Property Law 1 Cheat Sheet PDF

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CHAPTER 1: THE NATURE OF PROPERTYProperty is a dynamic legal concept which typically concerns a perpetual legal relationship with an object separate from ourselves (rather than the object itself), which is enforceable against third parties. That object may be subject to many competing proprietary in...

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CHAPTER 1:

THE NATURE OF PROPERTY

Property is a dynamic legal concept which typically concerns a perpetual legal relationship with an object separate from ourselves (rather than the object itself), which is enforceable against third parties. That object may be subject to many competing proprietary interests. There are two main steps to understanding property, being to identify what kinds of rights the law regards as proprietary, and then to identify the kinds of objects that can be subject to proprietary rights. Traditionally, property has generally been seen as a “bundle of rights”, consisting of “…the right to use or enjoy, the right to exclude others, and the right to alienate”: Milirrpum et al v Nabalco Pty Ltd (1970) 17 FLR 141, but this has limited value as an analytical tool, since an infinite variety of rights and limitations and conditions may be placed on those rights (see majority in Yanner v Eaton (1999) 201 CLR 351). Property can also be classified by rights in personam (e.g. contractual rights) and rights in rem, whether the property is real or personal, whether it is a corporeal or incorporeal hereditament, and whether it is imperium or dominium ownership. A classification of interests based upon enforceability, rather than the nature of the object, is probably best, since it will help to identify the legal nature of the interest, how it is created, and the sanction and remedies available for enforcement. Proprietary interests should be enforceable against third parties and not just the grantor of that interest, but merely because a right is enforceable against third parties, does not mean it is always a proprietary interest. Reference to “quasi property” rights is unsatisfactory. It is extremely important as to whether a right over an object is classed as proprietary, as this will determine access to that object, the value of the rights attaching to that object, and how the law will recognize and enforce such a right. The method the court adopts to determine whether property rights exist is critical to the outcome. Compare e.g. Milirrpum et al v Nabalco Pty Ltd (1970) 17 FLR 141 (characteristics approach) with Mabo v Qld (No 2) (1992) 175 CLR 1, and Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (categories approach). The boundaries as to what is recognized as property “…are the interfaces between accepted and unaccepted social claims” (see Dorman v Rogers (1982) 148 CLR 365 at 372 per Murphy J), and this is particularly problematic when it comes to the human body (see Moore v Regents of the University of California 793 P 2d 479 (1990)). There can be property in human tissue: Roche v Douglas [2000] WASC 146, but there is clearly a reluctance on the part of both the Commonwealth and Western Australian legislature to permit the commercial development of human tissue: see e.g. s 18(2)

Patents Act 1990 (Cth), s 29 Human Tissue and Transplant Act 1982 (WA), and the Human Reproductive Technology Act 1991 (WA). There are various philosophical schools of thought on private property, not one of which offers a complete justification for the institution of private property. Each school of thought is typically a reflection of the history of the period to which that writer belongs. The concern is not so much about the existence of property, but how those rights are distributed in society and the impact of such distribution of rights. Yanner v Eaton (1999) 201 CLR 351 at 365-6 per Gleeson CJ, Gaudron, Kirby and Hayne JJ“… The word property is often used to refer to something that belongs to another. But…property does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of property may be elusive. Usually it is treated as a ‘bundle of rights’. But even this may have its limits as an analytical tool or accurate description and it may be…that ‘the ultimate fact about property is that it does not really exist: it is a mere illusion’.”

Wily v St George Partnership Banking Ltd (1999) 84 FCR 423 at 426 per Sackville J“From a lawyer’s perspective, the concept of property is inextricably interwoven with the content of legal rules and principles. As Jeremy Bentham observed… ‘Property and law are born together … ; take away laws, and property ceases’.”

Fejo v Northern Territory (1998) 195 CLR 96 at 150 per Kirby J– “… in every society, rights in land which afford an enforceable entitlement to exclusive possession are basic to social peace and order as well as to economic investment and prosperity.”

CHAPTER 2:

THE NATURE OF LAND

Although the meaning of land has been defined by statute (Acts Interpretation Act 1901 (Cth) s 22, Interpretation Act 1984 (WA), s 5), an understanding of the common law limits to land is necessary to understand and apply the statutory definitions. There can be a conveyance of airspace (see e.g. Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 at 91) or minerals (Cox v Glue (1848) 136 ER 987) or trees (Cth v NSW (1923) 33 CLR 1 at 4) separate from the land. The traditional common law rule cuius est solum est usque ad coelum et ad inferos has probably been modified in Australia such that “the relevant test is not whether the incursion interferes with the occupier’s actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary use of the land which the occupier may see fit to undertake” (see LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 495). Note ss 4-5, Damage by Aircraft Act 1964 (WA). Also note Damage by Aircraft Act 1999 (Cth). Gold, silver and other precious metal belongs to the Crown (s 9(1) Mining Act 1978 (WA), as do other metals not alienated before 1 January 1899. Petroleum and helium under private land belong to the Crown (s 9 Petroleum Act 1967 (WA)), and public roads (s 55 Land Administration Act 1997 (WA)). While the tidal boundary to land is the mean high water mark, the doctrine of accretion can change the water boundary of land where the change in the position of the waters edge is imperceptible to the naked eye (Hazlett v Presnell (1982) 149 CLR 107 at 116) and the accretion or erosion results from natural processes. The effect of the maxim quicquid plantatur solo, solo credit is that generally, once a chattel becomes a fixture, ownership in the chattel vests in the owner of the land. In the absence of express contractual terms, the degree of annexation test and the object of annexation test have been formulated by the courts to determine if an object is a chattel or a fixture. See Holland v Hodgson (1872) LR 7 CP 328 at 335 – “There is no doubt that the general maxim of the law is that what is annexed to the land becomes part of the land, but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz, the degree of annexation and the object of annexation. When the article in question is no further attached to the land than by its own weight, it is generally to be considered a mere chattel. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land . . . on the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that

