the ownership status of theproperty as Bain was keen to get a mandate to sell the property. The solicitor ascertained thatHeinrich Merkel, the registered proprietor, died in 2001 without a will and no representativehas since been appointed in respect of the deceased estate. Heinrich Merkel was an Austriansubject and attempts to identify potential heirs in Austria proved fruitless. During July 2004Bain fitted the rear door of the property, changed the locks, installed a new fence at the frontof the property and spent more than $50,000 renovating and repairing the house beforerenting it out to tenants from the 1st of August 2004. One of Bain’s ‘contacts’ at the localcouncil provided information about the outstanding rates and taxes on the property. The’contact’ recorded Rodger Bain as the ‘person liable to pay council and water rates on theproperty.’ Such formal recording required the consent of the owner of the land. Bain paid theoutstanding rates and taxes and continued to pay rates and taxes.On 5 June 2018 Bain leased the property to Johnny Winter for two years. Winter bought awindow air condition system (‘air-conditioner’) (see picture below) on hire-purchase from IcyWorld. In terms of the hire-purchase agreement a final payment for the air conditioner is tobe made on 30 November 2020. Winter did not obtain permission from Bain to install the air-conditioner to the property, as was required by the lease. In terms of the lease ‘all accessoriesand add-ons’ to the property had to be approved by the landlord. The air-conditioner wasinstalled by, Mackey, a technician from Techno-Wiz Installations Ltd, at the request of Winter.During August 2019 Anna Smith, the only child of the late Mr Merkel, who lived in Timboon,became aware she may be entitled to the property when she was contacted by an estateagent about the possible sale of the property. Mr Merkel and Anna were not on speakingterms for many years. Anna’s solicitor established that the property is still registered in theRegister in the name of the late Mr Merkel. Anna Smith was pleasantly surprised that herfather did not sell the property and disinherit her as he always threatened to do. DuringSeptember 2019 Anna inspected the property, had Winter evicted and changed the locks tothe doors. Winter did not have the time to remove the air-conditioner and stopped payingrent and instalments to Bain and Icy World, respectively. Anna instructed the newly appointedrepresentative of the deceased estate to sell the property. Bain cancelled the lease becauseof the default of Winter. Icy World sued Winter for payment of the instalments and indicatedthat the company would remove the air-conditioner. Winter, however, claimed that in ‘termsof the laws of Victoria he is entitled to remove the air-conditioner.’ Anna refused that anyperson may enter the property to remove the air conditioner. Anna also refused to return anycalls from Bain who indicated in an email to Anna that Anna ‘was trespassing on the propertyand legal steps will be taken to protect his interest in the property, including an applicationunder section 60(1) of the Transfer of Land Act 1958.’ Acting as anna smiths solicitor, provide legal advice on the ownership of the air-conditioner. Also indicate and explain whether other (enforceable) rights may exist in respect of the air-conditioner and whether the air conditioner can be removed by such right holder(s) Social Science Law MLL 327 Share QuestionEmailCopy link Comments (0)