Personal prop cheatsheet final PDF

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Week 1:property has two distinguishing qualities, it is a assignable or transferable right where property is regarded as assets which views them as a contractual right, it is enforceable. Property must have a corpus and occupy space.To put it at its simplest, property law is about the legally recogn...

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was asked to leave, which he refused to, as a result, he was removed. The Plaintiff sued the racecourse operator on the ground that as a licensee he had a right or property has two distinguishing qualities, it is a assignable or transferable right permission to be on the premises, that the contract element of the license was a where property is regarded as assets which views them as a contractual right, it is promise by the racecourse operator not to revoke that permission, and that in enforceable. Property must have a corpus and occupy space. breaching that promise the licensor had assaulted the licensee. The licensee To put it at its simplest, property law is about the legally recognised relationships therefore sought damages for assault. we have with each other in respect of things. In respect of personalty the Personal Property Securities Act 1999 states in s4 that The Court held that the licence was a mere permission to enter. The contract personal property “includes chattels paper, documents of title, goods, intangibles, gave the Plaintiff a right to remain as long as he behaved. When he misbehaved and refused to leave, his licence was revoked and he became a trespasser. The investment documents, money and negotiable instruments.” Section 119 of the racecourse operator had the right to evict him. In the circumstances, as no more Contract and Commercial Law Act 2017 defines goods to include “(i) all kinds of movable personal property, including animals; and (ii) emblements, growing crops, force than necessary was used, no action for damages would succeed. and things attached to, or forming part of, the land that are agreed to be severed before sale or under the contract of sale; and (iii) computer software; but (b) does Hohfeld Fundemental Legal Conceptions as Applied in Judicial Reasoning and not include money or things in action.” For the purposes of the Crimes Act 1961, Other Legal Essays: he argued that right and duty are often correlative concepts. under s2 “property includes real and personal property, and any estate or interest personal rights are enforceable against “a single person or one of minuscule in any real or personal property, money, electricity, and any debt, and any thing in aggregations of identical rights that are enforceable against “a few definite action, and any other right or interest”. persons” whereas property rights comprise “a large class of fundamentally similar Moore v Regents of the University of California the issue was whether Moore has yet separate rights which correspond to the obligations of “a very large and any cause of action against the doctor. It was decided that he had, but the majority indefinite class of persons.” held that he had only a personal action for breach of the doctor’s disclosure obligations. The issue that divided the majority from the minority was therefore International News Services v Associated Press: both were competitors in gathering whether Moore could be said to have property rights in the cells which had been and distributing news in USA. AP claimed an injunction, inter alia, to restrain the D removed from his body. A person cannot be said to have “property” or from copying news reports from bulletin boards and from early editions of its “ownership” in his own body cells once they have been excised from his body. members news papers. DC did not grant injunction, taken all the way to supreme court where Mr Justice Pitney held that in considering the general question of prop Oxford v Moss - University of Liverpool, Student dishonestly took exam paper. in news matter, it is necessary to recognize its dual character, distinguishing Alleged the student stole the information on the paper, not the paper. Property in between the substance of info and form of words in which writer has confidential information in an exam paper(?). Not theft because he intended to communicated it. The news element is not creation of the writer. Held valuable return it. This is because the definition of “intangible property” under the Theft property interest in news cannot be maintained. News of current events is Act (UK) did not include confidential information. common property. Generally when two parties are in business they are expected to conduct their business so it does not unfairly injure the other parties. Doodeward v Spence (1908): Ratio: (High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been Cohen in “Dialogue on Private Property”: He questions whether private property preserved in a bottle. exists or whether it is a construct of the mind, he differs slightly from Blackstone Held: An order was made for its return: ‘If, then, there can, under some who argued private property a mans control over a thing Cohen says its not only circumstances, be a continued rightful possession of a human body unburied, I that but it can be intangible-copyright, patents, he says its to do with social think, as I have already said, that the law will protect that rightful possession by relations. Social relations he said it’s the relationship between two parties that appropriate remedies. I do not know of any definition of property which is not makes the content youre discussing property, it is the right to include and exclude wide enough to include such a right of permanent possession. By whatever name someone from prop. Property and wealth, economic value is not necessary for it to the right is called, I think it exists, and that, so far as it constitutes property, a be defined as property. He also talks about rights to sell is not distinct form of human body, or a portion of a human body, is capable by law of becoming the property, sometimes you own something but cant sell it- prop in a trust, leases. He subject of property. It is not necessary to give an exhaustive enumeration of the concludes that label of property can be attached if you can keep off X unless you circumstances under which such a right may be acquired, but I entertain no doubt give permission with can be granted or withheld signed private citizen and that, when a person has by the lawful exercise of work or skill so dealt with a endorsed by the state. Exclusions which individuals can withhold and impose that human body or part of a human body in his lawful possession that it has acquired the state endorses. some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it Gray, “Property in Thin Air” [1991]: Kevin Grey states in Property in thin air on delivered to him for the purpose of burial, but subject, of course, to any positive page two of his journal that ;" whatever the maxim cuius est solum .... to the law which forbids its retention under the particular circumstances.’ common lawyer of earlier centuries it has since become obvious that its legal Higgins J (dissenting) said that no one could have property in another human meaning is now heavily qualified by the advent of more recent technologies “ he being, live or dead. acknowledges like Sprankling the lack of knowledge in Blackstones era in regards of geology also that science and technology has progressed to a level so advanced , Cowell v Rosehill Racecourse (1937): the Plaintiff had bought a ticket to enter the Grey recognises that which , although it is hard to determine land in the modern racecourse and watch the races. It was alleged that he had misbehaved and so he world we need to take a logical and clear approach. Grey notes that for legal

