Topic 1 The concept of property... 6 Topic 2 Personal property: acquisition, alienation and possession... 31

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1 Property Law I Contents Topic 1 The concept of property... 6 Characteristics of Western Property Interests Private property Associated property rights Property as the Law of Things, Henry E Smith (2012) 125 Harvard Law Review Commentary... 7 Property is a relationship... 7 Yanner v Eaton (1999) 166 ALR Gleeson CG, Gaudron, Kirby and Hayne JJ... 7 Commentary... 8 Property is a Legal Construct Fragmentation of Property... 8 Distinction between Proprietary Rights and Contractual Rights Lease or licence?... 8 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR Latham CJ... 9 Evatt J (dissenting)... 9 Rationales for Private Property Non-Private Resources Boundaries of Ownership: Resources Incapable of Ownership Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR Latham CJ, agreeing with Nicholas J Resources Incapable of Ownership: Moral Boundaries Resources Incapable of Ownership: Common Heritage of Mankind What is property? Definition of Land Ownership of Land Legal and Equitable Interests in Land Torrens Titles and General Law/Old Law Acquiring Ownership of Real or Personal Property Intellectual Property Wills and Successions Leases Lecture Topic 2 Personal property: acquisition, alienation and possession The Finders Keepers Rule

2 Waverley Borough Council v Fletcher (1996) QB 334 Sir Thomas Bingham M.R., Auld and Ward L.JJ. Judgement by Auld LJ Bailment: Consensual Acquisition of Possession Possession of Goods: The Jus Tertii Defence Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437 Lightman J for the court Lecture Lecture Topic 3 personal property: title; bailment proprietary remedies & personal properties securities The Personal Property Security Act 2009 (Cth) Trespass to goods Conversion Detinue Damage to Reversionary Interest in Goods Defences to Torts of Interference with Goods Remedies Fundamental Concepts of Bailment Definitions and Descriptions Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR Carlton International plc v Crayford Freight Services Ltd (1997) 78 FCR Mason v Westside Cemeteries Ltd (1996) 29 CCLT (2d) Motor Mart Ltd v Webb [1958] NZLR Citing GW Paton, Bailment in the Common Law (1952), 4-5, further citing Pollock and Wright Possession in the Common Law, 163: A Schematic Overview of Bailment Sub-Bailment The Pioneer Container [1994] 2 AC Westpac Banking Corporation v Royal Tongan Airlines [1996] Aust Tort Reports Categories of Bailment Classification of Schemes of Bailment Coggs v Bernard (1703) 2 Ld Raym 909, (Holt CJ); 92 ER Substitutional Bailment China Pacific SA v Food Corporation of India (The Winson) [1982] AC 939, 959 (Lord Diplock) Quasi-Bailment Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220, 237 (Windeyer J) Westrac Equipment Pty Ltd v Asset Venture (2002) 192 ALR 277 at Bailment by Attornment Dublin City Distillery (Great Brunswick Street, Dublin) Ltd v Doherty [1914] AC Controller-General of Customs v Woodlands Enterprises Pty Ltd [1996] 1 Qd R

