9-9.30 Reading 12 Minutes (1 Page, Words 288)

9-9.30 Reading 12 minutes (1 page, words 288)

9.30-10.20 Q1 36 minutes (3 pages, words 864)

10.20-11.10 Q2 50 minutes (4.2 pages, 1200 words)

11.10-12.00 Q3

Property Law A - LWZ013

EXAM NOTES

1.PROBLEM SOLVING

2.Standard Exam Answers

AWhat is property – essay notes [total words – 2,220]

(i)What is property? [764 words]

(ii)What is a proprietary interest? [641 words]

(iii)What is the purpose of property? [notes only - 391 words]

(iv)Are courts reluctant to recognise new forms of property? (see also notes on what is not a proprietary interest) [212 words]

(v)Attributes of property [468]

(vi)Cujus est solum ejus est usque ad coelum, et ad inferos

BMabo (No 2) and extinguishment principles essay notes

(vii)Significance of the Mabo decision to property lawyers - summary

(viii)Timeline

(ix)Doctrine of tenure [216]

(x)Crown acquired a radical title not a full beneficial title [136]

(xi)Doctrine of tenure modified to accommodate the existence of native title [252]

(xii)Skeleton of principle

(xiii)Is it accurate to describe the doctrine of tenure as “an essential principle of our land law”? [425]

(xiv)Recognition of native title

(xv)Native title as an interest in land [28]

(xvi)What is native title [781]

(xvii)Other aspects of native title

(xviii)Native title a proprietary interest? [256]

(xix)Rejection of terra nullius [159]

(xx)Modification of the reception of laws upon settlement [153]

(xxi)Impact on the doctrine of estates [358]

(xxii)Possession and common law Aboriginal title [252]

(xxiii)Competing Claims of Possession: Relativity of Title [150]

(xxiv)Extinguishment principles

(xxv)Extinguishment of native title [55]

(xxvi)Mabo v Qld (No 1) [105]

(xxvii)Mabo v Queensland (No. 2) (1991-2) 175 CLR 1 at 69-70 [648]

(xxviii)Wik Peoples v Queensland (1996) 187 CLR 1 [194]

(xxix)Fejo v Northern Territory (1998) 195 CLR 96 [339]

(xxx)Western Australia v Ward (2002) 213 CLR 1 [250]

(xxxi)Interests in land

CLicences [313]

DDoctrine of fixtures [340]

EDoctrine of tenure [86]

FDoctrine of estates

(xxxii)Introduction

(xxxiii)Grants of future interests [107]

(xxxiv)Words of limitation

(xxxv)Life estate [55]

(xxxvi)Life estate pur autre vie [77]

(xxxvii)Reversion [53]

(xxxviii)Remainder [64]

(xxxix)Qualified fee simple estates

(xl)Determinable fee [79]

(xli)Conditional fee [96]

(xlii)Void contingencies and limitations

(xliii)Doctrine of waste (common law) [260]

(xliv)Chattels – found [427]

(xlv)Possession and adverse possession (possessory titles) [878]

(xlvi)Encroachment of buildings

(xlvii)Torrens register [170]

(xlviii)Bailment [509]

(xlix)Trespass [196]

(l)Detinue [111]

(li)Conversion [139]

(lii)Immediate right to possession (conversion & detinue) [108]

GConstructive trust

(liii)Comparison – Constructive & Resulting Trusts

HResulting trust

ICompeting legal and equitable interests [612]

(liv)Walsh v Lonsdale and the Doctrine of part performance [134]

(lv)Caveatable interests

(lvi)Compensation – improper caveat

JDoctrine of equitable estoppel

KDoctrine of part performance [185]

LDistinction between in personam and in rem actions/rights [134]

3.What is property [topic 1]

MTheoretical perspectives - What is Property?