Week 1:

purposes there must be a clear distinction between the upper and lower stratums of airspace although it is agreed that the maxim cuius est solum ... has no relevance at all to the Higher of the strata and if the “usque as coelum" was to be taken seriously it has now been restricted to landowners rights over airspace are clearly restricted to the"lower sratum" which is basically the immediate superadjacent airspace which the landowner can reasonably enjoy and have a purpose for the use of his land at ground level. As Justice Douglas once said in the United States Supreme Court , the landowner must have “ exclusive control of the immediate reaches of the enveloping atmosphere" since otherwise “ buildings could not be erected , trees could not be planted , and even fences could not be run" . Grey further acknowledges that that upper stratum does not belong to anyone but the world he says it falls into the category of res omnium communis (space as the common heritage of mankind) .Although with regards to the boundary between the upper and lower stratum and where it begins and ends this has never been fixed. Although there is a range of cases and laws along with a bit of logical thinking from scholars which make it a bit clear to us. In most cases the lower stratum is unlikely to reach beyond an altitude of 200metres above the roof of a house, flat building etc . if it were to do otherwise this would result in in an action for trespass by every plane which passes over a suburban garden and i suppose in regard to the “floodgates arguements" for claims it is more beneficial to have a plain recognition in common law and in modern legislation such as the Civil Aviation act where it states that in Britain, no aircraft may ever fly “ closer than 1500 feet to any person, vessel, vehicle or structure" although an exception is made for aircraft “while landing or taking off and even for gliders “ while hill soaring" . We have learnt that from the case of Bernstein of Leigh (Baron) v Skyviews and General Ltd (1978) Q.B. 479 that the higher stratum of airspace is not part of owners property although in certain circumstances like the case of Woolerton and Wilson ltd v Richard Costain ltd (1970) 1 W.L.R. 411, 413D you may base an action in tort for trespass if control of the lower stratum was necessary for owner to have reasonable use and enjoyment of land. Kevin Gray proposes that the criterion for defining property is 'excludability'. Using this criterion to measure 'propertiness' of a subject, a plaintiff may succeed in his claim that his property rights had been expropriated by another so far that the other person had affected his control of access of the property. In contrast, if the defendant's action had merely prejudiced the plaintiff's access to the resource but the plaintiff had not control over the access of the resource, then there is no "property" to which the plaintiff can assert has been infringed upon. I asked myself the question after reading this passage featuring this proposition of 'excludability' - Should the criterion of excludability be used to demarcate the extent of a person's property right in a subject? I suppose there is a certain 'normative' aspect into the inquiry 'What is property' since the High Court of Australia in Victoria Racing and Recreation Grounds Co Ltd v Taylor have foud themselves diverging in their decisions due to the different opinion upon the concept of property. The minority judges found a misappropriation of "property" in the sheer fact that the defendatns had diminished the plaintiff's access to the benefits of certain resources. By contrast, the majority found that there had been no taking of "property", precisely because the defendants' conduct could never in any event have deprived the plaintiff of control over access to thsoe resources. I think that Kevin Gray is most likely correct in his proposition of the criterion of excludability to defining property. Let me take an analogy to demonstrate why I believe this is so. I may have access to use an unoccupied classroom around law

