Summary Australian Property Law: Cases Materials and Analysis lecture Week 1-12, tutorial work Week 1-12, complete PDF

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Download Summary Australian Property Law: Cases Materials and Analysis lecture Week 1-12, tutorial work Week 1-12, complete PDF

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LAWS205 PROPERTY

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CONCEPTS OF PROPERTY E.G. of property: things (goods), land, copyright (product of artistic/skilled endeavour), shares, contractual rights (debts), software, air, water, minerals, indigenous rights to hunt, fish, hold ceremonies, reside etc.

PRIVATE PROPERTY • Property refers to a specific form of legal relationship that an individual has with an object or resource, whether that object or resource be tangible or intangible in nature. • Property is a comprehensive term which refers to the degree of control which the law recognises as exercisable by individuals over things. • Legal definition of property à land, goods, shares, the benefit of a contract, the lyrics to a song, computer software, ideas, airspace, encumbrances, rights attached to land, and indigenous cultural relationships over land. Associated property rights Rights that make up property include: the right to o use and enjoy the property (profit from it) o possess (absence of possession does not deny the right its proprietary status) o alienate (the right to alter ownership rights by selling, giving, mortgaging, leasing etc property to another) o exclude others from the property o responsibility to maintain, use and (dep. on legal system) share the property or its fruits with others. • Bundle of Rights à focuses upon the conceptual foundations of the property relationship and views this relationship as a collection of interrelated rights instead of a single definitive notion. • Henry E Smith à property exists when we ascribe that label to the cluster of entitlements or the bundle of rights that arise from a particular relationship o e.g. when cluster of entitlements incorporates rights of exclusion Property is a relationship • Normative legal perspective à property refers to the relationship that an individual has with an object rather than the object itself • Property relationship differs from other forms of relationship that may arise with respect to the object - due to the property relationship conferring upon holder rights to use and enjoy the object, which may be exercised exclusively, and this exclusivity is enforceable against the rest of the world. Yanner v Eaton (1999) 201 CLR 251 – HC affirmed that the concept of property is a key element in the Aus legal system. HC accepted that ‘property’ consists primarily in control over access to things or to resources ‘Property’ in the Fauna Conservation Act 1974 (Qld) à does not refer to a thing; it’s a description of a legal relationship with a thing. At common law wild animals were the subjects of only the most limited property rights. At common law there could be no ‘absolute property’, but only ‘qualified property’ in fire, light, air, water or animals (no person had property in wild animals) Gleeson CJ, Gaudron, Kirby and Hayne JJ concluded property is not a reference to the physical object but rather a reference to the degree of power that the property relationship confers (legally endorsed concentration of power over things and resources) Facts: Fauna Conservation Act 1974 (Qld) required a permit to take and keep wild crocodiles and imposed penalty for contravention Act provided that all fauna was property of the Crown Indigenous man took a juvenile crocodile using a traditional harpoon and was charged under the Act Magistrate dismissed the charge, on the grounds that the indigenous man’s clan had a connection to the land and had a customary right, predating the common law in QLD, to take the crocodiles. His decision was ovveruled by the Qld Court of Appeal, and went to appeal to the HC Magistrates decision was upheld On question of what the legislation meant by fauna being ‘property’ of the Crown, majority considered that it was a reference to the physical object but rather a reference to the degree of power that the property relationship confers Gleeson CJ, Gaudron, Kirby and Hayne JJ: Appellant taking the crocodiles was exercising/enjoying his native title rights and interests and preserved by the NT Act. By the Fauna Act restricting/prohibiting the taking of crocodiles, it invalidated s 109 of Constitution Fejo v Northern Territory –native title is extinguished by the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests

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DISTINCTION BETWEEN PROPIETARY AND CONTRACTUAL (OTHER) RIGHTS A property right is enforceable against the rest of the world (in rem) The enforceability is supported by a range of property remedies which entitled the holder to preclude anyone other than those with a better title from interfering with that right

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A contractual right is only enforceable against the other parties to contract (in personam) In personam rights are only enforceable against other parties privy to an enforceable contract and are therefore supported by a range of personal remedies Contract right is itself a resource that is capable of forming the subject matter of a property relationship Thus, whilst enforcement of a contractual right is in personam, ownership of a contractual right is in rem. Includes: shares, life insurance, policies and bank accounts

In law of negligence, the relationship protected is that of ‘neighbourhood’ – the legal duty of care owed to other people as human beings In law of contract, the relationship protected is that created by agreement of the parties themselves – it is quintessentially ‘private’, because it only affects legal rights of the parties to it.