(lvii)Felix Cohen Dialogue on private property

(lviii)Macpherson "Liberal-Democracy and Property" in CB Macpherson (ed) Property - Mainstream and Critical Positions (1978)

(lix)Walter Neale, “Property in Land as Cultural Imperialism: Or, Why Ethnocentric Ideas Won’t Work in India and Africa”(1985) 19 Journal of Economic Issues 951

(lx)Davies, M. “Feminist Appropriations” (1994) 3 Social and Legal Studies 365

(lxi)B. Edgeworth “Post-Property?: A Post Modern Conception of Private Property” (1988) 11 UNSWLJ 87

(lxii)Walton Hamilton – Encyclopedia of the social sciences

(lxiii)Bentham

(lxiv)Liberal-democratic theory

(lxv)Hegel

NProperty v ownership

OProperty v private property

(lxvi)Should a certain thing be the subject of property rights and, if so, how should those rights be distributed?

PCase law – What is Property?

(lxvii)Blackstone

(lxviii)Milirrpum v Nabalco (1971) 17 FLR 141, 268-73

QNT context

4.Personal property [topic 2]

RPossession

SOwnership, title & possession

(lxix)Possession and Control – consequent presumptions

TChattels - Acquisition of possession by finding (3 types of cases)

ULand – possession and adverse possession

VSeisin

WAdverse possession

XDoctrine of relativity of titles

YTrespass, Conversion, Detinue - Goods

(lxx)Trespass

(lxxi)Conversion

(lxxii)Detinue

ZDistinction between realty and personalty

5.Fixtures [topic 3]

AARemovable fixtures

(lxxiii)Tenant’s fixtures

(lxxiv)Fixtures under hire-purchase or Credit contracts

BBEncroachment - Chattels annexed without permission & knowledge

(lxxv)What is the meaning of 'encroachment' under the Encroachment of Buildings Act 1982 (NT)?

CCAgricultural fixtures

6.Property in land: Possession [topic 4]

7.Property in Land: the Doctrine of Tenure and Native Title [topic 5]

DDCentrality of the Doctrine of tenure

(lxxvi)Doctrine of tenure

EEAcquisition of new territory

(lxxvii)Terra nullius

FFNative Title as an Exception to the Doctrine of tenure

(lxxviii)Timeline

(lxxix)Mabo v Queensland (No 2) (1992) 175 CLR 1

GGExtinguishment of native title

(lxxx)Mabo v Queensland (No. 2) (1991-2) 175 CLR 1 at 69-70

(lxxxi)Wik Peoples v Queensland

(lxxxii)WA v Ward (2002) 213 CLR 1

HHNative Title Act

(lxxxiii)Connection - ‘connection with the land’

Definition of a “Future Act”

What is not a Future Act

i.Future Act procedures (Part 2 Division 3)

ii.Right to Negotiate procedures (Subdivision P)

IITenure and radical title

JJThe contemporary significance of radical title

8.Property in land: the doctrine of estates [topic 6]

KKFreehold estates

(lxxxiv)Creation of freehold estates by words of limitation (old system land only)

LLLegal future interests

(lxxxv)Remainders and reversions

(lxxxvi)Conditional fee

(lxxxvii)Determinable fee

MMLeasehold estates

NNThe Doctrine of Waste

9.Title to land: creation of legal interests in general law and torrens system land [topic 7]

OOAcquisition through taking possession

PPConsensual transactions with proprietary interests

QQRequirement of writing

(lxxxviii)Requirements

(lxxxix)Effect of non-compliance

(xc)Purchaser of land issues

10.Non-express trusts

RRResulting Trusts

SSAutomatic Resulting Trusts

TTPresumed Resulting Trusts

UUThe presumption of advancement

11.Constructive Trusts

VVRemedial Constructive Trusts

WWInstitutional Constructive Trusts

(xci)Statutory Trusts

(xcii)Family property disputes: De Facto Property Legislation

XXTrusts requirements generally

YYDoctrine of part performance

(xciii)Effect of non-compliance

(xciv)PART PERFORMANCE DEFINITION

(xcv)REQUIREMENTS OF THE DOCTRINE OF PART PERFORMANCE

ZZGifts

AAATorrens registers

BBBInterests in land – Land Titles Act

(xcvi)Leasehold interests

(xcvii)Easements

(xcviii)Profit a prendre

(xcix)Restrictive covenants

(c)Mortgage

(ci)Distinction between a licence and a proprietary interest

(cii)Native title

12.Title to land: creation of unregistered, inchoate and informal interests (equitable and lesser interests) [topic 8]

