Lecture notes - Property - complete PDF

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Property lecture notes Property lecture notes Personal property - tangible property o computer etc… - intangible o copyright o money in bank o company shares - understand the legal framework that governs property - develop problem solving tools - course not just about conveyencing - rules about dispute resolution - if we have more than 1 person with an interest in the same piece of property bear in mind - property law not logical or rational - it is historical - if we were designing a system of property law from scratch, would look nothing like the one we have - comes from medieval England and France - also the product of political forces

What is property? - things - when a lawyer talks of property  rights to things - legal conception of property must be about more than just the rights of the owner over the thing - property law about the legal relationship of people with respect to things The rights of property Aspects we expect to be present if we describe something as a property right - the right to use and enjoy o hallmark right of ownership - the right to exclude others from use and enjoyment o don’t have to lend it to everyone - the right to alienate o alienate – technical term – transferring ownership from one person to another o don’t say sale – because could be a gif - rights can be shared/fragmented indigenous relationship with land - is it property according to these criteria??? - What might be problems in terms of recognising indigenous rights as property rights?

Property lecture notes -

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Is there a concept of alienation? NO – no right to alienate Mabo decision ‘Property is the description of a legal relationship with a thing – degree of power recognised in law as permissibly recognised over that thing…. A legally endorsed concentration of power’ – Yana v Eden the crown is the only entity that owns real property – land what is it we own when we own the home??? No such thing as genuine ownership o own a right to that real estate concept of full ownership – lodial ownership Indigenous never OWN property – simply have rights to it Mortgage – right to sell up land Contrast property rights with personal rights Personal rights are NOT property o Contractual rights o Rights that you might have in the law of tort – injured o Property rights have a greater sphere of enforceability – have rights over anyone in the world o Personal rights – rights against the other party not against anyone easement – when it is a property right, when you have a right to do something on someone else’s real estate e.g. right of way

Objects of property - the objects of property- things that are capable of being subjected to private ownership – continually expand - we continue to privatise - what are these expanding categories?

Property lecture notes WEEK 1 LECTURE 2 The distinction between real property and personal property

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distinction is significant for historical reasons real – a right to repossession of the res o res – thing o if it was an interest in land – entitled to a court order where by the thing was given back to you o where the expression real property comes from o not that land is any more real – just that traditionally taken from you and you are entitled to a repossession personal – a right to compensation (i.e. the value of the thing taken) o do not have the direct enforcement mechanism o enforced indirectly o owner deprived of possession of a chattel – merely had a right to be compensated for the value of the thing o at common law, property rights protected by the law of tort

corporeal hereditaments - must have a physical being - can actually touch them - we mean rights to the land - title to a piece of land - right to possess that piece of land - own some interest that allows you to possess that land incorporeal hereditaments - easement – sometimes called rights of way

Property lecture notes -

not a right to permanent possession of the land right to merely pass over the land for a particular purpose might not be the local authority – could be an adjoining owner in order to get on and off the neighbours property – need to go through property can agree that there is an easement

personal property 1. pure personalty - choses in possession o can touch and possess e.g. books, motorvehicles - choses in action o intangible o items of personal property you cant touch or possess o in order to convert htem into something of value you have to bring an action – must sue someone o e.g. IP rights, debt, frequent flyer points - chose = French for ‘thing’ 2. -

chattels real leases traditionally thought of as a contractual right of chattel category on their own

What is my land?? - What is owned when we say we are the owner of the land? - ‘Whoever owns the land at ground level, owns it from the heavens to the depths’ - if we took this literally, this would mean that every time an aeroplane flies over your land, the airline would be committing a trespass to land … we don’t take it literally obviously - Bernstein v Skyviews – space above land - In Australia, minerals in the ground are owned by the government – mineral rights are reserved to the crown when the land was opened for sale - If someone tunnels under you land – might have a right to trespass here Fixtures – the general principle Holland v Hodgson - in what circumstances can a chattel become in the law’s view, part of the land on which they are placed?? - The boundary between real property and personal property - When are chattels not personal property because they have become real property? - Three consequnces of a chattel becmng a ficture

Property lecture notes o 1. Ownership of chattel will pass automiatcally with ownership of the land o 2. If a tenant of land brings chatells ont the land and they become fixtures then they become the property of the landlord  e.g. living in a rented house nad put hooks in the house – fixtures that become part of the land – leave them there when you leave o 3. When someone makes a will to give their real property and personal property to differnet people  if a chaettel has become a fixture, it will fall within real property but if it hasn’t then it will be personal property The general principle Holland v Hodgson (1872) LR 7 CP 328, 334-335 (Blackburn J) ‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; … When the article in question is no further attached to the land, then [sic] by its own weight it is generally to be considered a mere chattel’. -