it is never intended to be part of the land, and then it does not become part of the land … Perhaps the true rule is that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel.” While the degree of annexation test remains important for apportionment of the onus of proof, the object of annexation (assessed objectively) at the time of affixing has become more important (Eon Metals NL v Commissioner of State Taxation (1991) 91 ATC 4814 at 4845) but the focus of the Courts now is to have regard to “all of the circumstances” (Palumberi v Palumberi (1986) 4 BPR 9,106). Section 47 Residential Tenancies Act 1987 (WA) governs the right of a tenant under a residential tenancy agreement to affix and remove fixtures. A tenant who remains lawfully in possession of premises even after expiration of the lease is permitted to remove trade, domestic, or ornamental objects affixed to demised premises by the tenant during the lease term, provided that such removal would not destroy the essential character or value of the objects: D’Arcy v Burelli Investments Pty Ltd[1987] 8 NSWLR 317. Removal of agricultural fixtures is not permitted. For fixtures in the mining industry, see TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49 (15 December 2010). Goods which are subject to hire purchase or a security interest and which have subsequently become affixed to land shall be deemed not to have become fixtures, but the right of the owner to repossession can be defeated by a third party who acquires an interest in the land for value and without notice of the owner’s interest: see s 27 Hire Purchase Act 1959 (WA) and s 6 Chattel Securities Act 1987 (WA),. However, please note Personal Property Securities Act 2009 (Cth) took effect in February 2012. Property in goods can change under the doctrine of accession where it is no longer possible to easily separate the chattels. See e.g. Rendell v Associated Finance Pty Ltd [1957] VR 604. The Supreme Court has special power to grant relief in cases of encroachment (s 122 PLA) and mistake as to boundaries or identity of land (s123 PLA). Fructus industriales are regarded as chattels and fructus naturales are regarded as part of the land. Unless otherwise agreed, trees belong to the person on whose land the trees are planted: see Cth v NSW (1923) 33 CLR 1 at 34.

Interpretation Act 1901 (Cth) s 22 Meaning of certain words (1) In any Act, unless the contrary intention appears, (c) Land shall include messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein Interpretation Act 1984 (WA) s 5 Definitions applicable to written laws In this Act and every other written law — “land” includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land REIWA Joint Form of General Conditions for the Sale of Land 2009 Revision Condition 26.1 Land means the land which the Seller has agreed to sell to the Buyer including all improvements and other fixed improvements on that land.

CHAPTER 3:

POSSESSI ON,AND TI TLE

Possession is a common law source of a proprietary interest both in goods and land which may be conferred by ownership, and is often a root of title. E.g. possession of land is prima facie evidence of a right to possession of title (see Asher v Whitlock (1865) LR 1 QB 1 regarding possessory title to land). To exist, possession needs to be factually demonstrated by physical control and an intention to possess, although a registered proprietor will be presumed to be in possession in the absence of any evidence to the contrary. On the other hand, ownership requires the proof of legally enforceable rights in rem, and comprises the entire bundle of rights which make up that proprietary interest. A person who has possession, but does not have title enjoys rights which may be enforced against third parties if their rights are subsequent to those of the possessor.

Against a wrongdoer,

possession is title (provided that a trustee may not acquire possessory title against beneficiaries: Allen v Roughley (1955) 94 CLR 98). Also see Jeffries v The Great Eastern Railway Co (1856) 119 ER 680; The Winkfield [1900-3] All ER 346. Control (without necessarily knowledge) is the key factor in establishing possession of goods (e.g. Young v Hichens (1844) 115 ER 228), but the nature of the object and general acts of possession are also relevant (The Tubantia [1924] P 78). With land, regard must be had to the nature, characteristics and value of the land in assessing physical control: Lord Advocate v Lovat (1880) 5 AC 273 at 286. “Jus tertii” essentially means that a tortfeasor cannot use the victim’s dealings with others to relieve the tortfeasor from the consequences of his wrongful act. While the defence is available in limited circumstances with goods (e.g. the tortfeasor’s acts were committed with the true owner’s consent, or the plaintiff was never in actual possession), the better view is that it is not available in relation to possessory claims over land, since it is contrary to relativity of title and would mean the possessor would have to prove a better title than the rest of the world (e.g. Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423 at 427). With land, this means that proof that a third party has a better title will only defeat a plaintiff who has no present right to possession. The general rule that rights of third parties should be ignored can be unjust (e.g. Wilson v Lombank [1963] 1 All ER 740). “Lost” does not mean the same as “abandoned” since the latter denotes a delivery up of intention to reclaim. See Re Jigrose [1994] 1 Qd R 381. On the rights and obligations of a finder and the rights and liabilities of an occupier, see Parker v British Airways [1982] 1 QB 1004. So, where goods are found in a place which is not subject to an occupier’s manifest control, the finder will have good title against all but the true owner, but if the goods are underneath or attached to private land, the owner and occupier will acquire title against all but the true owner. See e.g. Waverley Borough Council v Fletcher [1996] QB 334. However, also