(ciii)Equitable Interests in the Land Title Registration System

CCCEquitable Remedies

(civ)Specifically enforceable agreements for the creation of other interests in land

(cv)Equitable estoppel

(cvi)Legal Mortgage

(cvii)Equitable mortgage

(cviii)Mere Equities

(cix)Purchaser of land

13.Priority between conflicting interests – general law land [topic 9]

DDDGeneral priority rules

(cx)Torrens system land

(cxi)Use of caveats

(cxii)Doctrine of tacking

(cxiii)Doctrine of bona fide purchaser for value without notice

EEE1) Prior legal interest v subsequent legal interest

FFF2) Prior legal interest v subsequent equitable interest

GGG3) Prior equitable interest v subsequent legal interest

HHH4) Competing equities - equitable interest v equitable interest

(cxiv)Doctrine of Tabula in naufragio

III5) Equities and Equitable Interests

14.Equitable assignments

15.Property Law - Traditional Classification and Terminology

16.Latin terms - Glossary

17.Legal and equitable interests

(cxv)Legal proprietary interests

18.Cases

JJJDoctrine of notice & competing interests

KKKFinding chattels & personal property generally

LLLPossession and adverse possession

MMMDoctrine of Estates & determinable and conditional estates

NNNResulting / Constructive trust / Gifts cases

OOOLicence cases

1.PROBLEM SOLVING

1. WHAT TYPE OF PROPERTY IS IT?

Is it property? Victoria Park Racing v Taylor; Moore v Regents California
Licence: King v David Allen & Sons
New form of statutory proprietary interest (eg. intellectual property interests)

Realty

corporeal or [freehold estates: fee simple, fee tail, life estate]
incorporeal hereditaments [eg easements, profits a prendre] (no right to possession, only use)

Is it land held under the general law or Torrens title?

General law – inter vivosconveyance by deed: LTA s 179
Torrens title – executed transfer

Torrens

Registered instrument? Takes effect as a deed

Unregistered instrument? Can only take effect as an equitable interest.

Personalty

Chattel real (leasehold)
Chattel personal

a)chose in possession (tangible or corporeal property) or

b)chose in action (intangible or incorporeal property)

2. WHAT ARE ITS ATTACHING RIGHTS?

Use, manage, income, capital, alienation, exclusion

Rights in rem – trespass, detinue, conversion

3. IS THE DOCTRINE OF FIXTURES INVOLVED?Holland v Hodgson;Hobson v Gorringe

Tenants fixtures / Agricultural fixtures
Encroachment and relief where buildings erected under mistake

4. DOCTRINE OF ESTATES

A. Is there a grant of a future interest in land?

Reversion
Remainder (vested [legal interest], contingent [equitable after 1 Dec 2000])
Legal executory interest
Law of Property Act s 30; Land Titles Act

B. Are the correct words of limitation used?

LPA s 29

C. Has a life interest been granted?

Doctrine of waste, LPA ss24, 25

5. CONDITIONAL OR DETERMINABLE FEE?

Conditional [on condition that, but if, provided that, If ever I do that [leave], I will take my name off the next day’: Zapletal v Wright]

Vested before rule against perpetuities?

Determinable [whilst, during, as long as, until]
Is the contingency or limitation void? (public policy, illegality, uncertainty, unduly restricts the right to marry, substantially restricts the grantee’s rights of alienation)

6. IT IS A PROPRIETARY INTEREST?National Provincial Bank v Ainsworth; Mirrilrpum v Nabalco

Legal or equitable interest?

Is it registered?