3 Bailments for Security Ex Parte Hubbard; re Hardwick (1886) 17 QBD 690, 698 (Bowen LJ): Commercial and Non-Commercial Bailments Bailment and other Legal Categories Bailment and Agency Petrifond Midwest Ltd v Esso Resources Canada Ltd (1996) 187 AR 107, [ ] (McFadyen JA) Bailment and Contract Bailment and Licence Robertson v Stang (1997) 38 CCLT (2d) Bailment and Debt Bailment and Trust Lecture Aluminium Industries Vaassen BV v Rompala Alumium Ltd (1976) 2 All ER Fisher v Automobile Finance Company of Australia Ltd (1928) 41 CLR 167, 178: Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, : The Astley Industrial Trust v Miller [1968] 2 All ER Farqhuarson Bros & Co v C King & Co [1902] AC 325, 336 (Lord McNaughton): Phillips v Brooks Ltd [1919] 2 KB Car and Universal Finance Co Ltd v Caldwell [1965] 1 QB Personal Property Security Act 2009 (Cth) overview Lecture WD & HO Wills (Australia) Ltd v State Rail Authority of NSW (1998) 43 NSWLR Chapman Bros v Verco Bros & Co Ltd (1933) 49 CLR Greenwood v Council of the Municipality of Waverley (1928) 28 SR (NSW) Petrifond Midwest Ltd v Esso Resources Canada Ltd (1996) 30 CCLT (2d) 107; 187 AR 107; 127 WAC Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Tort Reports See also: Challenge Charter Pty Ltd v Curtain Bros (Old) Pty Ltd [2004] VSC Marcq v Christie Manson & Woods Ltd [2004] QB Morris v CW Martin & Sons Ltd [1966] 1 QB Sydney City Council v West (1965) 114 CLR Scrutton LJ in Gibaud v Great Eastern Railway (1921) 2 KB 426, 435 four corners rule Daniel v Hotel Pacific Pty Ltd [1953] VLR Penfolds Wines Pty Ltd v Elliot (1946) 74 CLR Topic 4 the limits of land and fixtures The Doctrine of fixtures Elitestone Ltd v Morris [1997] 1 WLR Metal Manufactures Limited v Federal Commissioner of Taxation [1996] FCA R Abbs, The law of fixtures: Informed principle or independent predilection? (2004), 11 Australian Property Law Journal

4 Boundaries: Land Abutting Water Williams v Booth (1910) 10 CLR Boundaries and Encroachments for Land Introduction Rights Above and Below the Surface Natural Rights Boundaries of Land Fixtures and Related Matters Introduction Chattel or Fixture? Finders Building on the Land of Another Encroaching Buildings Crops and Trees Australian Provincial Assurance Co. Ltd v Coroneo (1938) 38 SR (NSW) Palumberi v Palumberi (1986) 4 BPR Lecture Land Topic 5 tenure, estates, future interests and the rule against perpetuities The doctrine of tenures The Growth of Feudalism The English Doctrine of Tenures The Manorial System of the Emergence of Copyhold The Subsequent History of Free Tenures in England Tenure in NSW Tenure and Customary Aboriginal Title The doctrine of estates Introduction Estates Reversions and Remainders Leasehold interests The fee simple The nature of a fee simple Words of Limitation The Rule in Shelley s Case Equitable Estates in Fee Simple Determinable and defeasible Fees Restraints on Alienability The life estate ordinary life estate Estate pur autre vie

5 Dower and Curtesy Enjoyment by life tenant Remainders and executory interests The limitation of successive estates Contingent remainders Equitable interests behind a use Executory interests under the statute of uses and the statute of wills The rule in Perfory v Rogers Present day legislation Perpetuities The Old rule against perpetuities The Modern Rule Against Perpetuities Lecture 5-2 remainders and perpetuities Topic 6 possession of land Lecture Topic 7 Native Title

6 Topic 1 The concept of property Reading Hepburn, S. Concepts of property, in Australian Property Law: cases and commentaries (3 rd ed, 2014), pp.1-66 Latimer, P. Property in Australian Business Law (CCH, 32nd ed, 2013) [Chapter 3] PRIVATE PROPERTY 2 CHARACTERISTICS OF WESTERN PROPERTY INTERESTS 2 The legal definition of property is relational concept the relationship between the person and an object or resource. It is a system that needs an object to operate on. Property is exceptional. It comprises a right to exclude all others and hence is a private right. Due to its enforceability against the rest of the world it is an in rem right. As opposed to an in personam right enforceable between parties in a specific relationship. The right to exclude is the sine qua non of property. Another line of argument sees a more complex moral code embedded in property including human dignity, just social relations, and self-development. ASSOCIATED PROPERTY RIGHTS 3 The right to use and enjoy the property. The right to possess the property. The right to alienate the property. The bundle of sticks analogy is often used to describe the collection of rights conferred in property, particularly in relation to land. The nature of property as relational is pointed out by the fact that one does not acquire title to a particular piece of earth when acquiring land, one acquires the right to enforce a bundle of rights in relation to the land. While this is true it is also an abstract view that does not address the social and ecological complexities of property. PROPERTY AS THE LAW OF THINGS, HENRY E SMITH (2012) 125 HARVARD LAW REVIEW Property solves the problem of the need to prescribe the outcomes of relations between persons by setting some baselines upon which, subject to the intervention of equity, those relationships can be privately managed. These baselines are shaped by information costs. To understand the value of the abstract property rights bundle we must be clear as to means and ends. The purpose of property is really to facilitate the use of things all of the other rights are ways of maximising, protecting or making more efficient the use right. What is a theory of property law?

