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Case 4 - Impugned Transfer

Published online by Cambridge University Press:  26 May 2022

Björn Hoops
Affiliation:
University of Groningen, The Netherlands
Ernst J. Marais
Affiliation:
University of Johannesburg
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Summary

Variation 4.1. Impugned transfer

André sells and transfers the ownership of his parcel of land to Carla. The transaction complies with all formalities pertaining to transfers of land and is, in any case, registered in the land information system. However, Carla has blackmailed André into selling the land to her. Carla starts to live on the land. After ten years, André has recovered from the blackmailing, lets Carla know that he regards the contract as null and void, and sues Carla, seeking to regain control of the land.

Variation 4.2. Impugned transfer and transfer to a third party by the user

See Variation 4.1. Immediately after the transfer Carla sells the land to Bob, who does not know anything about the transaction between André and Carla. The transaction is registered in the land information system and Carla and Bob observe all formalities pertaining to transfers of land. Bob starts to live on the land. Ten years after the registration of the transaction, André has recovered from the blackmailing, lets Bob and Carla know that he regards the contract of sale between Carla him as null and void, and sues Bob, seeking to eject him.

KEY ISSUES

VARIATION 4.1.

This case raises the questions of whether blackmailing would render the transfer of land void(able) and, if so, whether an acquisition through long-term use could heal this defective transfer.

VARIATION 4.2.

This variation prompts the reporters to examine how a (presumably) defective, but registered transfer of land affects a subsequent transfer to a third party and the role that long-term use plays in this variation.

ALBERTA, CANADA OPERATIVE RULES

Variation 4.1.

Carla’s title is protected by the principle of indefeasibility, but is subject to André’s substantive right in personam to vitiate or rescind the contract for duress, assuming his right of action is not itself statute-barred. If André obtains judgment in his favour, and the sale is voided, he can proceed to restore his title to the property. In such case, the courts may deny Carla’s potential claim of adverse possession notwithstanding her occupation of ten years, on the grounds that her possession was not peaceful, or not adverse, or possibly due to estoppel.

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Publisher: Intersentia
Print publication year: 2022

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  • Impugned Transfer
  • Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
  • Book: The Acquisition of Immovables through Long-Term Use
  • Online publication: 26 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781839702419.008
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  • Impugned Transfer
  • Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
  • Book: The Acquisition of Immovables through Long-Term Use
  • Online publication: 26 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781839702419.008
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Impugned Transfer
  • Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
  • Book: The Acquisition of Immovables through Long-Term Use
  • Online publication: 26 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781839702419.008
Available formats
×