7. REQUIREMENT FOR WRITING?Law of Property Act

8. ARE THERE COMPETING LEGAL OR EQUITABLE INTERESTS?

Resulting trust rebutted by (i) presumption of advancement: Wirth v Wirth (ii) evidence of a gift (iii) express intention: Cummins v Cummins

9. POSSESSION & ADVERSE POSSESSION

Chattels

Where was the chattel found? [public area, private property]
Is the person in possession of the land? (South Straffordshire Water Co v Sharman;
Is the person a trespasser? (Elwes v Brigg Gas; Hibbert v McKiernan)
Found by an employee or independent contractor? (Attorney-General v Goddard; City of London Corporation v Appleyard)
Did they take possession and control (Grafstein v Holme; Armory v Delamirie; Parker v British Airways Board; Hannan v Peel)
Can the true owner be found?

Land

Requirements: J A Pye (Oxford) Ltd v Graham

Factual possession (Powell v McFarlane; Petkov v Lucerne Nominees P/L; Chhoker v Chhoker)
Intention to possess (Ocean Estates Ltd v Pinder; Moran case; Petkov v Lucerne Nominees P/L (1992) 7 WAR 163)
Acquiesince? (McPhail v Persons Unknown)

Jus tertii

Statute of limitations

Encroachment of buildings legislation

Land Titles Act s 198

10. COMMON LAW NATIVE TITLE

Mabo v Queensland (No 2) (1992) 175 CLR 1

Extinguishment principles

Mabo v Queensland (No 2) (1992) 175 CLR 1
Wik Peoples v Queensland (1998) 187 CLR 1
Fejo v Northern Territory (1998) 156 ALR 721
Western Australia v Ward (2002) 213 CLR 1

Statutory native title

Native Title Act

statutory native title can be revived

Past Acts regime

Future Acts regime

11. CAUSES OF ACTION

Supreme Court Act s 68 – rules of equity shall prevail

Action in rem

freehold estates, leasehold estates

Specific performance

In a sale of land, the incidents of trusteeship exist only if and so far as a Court of Equity would in all the circumstances of the case grant specific performance of the contract: Howard v Miller; Central Trust and Safe Deposit Company v Snider

It is sufficient to show that an order for specific performance would have been available: Bunny Industries P/L v FSW Enterprses P/L
Specific performance is the foundation of an equitable interest: Ridout v Fowler
Applies to any legal proprietary interest in land: see eg. Walsh v Lonsdale

A Purchaser’s conduct may disentitle them toa right to specific performance

conduct includes; breach of a term (Swain v Ayres)
the legal remedy is adequate (Adderley v Dixon)
The legal remedy is inadquate in a sale of land: Adderley v Dixon
A sale of taxi plate & cab was ameniable to specific performance: Dougan v Ley

Action in personam

all other interests

Tresspass

Land
Goods

Detinue

Conversion

Realty & choses in posession

self help (take possession) or

court to make an order

Choses in action

court to make an order

Doctrine of waste

Damages to the reversion (land)
Damages for conversion for objects severed from the land
Action for money had and received
Injunction
Compel repair

Breach of trust (Bunny Industries P/L v FSW Enterprises P/L; Lake v Bayliss)

2.Standard Exam Answers

AWhat is property – essay notes [total words – 2,220]

(i)What is property? [764 words]

Property and law are intertwined. Bentham stated that ‘[b]efore laws were made there was no property; take away laws and property ceases.’ This idea was supported by Felix Cohen, Walton Hamilton, and Sheena Wheeldon. Wheeldon considered that property rights are ‘created by the law and the law can and does override, limit and refuse to recognize them.’ (Reflections on the concept of property).

At different times in history, social attitudes to property have clearly influenced the law. The practice of slavery created ownership in humans. Feudal obligationsare apt examples of how the law supported the central wealth creating role of land.