consider found property and the determination of who is entitled to found property in light of Criminal and Found Property Disposal Act 2006 (WA), Part 6 It is from the concept of seisin involving fee simple possession of land that the important concept of relativity of title emerges, i.e. no proprietary interest in land is absolute, and will always be defeated by a superior possessory right. The predication of title based on possession is evidenced by the recognition of adverse possession as an exception to indefeasibility of title: see ss 68, 222-225 Transfer of Land Act 1893 (WA) and Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 166. Adverse possession is the possession of land by those against whom the true owner has, or is deemed to have, an accrued right of action (see Middleton v Young unreported 17/3/1969 SCWA Library No 00634), with accrual occurring when an owner while in possession has been dispossessed or has discontinued possession (s 66 Limitation Act 2005 (WA)). It requires factual possession (“open, not secret, peaceful, not by force, and adverse, not by consent” - Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475) and animus possidendi and is construed in accordance with the meaning given to possession under the law of limitations: see McWhirter v Emerson-Elliott [1960] WAR 208 at 214-215. On the effect of adverse possession on the documentary title, see McGellin & Fuchsbichler v Button [1973] WAR 22 at 25, and s 75 Limitation Act 2005 (WA) which provides that a person’s right and title to land is extinguished. On the rules governing adverse possession, carefully review relevant provisions of Limitation Act 2005 (WA). Note the exclusion of crown land (s 76). On successive periods of adverse possession, note s 65 (2). On the accrual of a cause of action to a landlord by a former tenant in possession, see s 72. The commencement of the limitation period can also be postponed and the limitation period can be extended or postponed normally in the case of mental disability, or fraud: see Part 3, Limitation Act 2005. Time will stop running when the true owner asserts his or her title. Some practical remarks on adverse possession. Most land is sold in WA under the REIWA Joint Form of General Conditions for the Sale of Land 2009. See conditions on Seller’s warranty. If parties seek to negotiate a settlement to an adverse possession claim, the possessor should be careful since making an offer e.g. to purchase the land may constitute an acknowledgement of the documentary owner’s title, thereby destroying the possessory interest, but see e.g. Phillips v Marrickville Municipal Council (2002) 11 BPR 20,135. Mabo v State of Queensland (1992) 175 CLR 1 at 210 per Toohey J “In sum, English land law, in 1879 and now, conferred an estate in fee simple on a person in possession of land enforceable against all the world except a person with a better claim.”

Parker v British Airways [1982] 1 QB 1004 at 1013 per Donaldson LJ, quoting South Staffordshire Water Co v Sharman [1895] 2 QB 44 “The possession of land carries with it in general…possession of everything which is attached to or under the land, and in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence. But this de facto possession [rests on an] occupier’s general power and intent to exclude unauthorised interference…

McGellin & Fuchsbichler v Button [1973] WAR 22 at 25 on adverse possession. “It extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession, and resting on the infirmity of the right of others to eject him.” LIMITATION ACT 2005 (WA)

19.

Recovery of land - 12 years

(1)

An action to recover land cannot be commenced if 12 years have elapsed since the cause of action accrued.

(2)

Despite subsection (1), an action to recover land may be commenced at any time if it is brought (a)

by the Crown or a person claiming through the Crown; and

(b)

on a cause of action which accrues to the Crown.

65.

Adverse possession

(1)

A cause of action to recover land does not accrue unless the land is in adverse possession and if, under this Act, such a cause of action would have accrued at a certain time but the land is not in adverse possession at that time, the cause of action does not accrue unless and until adverse possession of the land is taken.

(2)

Subject to subsection (3), if (a)

a cause of action accrues to recover land from a person in adverse possession of the land; and

(b)

afterwards, the land is in the adverse possession of a second person, whether the second person claims through the first person or not,

the cause of action to recover the land from the second person accrues when the cause of action mentioned in paragraph (a) accrues. (3)

If a cause of action to recover land accrues and afterwards, but before the limitation period for the action expires, the land ceases to be in adverse possession, the cause of action does not accrue unless and until adverse possession of the land is taken again.

66.

Dispossession or discontinuance

A cause of action to recover land by a person who has been in possession of the land and, while entitled to the land, is dispossessed or discontinues possession, accrues when the person is dispossessed, or discontinues the possession. 67.

Deceased in possession

A cause of action to recover the land of a deceased person (whether under a will or on intestacy) accrues when the decea...