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LEASES OR LICENCE? • Some circumstances – a right that begins as a contractual right may be converted to a property interest • E.g. a contract which is entered into for the benefit of 3P may be construed as a constructive trust where it would be unfair to deny an intention to confer a beneficial interest upon a 3P • A contract that confers possession may be interpreted as creating a lease because the possession which is conferred is exclusive in nature. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 – HC held that a contractual licence to enter a racecourse was not irrevocable and could not be construed as a property interest. If the contract was irrevocable, it would be similar to a property right because of the availability in remedies of specific performance would prevent the licensee from being removed from the premises. FACTS: o P (Cowell) sued D for damages for assault after being removed from a racecourse that he had paid to enter. He became a nuisance and was asked to leave the course. He refused. o D argued that P was trespassing on D’s land and D had used more force than was necessary to remove him o P said D was conducting a race meeting and he had paid 4 shillings to enter and view the races and that the contractual licence was not revocable and so D was in breach by ejecting him from the land o He sued the racecourse for damages for assault ISSUE: o If he had a right to be there (e.g. an ‘irrevocable licence’ as he claimed), the removal would have been assault o If the licence had been validly terminated, there was no assault as the force was no more than was necessary HELD: o P had a mere contractual right (licence) to enter the racecourse. o It was not irrevocable, and could be withdrawn at any time. It is not a proprietary right, because it is created by a contract and confers no proprietary right. o The important point to note here is that permission from the owner of a property to enter land for a particular purpose is not proprietary, unless it is coupled with something essentially proprietary in nature, such as a lease (exclusive possession) or an easement (a right to use the grantor’s land for a purpose benefitting land owned by the grantee) o The right to enter premises to view a spectacle is not such a proprietary right, and therefore can be revoked even if granted by contract o The distinction between contract and property is thus clear: Cowell was at most entitled to damages for breach of contract o If he had property interest, he would have been entitled to an injunction and to damages for trespass to his person and possibly substantial consequential damages Referred to Wood v Leadbitter (1845) 13 M&W 838l 153 ER 351 – held - where a man creates a proprietary right in another and gives that other a licence to go upon land in order that he may see or enjoy that right, the grantor cannot divest the grantee of his proprietary right and revest it in the grantor or simply determine it by breaking the agreement. àThe grantee owns the property to which the licence is incident and is unaffected by any purported revocation of the licence Rejected Hurst v Picture Theatres Ltd (1915) 1 KB 1 – held that a right to see a spectacle constituted in an interest which could be granted therefore a licence to go into a theatre/racecourse to see a play/witness races was, when given for value, irrevocable à HC rejected the extent that it ignored the distinction between a proprietary and a contractual right. o Distinction had to be made between the creation of a proprietary interest in land by a contract conferring possession or enjoyment of the land, and the creation of a contractual right to use the land pursuant to how the owner of the land

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retained possession and rights in that land The opportunity to witness a performance is not an interest in property; it is not a tangible thing to be taken away from the land or out of the soil; it is more than a personal advantage from P’s presence at the place where the licence, while unrevoked, authorised P to enter and remain

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A lease is an estate in land whereas a licence, ‘properly passeth no thing nor alters or transfers property in any thing, but only makes an action lawful, without which it would have been unlawful’: Thomas v Sorrell (1693) Vaugh 330 at 351 The fact that a licence may be coupled with a contract does not mean that it becomes proprietary and this is so even where the contract contains a provision making the licence irrevocable. An owner/occupier of a public venue, not having a statutory power/some form of governmental/administrative control does not have an obligation to afford natural justice when deciding to excluse a person from that venue, even though it may be in breach of a contractual obligation in so doing: Hinkley v Star City Pty Ltd [2011] NSWSC 1289 at [135]. PRIVATE PROPERTY AS A PROTECTION OF WEALTH Classical liberalism John Locke – private property as a “natural right” and the foundation of the State as a social contract between the State and its citizens to protect their natural rights. Each human was free, equal and independent and others ought not to interfere with private property Property was a natural right, because the labour and effort of the private individual was expended in improving its value and therefore the individual had a right to use and enjoy that property, once it had value Purchasing a property with money merely represented the way in which the value acquired at the start and the additional value added by the predecessor was exchanged with the successor Criticism: The main problem with this theory is the factual basis of it: there is no evidence of any social contract between members of a society, or between members and their government. Law does not naturally occur in this way. Many traditional societies do not have strong concepts of private property, but have more communal rights to resources. Utilitarianism “The greatest good for the greatest number” The protection of private property rights encourages individual and social wellbeing. Jeremy Bentham’s theory: Social actions are justifiable according as they maximise expected utility: ie promotes individual happiness. Criticism: this minimises the social impact of private property and the need also to promote broader social and community needs. The tension requires the legal system to shape the private rights of property by reference to society’s shared values and moral commitments. Socialism - Karl Marx: private property rights protect the wealth of the capitalists, who take control of the means of production, distribution and exchange so as to appropriate to themselves the surplus value over and above the wages paid to those whose labour produced the object It is therefore an institution that should be abolished in the interests of social justice Criticism: Socialism removes the incentive individuals have to produce goods and participate robustly in economic activity. The removal of private property rights vests all control and decisions about use of resources in the State, which is subject to conflicting interests (eg. to promote industrial safety versus to profit).