BUT one must consider all the circs of the case, in paritucalr The degree of annexation – the extent to which thigns are attached to the land The object (ie. Purpose) of annexation

‘If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not; if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is’. Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR(NSW) 700, 712 (Jordan CJ) -

just a presumption – presumptions can be rebutted places onus on other party other party can argue that the object or purpose of annexation was not to add to the land

IS IT A FIXTURE? 1. look at degree of annexation – even if low degree, then presumption arises that it is a fixture 2. look at evidence for the object or purpose of annexation a. if person can show that the purpose of fixing was something not with the intention of adding to the land then the item will not be a fixture b. if the land owner can show the items not attached to land with intention to add to the land then items will be fixtures

Property lecture notes STUDY PROBLEM: a) carpets, curtains and light shades – degree of annexation – carpets – very high degree… curtains and light shades also quite high presumption arises (Holland v Hodgson) that it is a fixutre (coraneao).. what is the object or purpose of annexation… clearly adding something to the land… light, shade etc… clearly a fixture therefore must not be removed Carpets - what is the degree of annexation??? To what extent are the classes fixed to the land? - If something is fixed to the land – even if only very slightly, then that gives rise to a presumption that it’s a fixture - This can be rebutted even if something is fixed - Start by looking at whether it is attached - Carpet = attached to floor – yes a fixture - Is there another purpose??? Which would make it not part of the land?? - Meant to stay there o Cut to the size of the room – important consideration o If you tear the carpet up and take it somewhere else wont necessarily fit new premises o Carpet does get worn out o Once its used it doesn’t look as nice o If it is a rug then its different Curtains - are they a fixture?? - Generally regarded as being part of house - Customised point - Most of the time… curtains are customised - Measures windows - Presumption not rebutted Lightshades - need to know a bit more about the particular lightshades

b) fitted timber bookcases which had been nailed to the wall Belgrave Nominees v Barlin-Scott Airconditioning (Aust) Pty Ltd (1984) VR 947… connection might be slight but still clearly meant to be attached to land.. cannot be removed … book cases are fitted which suggests they were made for the particular spot they were fitted into -

high degree of annexation presumption they are fixtures

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is there anything we can point to that shows the intention or purpose was other than to permanently attach them?? Can the presumption be rebutted??? Might only nail it to the wall because worried it wouldn’t stand up straight Consideration that tends to show that the object of annexation was not to permanently enhance the room, not to add to the land This is just a consideration associated with the effective use of the thing Even though the book cases are attached to the wall, then they’re not fixtures because the object/purpose of annexation is not to permanently enhance the land – some other consideration Book cases are said to be ‘fitted’ – custom designed for the room Made and measured for the particular room What we have is book cases that go all the way around the wall think about was it a condition of the lease that the previous tenant enhanced the space in that way?

dishwasher clearly a fixture installed in a custom built cupboard connected with plumbing in staff amenities room why would it not be a fixture?? – clearly an integral part of the kitchen yes a fixture

How could this dispute have been avoided? - spell out in the contract what is included and what is not included - terms of contract will override general law about fixtures - can provide whatever you like in the contract - in the contract, can say that something which is a fixture is not included in the sale or vice versa

WEEK 2 LECTURE 1 Concept of possession and its place in the law of personal property -

property law fundamentally about the right to possess things and the right to exclude others from things right to possess – right to exclusive physical control of a thing ‘[A] person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to possession’ o Sackville and Neave Australian Property Law 2.1, p 93 o A lot of talk about possession

Property lecture notes

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o If you possess something, even as a wrongdoer (if stolen from someone else) somehow you have rights over that thing which you can enforce against others Meaningful to talk about control in terms of tangible rights Can prevent others from using something Possession understood as control Could have a property right which is good against everyone in the world – except someone who has a superior right to a possession At common law property rights have not been enforced directly… been enforced indirectly Court says wont give order possession for a thing

Indirect enforcement of property rights - trespass to goods o defendant wrongfully interferes with the plaintiffs lawful possession of the thing o don’t have to prove loss for any other trespass o but need to prove loss here o not able to defeat a claim by pleading that the property belongs to someone else …. Doesn’t matter who true owner is o John owns bike, Mary stole it  I steal bike – trespass to goods – mary would succeed even though its not hers to start with  Superior title to me but not to john  John reclaims bike by stealing it back – true owner so mary would not succeed against John if she sued him for trespass to goods - Conversion (trover) o Defendant deals with the goods in a way which is inconsistent with the rights of the owner  E.g. mary lends bicycle to me, obtained possession of bike lawfully, then sell bike to James – mary cannot sue for trespass to goods because obtained possession lawfully – had a lawful right to possess  What I did wrong – acted in a way inconsistent with mary’s rights – sold bike to james  Mary able to sue for conversion – mary a person at time when I sold bike to james – she had a right to possession – right to get bike back at the end of the period for which she lent the bike  Inconsistent with the basis of the relationship - Detinue o Mary lends bike for an hour – afer an hour has passed I refuse to give it back o Committed the tort of detinue o Mary has an immediate right of possession of the bike o She can demand that I return possession