school at NUS to study. If another person had occupied the classrom before me, my 'access to enjoy the classroom' has been prejudiced. However, this does not mean that the other person has prejudiced me of any property rights since I had no control over the access over the classroom such that I could exclude this other person from using the room. Garrett Hardin’s in “Tragedy of the Commons” this takes about the overuse of scarce resources. Social relationship & disposition: relationship involves the correlation of rights and responsibilities. Disposition also relates to the power to transfer and alienation of property and exclusion of people from the property. Hardin argued that if individuals relied on themselves alone, and not on the relationship of society and man, then the number of children had by each family would not be of public concern. Parents breeding excessively would leave fewer descendants because they would be unable to provide for each child adequately. Such negative feedback is found in the animal kingdom.Hardin said that if the children of improvident parents starved to death, if overbreeding was its own punishment, then there would be no public interest in controlling the breeding of families.Hardin blamed the welfare state for allowing the tragedy of the commons; where the state provides for children and supports overbreeding as a fundamental human right, Malthusian catastrophe is inevitable. Hardin also pointed out the problem of individuals acting in rational self-interest by claiming that if all members in a group used common resources for their own gain and with no regard for others, all resources would still eventually be depleted. Overall, Hardin argued against relying on conscience as a means of policing commons, suggesting that this favors selfish individuals – often known as free riders – over those who are more altruistic. In the context of avoiding over-exploitation of common resources, Hardin concluded by restating Hegel's maxim (which was quoted by Engels), "freedom is the recognition of necessity". He suggested that "freedom" completes the tragedy of the commons. By recognizing resources as commons in the first place, and by recognizing that, as such, they require management, Hardin believed that humans "can preserve and nurture other and more precious freedoms". Milirrpuum v Nabalco Pty Ltd: Blackburn J stated that property generally implies the right to use or enjoy property, the right to exclude other people from the property. It must always involve the right to exclude others from doing something on the property or to the property. Property Rights and Contractual rights: contracts creates duties and obligations and don’t always confer rights over things, whereas property rights are rights over things. Licence as Contracts: licence is where a landowner gives permission to another to carry out certain activity on the land, activity that without the permission would have been considered trespass, this licence creates a contract. Personality: idea that property enables an individual to prove their worth through self-exertion as an expression of self. Mabo v Queensland (No2): The Mabo decision altered the foundation of land law in Australia by overturning the doctrine of terra nullius (land belonging to no-one) on which British claims to possession of Australia were based. This recognition inserted the legal doctrine of native title into Australian law. The judgments of the High Court in the Mabo case recognised the traditional rights of the Meriam people to their islands in the eastern Torres Strait. The Court also held that native title existed for all Indigenous people in Australia prior to the establishment of the British Colony of New South Wales in 1788. In recognising that Indigenous people in Australia had a prior title to land taken by the Crown since Cook's declaration of possession in 1770, the Court held that this title exists today in any portion of land where it has not legally been extinguished. The decision of the High Court was

Chose in action is a technical legal expression used to describe all personal rights of property which can only be claimed or enforced by action, this is, by the taking of proceedings through the courts, and not by taking physical possession Examples include debts of all kinds, the benefits of contracts, policies of insurance or assurances, negotiable instruments, company shares, beneficial interests under wills and many other property interests A chose in action, being in effect a mere right to recover by action, has no actual local existence, but a locality is attributed to it The distinction between common law and equity still permeates the law of choses in action Legal choses in action: these are choses which could formerly be enforced by action at law Equitable choses in action: these choses are creatures of equity, having originated in Chancery, and were once enforceable only in that jurisdiction. This classification 2.Was Australia actually a terra nullius? plays a particularly important role in determining how choses are to be assigned. Ruling: The aboriginals have a connection to the land, but not proprietary one: Apart from certain choses which have their own special rules for the transfer of legal ownership and assignments by and to the crown, choses in action may be A proprietary relationship implied ‘the right to use or enjoy, the right to exclude transferred as follows: By assignment under the PLA 1952, now repeals, although others, and the right to alienate’. This was not demonstrated by the Plaintiffs, who only had a ‘religious relationship’ still applying to assignments coming into operation before 1 Jan 2008, or under the PLA 2007 By assignment in equity with the land. Choses are transferred by operation of law on death or bankruptcy. Generally, ~The court did recognise the existence of Aboriginal laws, which challenges the under a will or on an intestacy, choses pass to executors or administrators second criterion for terra nullius. In practice, beneficial ownership of choses is also often conferred by declaration of Though no sovereign government existed, laws which regulated the lives of trust. This may comprise either a declaration by the legal owner that he holds the Indigenous Australians did exist. property on trust for another, or a transfer to a trustee under the donor’s direction However, the court was not willing to overturn terra nullius. that the property is to be held on trust for the beneficiary Victoria Park Racing and Recreation Grounds Co Ltd v Taylor: Facts: P owns and Words expressing an intention to assign will not normally be construed as a operates race track. D broadcasts race coverage by radio from vantage point of structure outside of racetrack without permission. Some people do not go to the declaration of trust races because they can listen to the broadcast. D uses written materials produced It has been said that where a chose conveys the right to sue the debtor, that right cannot be assigned to the debtor as he cannot sue himself. by P to help in broadcast. Issue(s): Does a person have a property right in spectacles that take place on their land against people off their land disseminating Week 2: and/or describing them?Ratio: There is no property right in spectacle. People are entitled to do what they want on their own land subject to certain limits (e.g. Possession requirements: involves a degree of physical control over the think or nuisance) and that includes watching you.Analysis: There are no regulations on legal control that is temporary. In order to establish possession there must be this topic control of the item and animus possideni or intention to possess. It is temporary eg -A person can build on their land what they like (Rogers v Rajendro Dutt) -There is no general right of privacy (Tapling v Jones) There is no property right in tenant example they have the right to possess and occupy but this terminates. spectacle, and even if there were it would be necessary to show that dissemination wrongs that right. -e.g. simply displaying facts does not prevent all Nemo dat quod non habet, literally meaning "no one [can] give what he does not others from repeating them for the length of the copyright. D's broadcast does not have" is a legal rule, sometimes called the nemo dat rule, that states that the purchase of a possession from someone who has no ownership right to it also interfere with the enjoyment of the land either by making it less suitable for its denies the purchaser any ownership title. This rule usually stays valid even if the purposes or disturbing patrons. purchaser does not know that the seller has no righ...