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3 $"(#1+2'"#$"%&' Prperty refers t a right t a thing and hence necessarily, the legal relatinship between peple with respect t that thing. the right t use, enjy, the right t exclude thers frm use and the right t alienate are hallmarks f prperty within the cmmn law system (Milirnpum v Mabak) Prperty rights are theretically enfrceable against the wrld and thus, have a greater sphere f enfrceability than persnal rights. Gives rise t a greater range f remedies. Real prperty v persnal prperty: There is a distinctin between rights assciated with real prperty (land) & persnal prperty (effectively all else), just as there are differences between persnal rights enfrceable against sme (in persnam), and prprietary rights enfrceable against the whle wrld (in rem) Prperty is smething yu can get back as f right because land is immvable, permanent and indestructible, they are f high value and it is unique. The persn wh has land has it frm the heavens abve t the centre f the earth belw (Barrn f Bernstien v Skyways). The psitin f CL is that the human bdy is nt prperty, and cannt be subject t prperty interests: prperty is t crude a legal device t deal with the cnflicting legal/ethical/scial issues underpinning bdily integrity (Mre v Regents f the University f Califrnia) King v David Allen & Sns [1916] Facts: K entered int cntract w Allen & Sns (riginally P), giving them exclusive license t affi psters and advertisements t a wall nt yet cnstructed, later t becme a picture theatre. Annual rent was paid. K then entered int a 40 year lease with a secnd cmpany. K became directr f the secnd cmpany. Allen & Sns tried t exercise right t affix psters, later C gt angry. Held: Allen & Sns culd sue fr breach f cntract but culdn t sue King because there was n prprietary right with the subsequent cmpany. Mre v Regents f the University f Califrnia (1990) Facts: M sued his dctr fr cnversin f his spleen argued he had a prprietary interest in his spleen. When his spleen was extracted, Dr recgnized that cells had unique features making them cmmercially and scientifically valuable. Claimed prprietary rights were infringed as he wasn t tld r cnsented. Held: N prprietary interest, therefre culdn t sue fr cnversin althugh may have had anther remedy in anther area. $

4 4#5%"61$'#7'768%)"$(' The Dctrine f Fixtures states that a chattel/chse in pssessin (tangible gd) attached t land in such a way as t cease as a chattel in law becmes instead part f the real prperty This is a prfund transfrmatin: e.g. each brick when building a huse starts as persnal prperty, but n lnger enjy separate existence frm the land nce the huse is built and is a questin f law (Reynlds v Ashby & Sn) Fixtures are vital t determine wh wns it (since the chattel s riginal wner lses it t the land s wner the mment it becme a part f the land as a fixture) Vendr and Purchaser if items are fixtures when land is sld, then thse things autmatically pass t the purchaser withut the need t specifically list items in real estate. Vendr has t remve the bjects befre pssessin f prperty is give t P and if they retain their nature as gds (Callumberry v Callumberry) Mrtgagr/Mrtgagee: the mrtgagee has rights ver the mrtgagr s land AND its fixtures in case f default Landlrd/Tenant: tenants may attach things t the leased prperty, but they run the risk f lsing wnership (under cmmn law) [Is [ the bject ] a chattel r a fixture?] STEPS 1. Is the bject in the cntract? Lk t the facts is there any mentin? If nt, g t step 2:- 2. Start with presumptin: If the thing is attached t the real estate " presume fixture If the thing is resting n its wn weight " presume chattel Cmment: this step merely allcates the burden f prf 3. Intentin test: bject and purpse Belgrave Nminees Objective test Lk at: nature and degree f attachment, ease f remval f thing, cmmn understandings, rle f subjective intentin (relevant, nt definitive), wh is attacher and relatinship f attacher with prperty: Barlin Sctt; Leigh v Taylr 4. If chattel, wner f chattel may have causes f actin in trespass, detinue r cnversin %