Property lecture notes o This differs from trespass and conversion – remedy is damages o Detinue – remedy is either the monetary value of the goods, or there is specific restitution of the goods If we have a contract for the sale of land – property law and contract law are both relevant - is this thing that is attached to the land part of the land? - Property law tells us that this is something which is property which we had a right of possession o Tort – person interferes with right of possession and therefore can sue - Cannot understand them in isolation

OBSERVATIONS 1. relatively of title is related to the idea that property rights are about whether someone can demand something or withhold something from another particular person – always talking about ‘can I demand this from you?’ or ‘can I exclude you from the use of this thing?’ – always 1 person relative to another (NB private law a lot about this …) a. Mary whose bike I took would be able to succeed in an action of trespass against me – not able to defeat action by saying that the bike belonged to John – interested in the relativities of title between Mary and me i. John would be able to sue Mary for trespass – but different action 2. How does a person get property rights in the first place? There is something about possession a. John – true owner of bike – maybe John acquired his property rights because he bought it from someone, perhaps someone made a gif to John or perhaps John found bike abandoned and restored it… different ways of acquiring rights – common element has to do with possession or control STUDY PROBLEM – FRAN - engaged plumber to do repairs - found a bracelet hidden under the house plumber the finder – acquires a possessory title by finding – Parker but Parker recognises that the finders rights wil yeiled to the occupier rights has the occupier exercised control over premises and things that may be found on it? Fran would win if applying parker …. Suspect the package was hidden – got a strong idea – reasonable inference What is the other persons possessory right based on? Fact that the person might have been a theif is beside the point What does matter is whethr the young person has possession of it

Property lecture notes Does that person possess it??? Is there sufficient control?? There is someone that might have a better claim than the occupier of the house

Essay -

virtual property IP doesn’t matter Should it be??? Is it property? – probably wont be able to draw a firm conclusion giving the nebulous conception of property Does virtual property have features of property? First part is descriptive…. Probably going to say ‘don’t know’ about whether it is property ‘Should it be’ part is free virtual property can have real world consequences not a problem solving exercise up to us to determine what criteria, policy considerations – efficiency, fairness, we want to bring in be selective in what you chose to talk about

PROPERTY RIGHTS OVER LAND Relativity of title ‘the general principle is that a person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to possession’ -

who has the better right? How can possession give you title? Historical origins that explain the central role of possession Equally applies to wrongdoers

History of property law - court would give land back - but if it was personal property you would get compensation - differences in remedy were important - land was special – that was why the remedy of getting it back applied to land - leases were an anomaly – lease is an interest in land – historically categorised as personal property o If a tenant was dispossessed – either by landlord or another party – they could not recover possession… they could get compensation - Common law developed a special action for tenants to recover possession - To bring an action in ejectment – don’t have to prove seisin… only have to prove possession

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Possession becomes central to the law because of its role in the action for ejectment Because it was easier to maintain and easier to prove, the action for ejectment became used by everybody with a property interest (freehold estate, leashold..) If wrongfully dispossessed, everyone could bring an action

Section 20 – civil procedure act 2005(NSW) Claims for possession of land ‘a claim for judgment for possession of land takes the place of a claim in an action for ejectment that could have been brought under the practice of the SC as it was immediately before 1 july 1972’ Mabo –plaintiff’s claims 1. common law recognised native title – recognition of indigenous law and therefore important symbolically – but if you think about it practically, the second claim would have given indigenous people a fee simple and therefore a better right - native title is not even really a form of ownership – but this is symbolic 2. they had common law possessory title, ie at the time of the crown’s acquisition of the colonies, the meriam people were in possession of land and the crown could not show a better right to mesne (pronounced main) profits importance of possession as a source of rights – relativity of title – crown did not have a better right Read Toohey J in Mabo - ‘possession gives rise to rights, including the right to defend possession, or to sell, or to pass by will – the purchaser or the heir takes what the predecessor had o devise – legal terminology that we use for making a gif by will – can sell your possessory title or leave it to someone in will o possessory rights can be passed on to other people -

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possession gives rights even when ‘tortiously acquired’ – the possession is presumed to be lawful and to comprise the fullest interest possible (‘ownership’) o ‘a possessor acquires a fee simple estate because the fullest estate known to the law is presumed until a lessor estate is proved’ o fee simple – closest to full ownership when possession is lost, the new possessor has the full rights of possession as between possessors, prior possession is a better right – in losing possession, a p...