LAW283 - Property Law Study Notes PDF

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LAW283 – Property Law Study NotesTopic 1: The Theoretical and Conceptual Bases of Property Law Gray, Foster, Dorsett & Roberts -Chapter 1 and first page of chapter 2: pp 1-9; 14-21; 23-26; 30- Hepburn - Chapter 1: pp 4-5; 11-19; 21-36; 50-62, 6 9 Key cases: Yanner v Eaton (1999) 166 ALR 258 Cowe...

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LAW283 – Property Law Study Notes Topic 1: The Theoretical and Conceptual Bases of Property Law Gray, Foster, Dorsett & Roberts -Chapter 1 and first page of chapter 2: pp 1-9; 14-21; 23-26; 30-43 Hepburn - Chapter 1: pp 4-5; 11-19; 21-36; 50-62, 69 Key cases: Yanner v Eaton (1999) 166 ALR 258 Cowell v Rosehill Racecourse Co Ltd (1936) 56 CLR 605 Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 (Victoria Park Racing) Reading 1: - Topics of contention are housing affordability in areas such as Sydney and Melbourne, as well as compulsory acquisition of private land by government and the increasing privatisation of the land titling system and the security this brings. As well as threats to integrity, increased home buyer costs and the impact on the Land Property Information – all of which have an impact on social & political issues. - There are varying definitions of property that each have different theoretical justifications. Real property rights and laws are enforceable to the whole world, not just parties to contracts etc. The consequences of breaches are therefore further reaching as they rely on ‘real actions’ therefore resulting in restoration of the res (‘the thing’) and do not have to necessarily settle for damages. - Secure property ensures order and is important both socially and culturally, as well as spiritually for some cultures. Introduction to the concept - 1765 Sir William Blackstone defined property as the “sole and despotic (repressive) dominion” that man exercises over external things of the world to the exclusion of any other person. This breaks the definition up into two segments, (1) essential elements of property (2) moral or political approval of the situation. - There are three dimensions to the concept of property: o (1) Analytical – what is meant by the term ‘property’ o (2) Philosophical – justifications for a particular regime of property rights o (3) Doctrinal – what are the legal riles that classify and mark out the boundary between personal property rights and other rights? Analytical dimension What is meant by the term property? - There are varying definitions all of which have an impact on economic wealth/ power, role of gov & autonomy of individuals. - Property rights can at times conflict with other rights, such as people’s civil rights (exclusion from property due to race etc). - There are three elements in any property right: o Dominion: The legally authorised power determined by ownership of private property

Exclusion: In exercising property rights there is also the right to exclude others from interfering or having the same rights, if someone does not have the power to exclude then they do not have dominion. o External things: It must be a tangible thing, that someone has the right to transfer the rights of or alienate. Therefore, Snare determines rules that must be present for ownership to be defined, in the A has the right to use P, others may use P if A consents and A has the capacity to transfer the rights to P. There are also additional elements that make up the definition of property rights, particularly in criminal and torts law, including punishment rules, damages rules and liability rules. Honore identifies 11 elements of property rights, including the right to possess, use, manage, obtain income, capital, transmissibility, security, absence of term (keep it indefinitely), prohibit harmful use, execution (lose it to satisfy debt) and residuary rights (for others to own it when ownership lapses, e.g., by death). o