5 INTENTION Hlland v Hdgsn (1872) LR 7 CP Whether a chattel annexed t the land is a fixture r nt depends n the circumstances # It is a questin which depends upn t circumstances which indicate intentin: a) the degree f annexatin b) the bject f annexatin # In particular, the rule the curt prpsed was: Articles that are nt therwise attached t the land by their wn weight shw they are nt intended t be part f the land The nus f prving they are a part f the land lay with thse wh assert they cease t be chattels An article which is affixed t the land even slightly is t be cnsidered a part f the land, unless the circumstances shw that it was intended all alng t cntinue as a chattel If wishing t prve that it is a fixture althugh it is sitting n its wn weight, the nus is upn the landwner; if wishing t prve that it is still a chattel despite being lcked dwn, the nus is upn the chattel s wner Belgrave Nminees v Barlin Sctt [1984] Facts: P entered int agreement with Gyde t carry ut substantial renvatins. P subcntracted with D fr supply and installatin f air-cnditining plants t be installed n rves. D went abut wrk and fitted t the rf f the buildings tw air cnditining plant, imprtantly, each unit was rested n it s wn weight and nt blted blting them dwn wuld have resulted in vibratins and eccessive nise. Cnnected t water and electrical system. Gyde went bankrupt and subcntractrs remved air-cnditining plants because they were nt paid. P instituted prceedings saying that air-cnditining plants were fixtures and were part f the real estate thus culd nt be remved Held: Air-cnditining units were fixtures and therefre D culd nt remve them Whether fixture r chattel will depend n the individual circumstances f each case THE TEST: 1) the intentin evidenced by the degree f annexatin; and 2)the purpse f annexatin legal effect f presumptin is t allcate burden f prf. &

6 (1) Factrs t cnsider in intentin test: (OBJECTIVE TEST) extent f physical attachment; ease f remval nature f the chattel and its relatinship t realty is it temprary in nature r permanent cmmn understandings- what yu expect there t be when yu buy (especially in relatin t residential real estate) whether the attachment is cntemplated permanent, indefinite, substantial r merely temprary the relatin and situatin f the party making the annexatin in relatin t the wner r persn in pssessin the purpse fr which the chattel was fixed i.e. why it was attached (subjective intentin) (2) Applicatin f factrs the very nature f the air-cnditining plants were intended t be permanent the defendant, wh carried n the business f suppliers and fitters f such plant, supplied psitined and cnnected up the air-cnditining plants as subcntractr the plaintiffs are the registered prprietrs f the prperty the degree f annexatin was slight They were nt blted in but were attached elsewhere Were als attached t electricity and water but this was easy t remve Thus pints twards chattel plants were cnsidered an essential part f the building necessary fr its use as an ffice building # Therefre mst factrs pinted in terms f fixture Leigh v Taylr [1902] (Illustrates bjective intentin test and hw it can verrule presumptin) Facts: Valuable tapestries hung in drawing rm f huse by life tenant f that huse. In rder t fasten valuable tapestries strips f wd were nailed t the wall, canvas stretched ver wd and nailed in, and tapestry stretched ver canvas and nailed in, with frames fastened t structure. Thus frm this, the presumptin was that the tapestries were fixtures Held: Curt lked at the persn ding the fixing and their relatinship t the real estate (factr frm Belgrave). Rebutted presumptin n basis f bjective intentin test Factrs Relatinship f attacher t real estate Tapestries nt put up by wner f fee simple but by life tenant Objective bystander wuld nt think that wner f tapestries intended t transfer wnership '