Hohfeld suggested that property, howsoever owned, meant that one stood in a certain relationship to others, a relationship which could be broken down into powers, privileges, duties, rights and immunities (Edgeworth, Post-property?). Hohfeld’s ‘scientific’ analysis of property law pointed out that property entitlements could be analysised in a new vocabulary as a series of claims and obligations among persons, rather than among persons and their relations to land or ecology. The new concept of property was defined as a set of eight legal relations among persons, rather than the Blackstonian concept of absolute dominion of things and imaginary property (Seeing property)

In Western societies, the doctrine of settlement has emerged as the basis for establishing a legal theoretical basis to recognise property through Crown sovereigntynotwithstanding the demise of feudalism (Mabo No 2; Stuckey, Feudalism and Australian Land Law). It is through this mechanism that the State can give effect to private citizen activity in utilising land and to bring about ‘proper order or public good’ and to ‘promote preconceived notions of social and political norms’and further that ‘the core purpose of property is not to satisfy individual preferences or to increase wealth but to fulfill some prior normative vision of how society and the polity that government it should be structured’

(Seeing Property)

Whilst property has been a strong organising idea, Walter Neale notes that the history of the peoples in India and Africa are vastly different to Western society (Property in Land as Cultural Imperialism).

Occupation and possession are fundamental elements for creating legal relations and establishing what is property. In Mabo (No 2) however, the High Court did not consider that the exclusive possession of the Meriam people amounted to a proprietary interest.

In the paper ‘Seeing Property’, it was opined that ‘[p]roperty came to be viewed as a device to create social and economic relationship and a transformation occurred from property as rights to “things” towards the idea of imaginary property.’. Bentham contended that ‘[t]he ultimate end to which all social arrangements should be directed is the maximisation of the aggregate utility of the members of society.’ Clearly the compulsory reallocation of land to indigenous Zimbabweans away from white farmers which was central to the Zimbabwean economic collapse is an example of how utility can be destroyed.

Felix Cohen’sconcluded analysis was that ‘[p]roperty is basically a set of relations among men, which may or may not involve external objects.’(Dialogue on private Property). Walter Neale similarly considered that property in land was ‘about a great many relationships of people to the surface of the earth and to other people and about the ways in which people exploit the earth’. (Property in Land as Cultural Imperialism). Simple stated ‘[t]here is no property so long as there is only one person.’ (Cohen, ibid) and further as stated by Bentham, property ‘is not material, it is metaphycial, it is a mere conception of the mind.’.

Kevin Gray describes property as a mere illusion (Property in thin air). Gray points to the recognition of a private owner’s property right over airspace which might be as high as 200 metres (see People v Cook) and its suggested ability to be conveyed as a bundle of rights (see Macht v Department of assessments of BaltimoreCity). The situation does not however create an actionable trespass for looking through the airspace(Entick v Carrinton; Victoria Park Racing v Taylor)nor is it an invasion of privacy or a public nuisance. The majority in Victoria Park Racing v Taylor clearly were promoting the idea that physical, legal and moral bases may give rise to the non-excludability of a resource from the commons.

Cohen also considered that property was unrelated to wealth. Wealth is a function of plenty, however a limitless supply of air and sunshine does not suggest property. Moreover, it is the scarcity of a thing which creates property. (Cohen, ibid)

The question invariably leads to an assessment of what is a proprietary interest.

(ii)What is a proprietary interest? [641 words]

The numerus clausus[1]principle permits a small and finite number of ‘bundles of rights’ to exist at common law which may be considered to be property.

For public policy reasons concerning legal certainty, complexity, efficiency, ease and expense in conveyancing, it is necessary to limit the number of rightsin rem. The numerus claususprinciple can thus be seen to strike a balance between the costs of frustrating parties' objectives on the one hand and the costs of complicating third-party information-gathering on the other. (Thomas Merrill and Henry Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, Yale Law Journal (2000) 110)

The historical context of feudalism is important. There are three fundamental facets of feudalism: the ‘parcellization of sovereignty’; an agrarian mode of production; and the position of the monarch as suzerain of the great lords, but not as king of the whole people.” (Stuckey, Feudalism and AustralianLand Law). At this time, the common law recognised that people holding interests in estates including leasehold interests had proprietary interests. The recognition of these rights in rem can be explained on the basis that wealth was predominantly created in an agrarian society through productive uses of land an ex hypothesi, the State would extend protection to promote wealth creation which promoted the growth in the State’s taxation revenues.

There have been a number of cases where attempts have been made to define property. A common theme is the idea that property is a bundle of rights (see Yanner v Eaton; Bollinger v Costa Brava Wines).