7 The bundle of rights is more a description than a theory. It provides an analytical device or theoretical baseline. The bundle metaphor implies that the sticks within it are somehow individually detachable or can be interchanged or can survive on their own; this is not true they are interdependent. Hence a modular theory of property. The most cost-effective means of realising the interests we have in property should be employed. This cost of the means that should be weighed against the value of the use outcome. COMMENTARY Lametti the object as a social wealth is an important concept. Penner the object of the rights is important as property rights are usage rights and relate to our interest in using the object. PROPERTY IS A RELATIONSHIP Property refers to the relationship that a person has with an object rather than the object itself. Conceptualising property as a relationship allows for development of the nature of property over time in response to changing conditions. The character of the rights conferred will determine whether a property relationship is present. As a relationship between people, the property right is the privilege to deal or not deal in the object with others or to restrict or allow others to use it. Yanner v Eaton (1999) 166 ALR 258 Gleeson CG, Gaudron, Kirby and Hayne JJ I A man caught two juvenile crocodiles in alleged contravention of the Fauna Conservation Act 1974 (Qld) and was duly charged. The man claimed a special relationship with the land and described the customary nature of the activity of catching juvenile crocodiles; both of which were claimed to pre-date the common law of Queensland. The magistrate found the man not guilty. The informant appealed to the appellate court and was granted a re-trial. The man appealed the decision to order a re-trial. The focus of the Court s investigation was what interest in fauna was vested in the Crown when the Fauna Act provided that some fauna was the property of the Crown and under the control of the Fauna Authority? R Use of the word property in itself connotes a wide breadth of interests. The form of that interest must be clearly stated or evident for the full property relationship to be established. In common law no person, Crown or otherwise, has absolute property in a wild animal subject to limited exceptions e.g. to hunt animals on your own land, and to ownership over tamed animals. Property connotes exclusive use of, rights of disposal and possession.

8 That regulation by the Crown on behalf of the people of valuable natural resources does not equate to property rights in the way in which a person can have property rights. A The regulation of the use of land in the interests of the common good does not in itself constitute a ownership or a proprietary right. The Native Title Act was considered and notably s 211 was held to talk directly to the issue where it states that an act that purports to regulate activities such as hunting or fishing does not regulate such activities where native title exists. C That the use of the word property in the Fauna Act did not, and could not, extend to the full beneficial use and enjoyment of the fauna by the Crown in a property relationship. The appellant enjoyed those rights to the extent that they formed part of customary law with regard to his people s relationship with the land and the juvenile crocodiles within it. COMMENTARY In Telstra Corporation Limited v The Commonwealth (2008) 234 CLR 10, 44, the Court again reinforced the relational nature of property and the need to avoid focus on the subject of the property rights. They used two phrases which may apply in different circumstances: a bundle of rights and a legally endorsed concentration of power over things and resources. For later concept, see Gray, Property in Thin Air (1991) 50 Cambridge Law Jounral 252, 299. PROPERTY IS A LEGAL CONSTRUCT 19 Property cannot exist without enforceable legal rules. It must be supported by laws and ways of enforcing the rights. FRAGMENTATION OF PROPERTY There can be many types of property relationships with one object e.g. land can be simultaneously owned, leased, mortgaged, willed etc. DISTINCTION BETWEEN PROPRIETARY RIGHTS AND CONTRACTUAL RIGHTS 20 Property rights are enforceable in rem, against the world, in contrast to contractual rights which are enforceable in personam, against those who are a party to the relevant contract. The title holder may preclude anyone without a better right to the title in question. However, a contract right is a resource capable of being the subject of a property right. So while a contract right is enforceable in personam, ownership of that right is in rem. Examples include intangible personal property or chose in action such as shares, insurance policies or bank accounts.