7 Nature f prperty Ornamental and valuable Cncluded that althugh the tapestries were affixed t the wall this was the nly way they culd be enjyed as rnamental tapestries The tapestries culd be remved frm the wall withut damaging the wall in any material way. They bserved that the life tenant was nt likely t annex the tapestries fr the benefit f the persn succeeding The mde f annexatin is nly ne f the circumstance and nt always the mst imprtant SUBJECTIVE INTENTION Relevant factr t cnsider in cnsidering bject and purpse test but nt determinative What if there was clear evidence that the parties intended the thing t remain a chattel althugh it is affixed t real estate Retentin f title clause: Even where persn has wnership, title desn t pass t the purchaser until the full purchase price is paid at the end f the cntract perid. Fr example: yu might pssess the gds but there might be such a clause in a cntract which legally means yu aren t the wner. Hbsn v Grringe [1897] Facts: King agreed t buy gas engine frm H under a credit cntract. This cntract included a retentin f title clause: prperty in engine remained with H until King had paid full purchase price. King attached engine t real estate (a saw mill) which was blted int cncrete bed therefre permanently fixed. King mrtgaged real estate t Grringe including saw mill. King defaulted and therefre Grringe had right t sell prperty including all fixtures Issue: wh had right t engine? If engine was a fixture, it wuld nt be the prperty f K. If engine was a chattel, then the mrtgagee cannt sell it. Held: Came t clear cnclusin that applicatin f bth tests wuld result in engine being a fixture and the terms f agreement (i.e. credit cntract) between King and H culd nt alter that utcme. The cntract was a private agreement between King and H it culd nt bind G. The bjective intentin test fund it was a fixture despite subjective intentin in higher purpse cntract Subjective intentin nly a factr Althugh retentin f title caluses are an imprtant cnsideratin, they must be weighed up against the ther factrs when interpreting intentin. (

8 Elitestne v Mrris [1997] Facts: The huse was a bungalw and thus, was nt really attached t the real estate, simply resting n it s wn weight. Using the presumptin, ne wuld assume that the huse was a chattel Held: Despite the subjective intentin, Curt held bungalws were fixtures n the basis f the bjective intentin test " subjective intentin had a very minr rle t play. the intentin f the parties is nly relevant t the extent that it can be derived frm the degree and bject f the annexatin Cannt lk t dcuments as t what cnstitutes subjective intentin, but rather lk t surrunding circumstances Permanent Trustee Australia Ltd v Esanda Crpratin Ltd (1991) Rlfe J said the ultimate questin was whether the intentin f the persn placing the thing n the land, viewed bjectively, was that it shuld becme a fixture The intentin was t be derived frm all the relevant facts, including any evidence f actual intentin Atturney-General (Cth) v RT C Pty Ltd (N 2) Facts: Tw printing presses, apprximately 45 tnnes each, were attached by nuts and blts t a cncrete fundatin in the basement f a building Held: Fullagar J held that the tw printing presses were nt fixtures. The main reasn fr the annexatin was fr the purpse f hlding the presses steady fr mre efficient use. Reid v Smith (1905) 3 CLR 656 Facts: Lessee erected a dwelling huse which was nt affixed t the land, but simply rested by its wn weigh upn brick piers. This was best practice in the area s as t avid destructin by white ants. Upn terminatin f the lease, the landlrd sugh t restrain the lessee frm remving the dwelling huse n the grund that it had becme a fixture Held: the huse culd nt be remved. Althugh the building may have been erected as a temprary structure, with the intentin f ultimately remving it, this was nt the intentin f the parties Circumstances shwed that the building intended t be part f the freehld The curt said this was a building lease (ne which bliged t the lessee t erect certain dwellings, althugh nt the dwelling in questin), suggesting that the intentin was that any dwelling huse put n the land shuld be cnsidered annexed t the freehld But Griffith CJ did add that a dwelling huse, if unattached t the land was nt necessarily a fixture )

9 En Metals NL v Cmmissiner f State Taxatin (WA) (1991) Facts: Mining plant and equipment which, withut being mved frm the mine where it was installed, was sld t the appellant Questin: shuld the agreement fr sale f plant and equipment be charged with stamp duty at the rate applicable t persnalty r realty Held: Decided that sme f the equipment remained a chattel. Ipp J tk fllwing factrs int accunt: the limited life f the mine the transprtable character f the equipment cncerned the cmmn practice t transfer equipment f that kind ecnmic incentive t remve it the relevantly slight degree f attachment t the grund the facility with which the detachment culd ccur *