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Is property a relationship or thing? - It is considered a legal relationship with a thing. Although rights are present, they are almost always limited and there are prohibitions against certain types of harmful uses of property. - There are also elements of public interest in private property and this restricts rights to an extent depending on the circumstances. - Some argue that there is no such thing as real ownership and that everything is a legal relation. This is supported by the US Constitution where the fifth (then 14th) amendment is to protect people against their property being taken without due process of law. - Cohen theorises that the elements of dominium in private law and imperium in public law fuse and create feudalism, where ownership of land means direct control over tenants. - There are weaknesses to the ‘thing ownership’ theory to property but it is considered that property is a bundle of rights. Philosophical Bases of Property - Property is the primary determiner of wealth, as it determines the productivity, consumption, and exchanges of society. Labour theory of property - John Locke was the first philosopher to ground private property in labour, with this theory stating that people are entitled to own what they produce by their own effort and whatever they have laboured on, and central to this is individualism. - Therefore, the starting point of private property is the individual themselves. - This theory is based on natural rights, in that any natural acts that provide rights predate legal rights and that these should be protected. Further, the rights are to apply universally, and any individual should be able to be a property holder, which differs from earlier class-based theories. - The theory suggests that people can take as much property as they can by labouring on it, limited to leaving enough for others/ not taking away from others, and that no one should appropriate so much property that it should spoil their possession. These rules in combination serve to prevent maximisation and effect egalitarianism. - Difficulties with this theory include that servants who cultivate the land on behalf of the owners and the implications on land ownership

for indigenous people and women. Utilitarian justifications for private property - Rejects natural rights and argues that the objective of all humans is to maximise their happiness, and therefore, a good society maximises happiness for the maximum population. Property is seen by Jeremy Bentham as the main means of achieving this. He believes that legislators should not seek to achieve equality in property distribution, as any limitations on any property holder will cause pain to all property holders. - This theory ignores marginal utility. Economic justification for private property - Efficiency and wealth maximisation - is seen to be more tangible and measurable than utilitarian’s happiness-based theory. - Economic theorists see three conditions for wealth maximising property regime (1) the exclusivity of ownership should be protected by law (2) the rights of legal ownership should be transferrable by law and (3) the law should allow a universality of property and all things except common grounds should be privately owned if they do not impose on the rights of others. - Arguments against this relate to the access of common services to all classes of people if they were all privately owned (e.g., hospitals). Justice & equality - Many see the goal of property regimes to be based on the principles of equality and justice, for example Karl Marx who saw private property in capitalist societies as a tool for oppression, with some owning the means of production and others just working, hence a power imbalance. This results in an ever-increasing cycle of exploitation. Marx sees the only solution to this as communism where all property is owned by all. Women & property - Feminist analysis of property law focuses on three elements (1) the ignorance of women’s systemic disadvantage in the law and no attempts to remedy this (2) there is an ignorance to the matrimonial property that women become and (3) the functional approach that look s at the inequality in property ownership. - There are significant differences in gender’s access to property ownership, likely stemming from other systemic sexist issues such as unequal pay. Pluralist approach - Munzer puts forward that there are three main pillars of property justification theory: utility and efficiency, justice & equality and labour & desert. Historical changes in the nature & function of property

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17th century: the concept of property was narrowed and became individualistic rather than collectively owned and changed from a right not to be excluded to a right to exclude others. This coincided with a rise in market production and general capitalism. Mid 20th century: the welfare state emerged which saw an increase in government contracts and regulations on property ownership and use.

Doctrinal dimension: the boundary between property and other rights Property & Contract - Contracts allow parties to sue for damages in the event of breach, whereas property rights are rights over things. They may be enforceable to third parties and can also bring about different remedies (contractual & proprietary). - Even if a contract confers a right over a thing, there still may be question about whether they are of a proprietary nature or not (for example, if you buy a movie ticket, you have a right to watch the movie but not own the property). - Therefore the difference in property v contract rights determines types of use of land and obligations for those using/ letting. For example in King v David Allan & Sons Billposting LTD [1916] one landlord allowed a rented space for billposting but then sold the property to someone who did not recognise this deal, hence the issue was contractual not proprietary as it was about the use not ownership. Property and Indigenous Rights - Initially Milirrpum v Nabalco Pty Ltd (1971) stated that Aboriginal land rights were not recognised as they could not exclude other people from using it and that it “made little sense to say tha the clan has the right to use and enjoy the land”. Hence legal rights were not recognised in the Indigenously traditional sense as they did not adhere to anglo saxon definitions of ownership. - This was changed by Mabo v Queensland (No 2) (1992) where Native Title was recognised by common law, however this has been only symbolically granted in that it is able to be used for spiritual reasons rather than actual land ownership. It is however seen by some to be legitimate property rights as it ‘burdens the Crown’s title’. Body parts and property rights - In Moore v Regents of the University of California (1990) someone had their cells removed and used for research, he then later sued and claimed that the cells were chattels and that he had not consented to their use in research. This was denied by the Supreme Court who held that he had no propriety right over the cells, but that there was a personal right, and he was awarded damages due to not being advised of what would be done with his cells. - In NSW, the Human Tissue Act 1983 (NSW) specifically s 32 prohibits the sale of human tissue of a person who is alive or dead (except certain circumstances). - The leading Australian common law authority is Doodeward v Spence (1908) a preserved two headed baby was seized by Police, and the owner sued to recover it. It was found that once someone has worked and performed skill on it, the person can bring action to recover it. Reading 2: Hepburn - Chapter 1: pp 4-5; 11-19; 21-36; 50-62, 69