Legal positivism § This theory, espoused by John Austin, Professor Hart and others, starts not from the normative question of what the law should be, having regard to moral or policy objectives, but rather from the expository question of what the law currently is. § On this theory, law simply reflects the will of the current sovereign. § Private property rights are therefore a contingent question, ascertained by simply looking at what the current statute book (or other sources of law) says. There are no “natural rights”, just current law. § Criticism: Law is not just a system of commands by law givers. It is a much more complex amalgam of facilitative regulations, and accretions over long periods of time, developed by lawmakers responding to normative questions as they arise. Policy and morality inform lawmakers.

PUBLIC INTERESTS AND PROPERTY Property is a legal construct In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [44]: The only rights or interest s in relation to lands or waters, originating otherwise than the new sovereign order, which will be recognized after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom. • Aus legal system should recognise native title rights in land, but only where those rights have their origin in pre-sovereignty law and custom

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RESOURCES PROTECTED FROM OWNERSHIP § Certain things cannot be owned privately Ø res communes – access to air, running water, beaches, the sea Ø the common law has traditionally regarded these as inviolable rights of the public to certain natural resources that make them incapable of privatisation § The policy of the common law reflects that some resources may not be “propertised” because to do so would be contrary to fundamental moral assumptions and human freedoms. (Eg. human body parts, slavery) § There are many policy debates at this margin: A right to privacy, a right to human tissue reproduced in research to develop medical diagnostic tests or other products. § The idea of res communes derives from Roman law and the idea of common heritage. Thus, for example, the resources of the high seas or outer space cannot be appropriated and the use of them belongs equally to all people. RESOURCES INCAPABLE OF OWNERSHIP- there can be no property in a spectacle or view Example of excluding others from the object of property Resource can be propertised if it is excludable. A resource is excludable only if it is feasible for a legal person to exercise regulatory control over the access of strangers to the various benefits inherent in the resource Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 Facts: Taylor owned a house beside Victoria Park He built a platform and with binoculars viewed the races and obtained information from notice boards of interest to punters. He passed this information to 2UE, who then broadcast them Evidence was given that some people preferred to listen to the information on the radio rather than attend the races Victoria Park brought an action in nuisance against Taylor, for unlawful interference with its use and enjoyment of the racecourse. Held: No property in a view or spectacle. The scope of such a right is too uncertain and its enforcement would interfere with other owners’ rights to use and enjoy their own property Victoria Park was free to erect impediments to Taylor viewing its spectacle (e.g. a fence), but in the absence of such structures, it had no property right to exclude others outside its property from looking in and profiting from what they might see. It is lawful to erect what one pleases on one’s own land: Rogers v Rajendro Dutt Comment: The corollary of this is that there is no common law right to privacy in one’s own backyard. An owner is at liberty to exclude his/her neighbours’ view by any physical means legally possible. There is no legal restriction that an owner can place upon the right of a neighbouring owner o view activities conducted on joining land. • Majority in Victoria Park refused to accept that the spectacle was property because it was not possible to exclude strangers from the spectacle. • Spectacle could not be physically excluded except at great financial cost (erecting wall etc) Moral Boundaries: • Not legally possible to own another’s life. However individuals are regarded as owning their own body parts. • Where the part is non regenerative (vital organ), a 3P cannot claim ownership of it unless the owner has donated it during their life or after death. Moore V Regents of University of California Medical research group removed a patient’s spleen, blood, cells, skin and semen during a course of treatment for leukemia without his knowledge or consent and developed a product which was extremely valuable Californian Supreme Court concluded that the patient could not claim these tissues back because societal policy arguments favouring the proper development of effective research and treatment outweighed the importance of individual property claims. ‘extension of personal property rights to interfere with proper and effective development of medical research would be socially unacceptable and unjustified Common heritage of mankind Natural resources in the high seas may not be owned or apportioned otherwise than in accordance with rules promoting the common interest of all nations

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POSSESSION, TITLE AND PERSONAL PROPERTY Note: goods on land are considered to be within the possession and control of the landowner, if affixed to or embedded in the land otherwise, goods found on land are only within the possession and control of the landowner if the landowner exercised such manifest control over the land as to indicate an intention to control the land and everything on the land.

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POSSESSION • physical concept referring to the occupation, control, or dominion over corporeal objects such as land, goods or resources. If the appropriate level of control can be established, the holder may acquire possession. • Threshold for possession is complete and absolute dominion rather than a temporary or fleeting control • Physical possession will arise where an individual has a high level of control over land or an object or resource because that control gives them the power of exclusion • Nature of character of the control, occupation or dominion that must be proven before physical possession can be established depends upon the nature of the land, object of resource in issue. • When dealing with land that includes a residential dwelling, physical possession will generally arise where it can be established that the dwelling is substantively occupied in a permanent rather than a temporary manner • when dealing with vacant land, physical possession will generally exist where acts of physical control such as fencing or gate locking can be established • Chattels or personal property are far easier to physically possess because of their inherently movable nature. o Person may take control and therefore posses a chattel by the simple act of holding it in a private capacity o E.g. a person will possess a motor vehicle where it is locke...