Property Notes ~PART I BORDERS OF PROPERTY~

Transcription

1 Prperty Ntes ~PART I BORDERS OF PROPERTY~ 1 FIXTURES TEST RECENT CASE LAW LICENSES BARE CONTRACTUAL LICENSE & GRANT POSSESSION POSSESSION AS RIGHT IN ITSELF LAWFUL POSSESSION DISPUTES OVER POSSESSION RECOGNITION OF RIGHT AT LAW TENURE NATIVE TITLE LAND REVERTING TO CROWN... 8 ~PART II CORPOREAL HEREDITAMENTS~ 6 FREEHOLD ESTATES FEE SIMPLE FEE TAIL LIFE ESTATE LEASEHOLD ESTATES GENERAL FORMALITIES TYPES OF LEASE CHARACTERISTICS OF LEASE RIGHTS & DUTIES OF LL & T ASSIGNMENTS & SUBLEASES TERMINATION OF LEASES LIMITATIONS ON ESTATES DETERMINABLE CONDITIONAL DISTINCTIONS BETWEEN DETERMINABLE & CONDITIONAL ESTATES FUTURE INTERESTS REVERSION REMAINDER VESTED V CONTINGENT INTERESTS ~PART III INCORPOREAL HEREDITAMENTS~ 10 EASEMENTS DEFINITION TYPES OF EASEMENTS

2 10.3 CHARACTERISTICS OF EASEMENTS CREATION OF EASEMENTS REMEDIES EXTINGUISHMENT OR MODIFICATION RESTRICTIVE COVENANTS DISTINCTION FROM EASEMENT EQUITABLE INTERVENTION ELEMENTS DOCTRINE OF BUILDING SCHEMES PROFITS RENTCHARGES MORTGAGES GENERAL LAW TORRENS ~PART IV DISPOSITIONS & PRIORITIES~ 15 DISPOSITIONS WILLS ENFORCEABILITY OF CONTRACTS OBLIGATIONS ON SELLER OF LAND LEGAL INTERESTS EQUITABLE INTERESTS PRIORITIES PRIOR LEGAL V SUBSEQUENT LEGAL PRIOR LEGAL V SUBSEQUENT EQUITABLE PRIOR EQUITABLE V SUBSEQUENT LEGAL PRIOR EQUITABLE V SUBSEQUENT EQUITABLE EQUITY & SUBSEQUENT EQUITABLE ~PART V TORRENS SYSTEM~ 17 PROCESS OF REGISTRATION TWO STAGE PROCESS DISPOSITIONS DEEDS VOID INSTRUMENTS STILL CONFER TITLE INDEFEASIBILITY IMMEDIATE V DEFERRED INDEFEASIBILITY LIMITATIONS ON INDEFEASIBILITY EXCEPTIONS TO INDEFEASIBILITY

3 1 Fixtures Part I Brders t Prperty - Disputes relating t wnership f particular chattels: LL & T! items attached t prperty by T during lease? Vendr & purchaser! bjects in huse at time f cntract f sale? Mrtgagr & Mrtgagee Life T and remaindermen r reversiner. - Determined by bjective intentin with which item put in place [Cnti J in NAB v Blacker] 1.1 Test - Express terms can determine wnership s lng as satisfactry under cntract law! Mntague v Lng. - In absence, maxim = quicquid plantatur sl, sl cedit what ever is attached t the land frms part f it DEGREE f Annexatin - MANNER in which chattel attached: 1. If chattel attached ther than by wn weight i.e. screws/blts = prima facie fixture! Metal Manufacturers v Federal Cmmissiner f Tax. Even if degree f attachment very slight! Hlland v Hdgsn. Greater degree attachment, strnger the presumptin that it is fixture! Spyer v Phillipsn. Buckland v Butterfield: verandah attached t huse held t be fixture. 2. If chattel nly attached by wn weight = prima facie nt fixture: Even if embedded in sil! Hamp v Bygrave. Elwes v Maw: barn attached by wden up-right psts inset in grund = nt fixture. Hulme v Brigham: printing press attached nly by wn weight = nt fixture OBJECT f Annexatin (better test) - Reid v Smith: was bject affixed in rder t: Display chattel = nt fixture, even if attached ther than by wn weight! Westpac v Rabaiv. Benefit land = fixture. - Befre annexatin, must be shwn that annexatin abslutely necessary! Re De Falbe Objective Test - What reasnable persn wuld cnsider t be reasn fr attaching chattel t land! Hbsn v Grringe. - Actual intentin f parties nt indicative! Emmanuel (Rundle Mall) v CS (SA) Examples - Leigh v Taylr: NO FIXTURE T fr life attached valuable tapestries t wall Tapestries attached t canvas by tacks canvas nailed t wall. HL held n intentin t benefit land nly way f attaching tapestries was with nails. Similar decisin by Engl Ca in Spyer v Phillipsn relating t ak paneling nailed t walls by T. - Re Starline Furniture: FIXTURE Jinery machines blted t flr but culd easily be remved still held t be fixture as affixed fr better use f prperty as furniture factry. 3