Associated Property Rights - Property rights are grounded in the right to exclude, use, and enjoy, possess, and alienate. - The bundle of sticks metaphor is frequently used: One is not entitled to a whole physical portion of the earth but is able to enforce certain rights. This metaphor stems from Hohfeld and Honore and is an analytical and descriptive metaphor. It treats land ownership as one dimensional and fails to incorporate the social and ecological communities that the land or resource is associated with and removes it from the reality of its context. It is also problematic for natural resources. Property is a relationship - It is a person’s relationship with a thing, and the impact of this relationship on others. - Yanner v Eaton (1996) 166 ALR 258: A Magistrate dismissed a charge on an Aboriginal person for taking juvenile crocodiles, finding that it was an exercising of Native Title. This was appealed but held, and it was found that The Fauna Act was invalidated by S 109 of the Constitution. - Hence this reinforces that property rights are relationships with things or areas, rather than a right to ownership purely. Distinction between proprietary rights and contractual rights - A property rights is enforceable to the rest of the world (in rem) and a contractual right is enforceable against other parties in the contract (in personam). - In rem rights are remedied by property-based options that entitle the holder to preclude others from interfering with their rights, whereas in personam remedies entitle personal remedies. - Some contractual rights may transfer into property-based rights, particularly in the equity jurisdiction for example leases that are based on property access/ usage. - Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605: Someone was forcibly removed from the races after buying a ticket, they sued claiming assault and a right to have an irrevocable license to remain and watch. The judgement held that a contractual licennce to enter was not irrevocable and could not be a property interest. - A lease should be distinguished from a license, as a licence is permission to enter and does not result in a property interest but may be a contractual agreement. Boundaries of Ownership – Resources incapable of ownership Rights to a spectacle - It has no tangible presence and is not clearly identifiable, and this has been upheld repeatedly. This is primarily because the parameters of a spectacle are difficult to exclude others from. This was upheld in Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) where a neighbour of a racecourse built a platform to view the racecourse and results and then send them to a radio station. The court held that spectacles are not property because they impose on how others use their land. It did hold that someone is able to restrict their neighbours view if they want to, but that if this is not in place, too bad. Categorisation of Property Objects (pg 69)

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Property is categorised into either Real property (land), Chattels Real (lease) and Personal Property (goods). Topic 2: Personal Property, Limits of Land, and Fixtures 2.1 – Introduction to the law of personal property Gray, Foster, Dorsett & Roberts – Chapter 2: pp 43-45; 61-75 Hepburn – Last page of Chapter 1, and Chapter 2, pp 93-103 Parker v British Airways Board [1982] 1 QB 1004

Reading 1: Property is divided into real property (realty) and personal property (personalty), and further get subdivided into the below:

Personalty/ Choses in possession/ Choses in action - These are divided into chattels real (leaseholds – treated as real property) and pure personalty (tangibles and intangibles). - Physical things that are tangible but not land, such as cars, paintings etc. - If a person takes a thing into their possession, they will have some proprietary rights over it, unless they are limited by other people’s superior rights. - Choses in action are intangible rights. Chattels - A moveable property item, like cars, furniture etc. - Some chattel related issues are protected by tort remedies, and to determine the types of rights that apply, one must the precise property interest hat has been infringed.

