Property Law A notes PDF

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Property Law A notes Table of Contents Concepts of Property................................................................................................................................... 1 Defining Property.................................................................................................................................... 1 Property as a legal relationship............................................................................................................ 2 Occupational theory............................................................................................................................ 3 Labour theory...................................................................................................................................... 3 Idealist personality theory................................................................................................................... 3 Economic theory.................................................................................................................................. 4

Concepts of Property Noun: -

My ‘property’- My car, my book my land

Legal relationship: -

I have ‘property’ in that land, In my phone

Defining Property Moore v Regents of the University of California 793 P 2d 479 at 509 - 510 “the term property is sufficiently comprehensive to include every species of estate, real and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value.” 1

s36 Acts Interpretation Act (Qld) 1954 “any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible, in real or personal property of any description (including money) and includes things in action.” Income Tax Assessment Act s136AA Property includes services] Commonwealth Constitution s51xxxi -In this context property does not include money Mutual Pools and Staff Pty Ltd (1994) 179 CLR155 at 195-198 but see Personal Property Securities Act s 10 – includes money

P R O P E RT Y

A S A L E G A L R E L AT I O N SH I P

Welling - 3 parties in a relationship: a. The State b. the person the State has concluded is the holder of a specified form of property c. any other person whom the State has concluded does not hold the specified form of property Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

Property separate from a thing itself Moore v Regents of the University of California 249 Cal Rptr 494 (1988) “Being broad, the concept of property is also abstract: rather than referring directly to a material object such as a parcel of land or the tractor that cultivates it, the concept of property is often said to refer to a bundle of rights that may be exercised with respect to that object.”

Property interests 2

Ownership - highest form of property Possession

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Security interest Leasehold Interest

Note: A number of people can have property in an object at the same time Example: A owns a book - Owner Lends to B – possession C steals from B - C has possession B and C subject to A’s interest Fragmentation of proprietary interest

Private, Public Communal Property -

Private property predominates in western culture

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Even if property owned by State it is owned in same way as private owners

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Communal Property - Mabo decision

O C C U PAT I ON A L -

T H E O RY

The party who is original discoverer and occupant is entitled to dispose of this property

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Has echoes in land law with adverse possession and in relation to the best right to possession of chattels

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Today few things acquired by being found but rely on the labour of others or by sale and purchase

LABOUR -

T H E O RY

A person is entitled to the full produce of their labour to encourage labour and productivity

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Came from middle class desire to overcome hereditary ownership of land

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But difficult to separate efforts of labour contributions and how to deal with ancillary requirements ie police who protect the peace but who do not produce things

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I DE A L I ST -

P E R SO N A L I T Y T H E O RY

A person’s ability to act as a free personality requires the ability to have dominion over property

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A person should be able to deal with his/her property freely

ECONOMIC -

TH E ORY

Private property creates the environment where maximum productivity is created under the profit motive - corn analogy

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Involves a belief in the distributive and controlling influence of the market

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Market is not a perfect vehicle and profit motive will create an oversupply; under-supply or monopolies

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May lead to exploitation of people and environment to detriment of the whole

Characteristics of Property National Provincial Bank v Ainsworth [1965] AC 1175 at 1247

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“before a right or interest can be admitted into the category of property, or a right affecting property it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.”

ASSIGNABILITY Not accepted as a test in all cases Note: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 - may indicate that lack of assignability is suggestive against a finding of property. In re Potter [1970] VR 352 – Beneficiary under a will Hamilton v Porta [1958] VR 247 – Tenant

Categories of property iinterests nterests Division between Real Property (land or realty) and Personal Property (personalty) is a hallmark of Common Law - compare 4

Civil Law (European) -

Corporeal Movable (goods)

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Corporeal Immovable (land)

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Incorporeal Movable (rights in goods)

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Incorporeal Immovable (rights in land)

REAL

P R O P E RT Y

– NUMERUS

C L AU SU S P R I N CI P LE

Brendan Edgeworth The Numerus Clausus Principle in Australian Property Law (2006) 32 Mon LR 387 -

‘Closed list rule’ – landowners are not at liberty to customise land rights – they must fit into established pigeonholes and the law permits only a small and finite number to be considered as an in-rem property right (as distinct from an in personam right) even if a novel interest is desirable and practical and has been agreed between the parties.

Reasons for principle:

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to maximize use of land by removing feudal

obligations that impeded

efficient use of land -

to simplify conveyancing

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to support the science of property law

Query if these policy issues as important in modern world where we have Torrens system of land registration.

Distinction between real and personal property Based upon 12th Century history 2 Types of actions: 1. Real actions - where the thing (‘res’) could be recovered 2. Personal actions - where the court could order the defendant to return the thing or provide value in money Only Freehold interests in land (estate in land of uncertain duration) in land could be the subject of real actions - real property

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CORPOREAL

AN D

INCORPOREA L

H E R E DI TA M E N T S

Sub-categories of Real Property 1.

Corporeal hereditaments - actual physical things over which ownership could be exercised eg trees, dirt, buildings 2. Incorporeal hereditaments - intangible, non physical rights affecting the land eg easements, profits a prendre

P E R SO N A L

P R O P E RTY

‘Chattels Personal’ 1. Choses or things in possession 2. Choses or things in action Note: s3 Sale of Goods Act 1896 - deals with transactions relating to goods defined as all chattels personal other than things in action or money. ‘Chattels Real’ 3. Chattels real – leasehold – anomaly discussed below

Chose in possession -

Tangible personal property Synonymous with goods and chattels

Fisher - 3 characteristics: 1. Tangibility 2. Capable of physical acquisition 3. Movable Eg book, pen, car, clothes

Chose in action A residual category - Colonial Bank v Whinney (1886) 11 AC 426 at 440 -

Rich J in Loxton v Moir (1914) 18 CLR 360 at 379 o

“a right enforceable by action. It may also be used to describe the right of action itself, when considered as part of the property of the person entitled to sue. A right to sue for a sum of money is a chose in action and is a proprietary right.”

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