10 4#5%"61$'#7'"$2+%696%&'#7'%6%2$' General principle: persn in pssessin f land r gds, even as a wrngder (Cstell), is entitled t take actin against anyne interfering with the pssessin unless the persn interfering is able t demnstrate a superir right t pssessin: Jeffries v GWRC In prperty disputes, the issue fr Curts is nt wh has true wnership but rather wh has the Best Title (r better rights) t the prperty in questin T have pssessin, it is necessary t have (1) Physical Cntrl: Yung v Hichens; and (2) an Intentin t Pssess/Physically Cntrl (e.g. lending, where the brrwer intends t cntrl) Prperty rights are relative, nt abslute (Jeffries v The Great Western Railway Cmpany). prperty rights are determined accrding t the relative merits f the disputing claimants befre the curt and nly the relative merits f the disputing claimants befre the curt prperty rights are relative it is abut wh has the better right between the parties, nt abut wh has abslute wnership. Hw d Curts judge this? Prir pssessin is always a better right. Jeffries v Great Western Railway C (1856) Facts: Owen, wner f trucks, transferred trucks t Jeffries althugh Jeffries didn t immediately take pssessin f trucks. Owen then prceeded t sell trucks a secnd time t GWRC. Neither parties tk pssessin. Curt f bankruptcy then made an rder against Owen and therefre Owen s gds had t be sld fr creditrs benefit. The recent transfers t Jeffries and GWRC were held t be vid ( clawed back ). Jeffries then tk pssessin f trucks at the time f ding s he had n idea abut rder f bankruptcy. GWRC then went t Jeffries place f strage and tk the trucks ut f Jeffries pssessin. Jeffries sued GWRC seeking damages fr trucks Issue: Culd GWRC defend claim by arguing that neither Jeffries r itself had rights t the truck but rather the best rights were vested in the receiver (3 rd party) i.e. jus tertii Held: GWRC culd nt rely n jus tertii defence This is because the curt was nt cncerned with wh had the best rights (i.e. abslute title) Curt was cncerned with relativity f title (better rights) Dctrine f relativity f title: wh ut f the disputing parties has the right t better right t the prperty On this basis, Jeffries had a better right than GWRC The secnd sale t GWRC was null and vid i.e. never had title at all (nam dat cannt sell what yu dn t wn) Lk t prir pssessin t decide wh has better title Since Jeffries had prir pssessin, they were entitled t damages In sme circumstances yu may be able t rely n a third party (but nt specifically invking jus tertii defence) "+

11 Just because yu are a bna fide purchaser fr value is nt a defence if yu end up buying prperty frm smebdy wh isn t actually entitled t sell it t yu. Henry Berry v Rushtn [1937] Facts: In running a stre, the Strekeeper, S, gave a bill f sale t R. Bill f sale was issued fr a lan she received frm R it was a mrtgage ver gds (but als included future gds). S entered int higher purchase cntract with Henry Berry fr scales. Cntract said prperty wuld nt pass until final payment made (s scales wuld remain w HB until full purchase price was paid). S defaulted n lan and hire purchase cntract. R seized gds including scales in exercise f rights under mrtgage HB sued fr damages. R in defence argued that HB had n right t sue. At the time f sales S had right t pssessin and actual pssessin and HB had neither ie. did nt satisfy causes f actin in cnversin r detinue Curt: Agreed with Rushtn that HB had n right t sue as HB didn t have immediate right t pssessin Under credit legislatin, purchaser was nt allwed t repssess gds until they have given ntice f default and pprtunity t remedy default There was n immediate right t pssessin unless HB did bth these things Cstell v Chief Cnstable f Derbyshire A wrngder wh has actual pssessin can have better rights t prperty than any ther persn Facts: C driving stlen car and was seized by plice. Hwever C was never charged with anything. Legislatin allwed plice t retain car nly fr certain prupses (investigatin and trying t find true wner). Plice culd nt lcate true wner thus statutry right t pssessin f car came t an end. C sued plice fr wrngful detentin f car and wn Held: It did nt matter that Mr. C knew the car was stlen:- Mral disapprval is nt sufficient t displace general principle f relativity f title...pssessin means the same thing and is entitled t the same legal prtectin whether r nt it has been btained lawfully r by theft r by ther unlawful means Hence, even a finder r a thief acquires a title t the thing fund r stlen, albeit ne which is defeasible by the persn wh lst it r the victim f the theft (as well as by anybdy else with a superir title) ""