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It is also necessary to distinguish that there is a difference between ownership and possession.

Actual possession - Two conditions must be met to constitute actual possession: o There must be de facto control over the chattel. o The possessor must show intention to possess or animus possidendi. Right to immediate possession - A person has a right to possession if they are presently out of said possession and have right to take possession f the chattel immediately (for example a hire care scenario). Right to future possession or reversionary interest - A right to future possession is distinct from actual or immediate possession. - Someone with reversionary interest has limited rights to sue (people who are set to inherit land etc) Ownership - Unlike land ownership, where the question of the Crown ultimately owning it is an issue, chattels can be absolutely owned. - The owner of land is therefore more considered to be in possession of said land but has all the rights of ownership. - Ownership is not technically relevant to whether an action can be taken to protect rights to chattels, rather it is whether the owner or anyone in possession had a right to immediate possession or reversionary interest. - If the defendant defends the action on the basis that the plaintiff’s title is inferior to a third party who is not party to the action. This defence is jus tertii. Fragmented property interests – bailment Types of bailment - Bailment fragments property interests in chattels. - A bailment arises where a chattel is delivered by the owner (or person with right to possession) into the possession of another person on the premise that the chattels will be redelivered to the bailor or dealt with as stipulated. For example, hire cars, parking lots. - Bailment at will means that the bailor may demand return of the chattel at any time, and maintains a right to immediate possession. Usually there is a contract that stipulates the conditions of ending. Bailments at will and gratuitous bailments - Not for reward or consideration, only one-party benefits and the other receives nothing in return. - The defining feature is that it is never for a specified term. - The bailee may retain the goods only until the bailor demands their return.

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Gratuitous bailment is the bailment of property to a bailee for no reward, and for the property to be returned upon the demand to the bailor. This can include bailment for the deposit of goods for safe keeping, delivery of goods for work to be done and delivery of goods for a loan.

Actions in tort to protect proprietary interests in chattels. Trespass - Wrongful intentional direct interference with a chattel in the possession of another. - People with a right to immediate possession cannot sue in trespass. - Only a plaintiff who has possession at the time of the interference can sue, unless the bailment is at will (can be revoked at any time), an example of this is if someone has a car in a repair shop and could repossess at any time. - Interference is established when any physical contact is made with a chattel in the possession of another. Conversion - An act intentionally done inconsistent with the owner’s rights, even if the doer does not know of or intend to challenge the possession or property of the true owner. - It is a tort of strict liability so the defendant can commit it without any fault on their part, and therefore ignorance is no defence. - For example, someone selling a stolen good is liable in conversion even if they did not know it was stolen. - Examples include mutilation, unauthorised sale or pawning of the chattel. - In order to be successful the plaintiff must have been in possession or had a right to immediate possession. Detinue - Tortious or wrongful detention of goods and refusal to hand them over to a person who has a right to immediate possession, who has formally demanded their return. - You cannot sue in detinue if you have only contractual possession rights or no right to immediate possession.

Negligence - Negligence is not an intentional tort and is established if the defendant has breached a duty of care owed to the plaintiff, causing damage to the chattel. - It is possible to sue if the plaintiff is in possession of the chattel, has an immediate right to possession or reversionary interest.

Overlapping of remedies - One wrong act may result in two different intentional torts, for example if someone takes a bike in my possession, they can be sued

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for either trespass or conversion, as the act would amount to intentional interference with possession, and an act of dominion inconsistent with title. Conversion and detinue can also overlap, for example at the end of a bailment (rent/ lease etc) a bailee uses a chattel ...