4 1.1.3 Degree f annexatin v bject f annexatin? - Object f annexatin has far greater significance - greater reliance upn individual surrunding circumstances! Land Valuatin Tribunal - Yallingup Beach v Valuer General. - Degree test relevant in negative sense chattel nly attached by weight = nt fixture Different cnsideratins - Metal Manufacturers v Federal Cmmissiner f Tax Emmett J Wuld remval destry prperty Wuld cst f remval exceed value f prperty Wuld remval damage buildings/prperty Was attachment fr better enjyment f prperty OR f land/buildings. Nature f prperty curt less likely t infer intentin t benefit real estate if persn w/limited interest eg. T. Cntemplated use f prperty Functin t be served by annexatin f prperty. 1.2 Recent Case Law Regard t all factrs - Guldburn CC V McIntsh: curt must regard all circumstances incl. relatinship between parties when bject installed + bject & degree f annexatin. - Farley v Hawkins: varying degree f emphasis n different factrs cmmn sense apprach. - NAB v Blacker (2000) (FC): n single test, n particular factr has primacy, regard t all circumstances Cases turn n specific facts - Ball-Guymer v Livantes: ffice w/ partitin walls & ceiling nt fixture! despite walls being fixed t flr with nails & blted t sidewalls, licensee cause erectin f ffice fr temprary prupse. - Attrney General v R T C: 2 printing presses attached by nuts & blts = nt fixtures sle purpse f annexatin t hld presses steady. - Berkley v Pulett: Large paintings screwed t wall = nt fixtures sle purpse t enjy them as paintings. - Wllesmre v Ratfrd: Firbeglass huse installed at exhibitin centre nly intended t be there fr 1 year = fixture, annexed t land by steal spikes, welded t steel base plates supprting huse. - Anthny v Cth: Water pipelines frm Darwin t Mantn Dam = fixtures. - Belgrave v Barlin-Sctt: Air cnditining plants & chillers attached t rftp blted t water pipes and std by wn weight f specifically cnstructed platfrm = fixtures. - Dean v Andrew: large fabricated greenhuse blted t cncrete plinth = nt fixture. - Hynes v Vaughan: piles f rubbish (mstly sil, rtting vegetatin = fixture. - AAT Case: perating plant inside car wash = nt fixture. - Farley v Hawkins: built-in dishwasher & shed = fixtures (shed blted int cncrete & dishwasher plumbing cnnectin enugh, nt electrical cnnectin thugh). - Palumberi v Palumberi: Carpets & stve = fixtures Blinds, curtains, large built-in linen cabinet, TV antenna, utside sptlight, light fittings, prtable heater = nt fixtures T remving fixtures - T can remve fixtures s lng as still tenant! Cncept Prjects v McKay Aldersn B in Weetn v Wdcck. 2 Licenses - Mere persnal rights d nt fit int any categry f rights recgnised at law r equity. 4

5 - Only remedy damages fr breach f cntract! Kerrisn v Smith. - May yield privileges r permissins t use land OR result in restrictins ver use f land. 2.1 Bare - Prmise/permissin t use land withut cnsideratin. - Revkable by will allwing licensee reasnable time t cllect pssessins. Once revked, licensee trespasser can be remved by reasnable frce! McPhail v Persns, Names Unknwn. 2.2 Cntractual - Prmise/permissin t use land supprted by cnsideratin Cntractual licence nt Prperty right - Revkable by will f landhlder even befre any time expressly/impliedly fixed in cntract. Even if cntracting party dne n wrng landhlder still in breach f cntract thugh. - Cwell v Rsehill Racecurse: P sued D fr assault Defence was that P was trespassing D s agents remved him using nly reasnable frce. P argued he had paid D & in return D had given him leave & licence t enter AND had prmised nt t revke licence HC held fr D: P btained nly cntractual right, nt prperty right the right t see a spectacle cannt in the rdinary sense f legal language be regarded as a prperty right [Latham CJ]. Cntractual right can be revked in certain circumstances if the individual raceger behaves in a disrderly, insulting, r bjectinable manner, he may be expelled ntwithstanding that he has paid fr admissin [Dixn J]. Cntractual right des nt include remedy fr assault Dixn J: P s legal duty t leave premises after ntice f revcatin f licence! nly remedy = repayment f admissin price pssibly. Cntractual right usually des nt prvide fr specific enfrcement in equity Specific Enfrcement - Generally n specific enfrcement f rights ut f cntract! but EXCEPTIONS: Heidke v Sydney City Cuncil: " Cmpensatin nt adequate remedy fr substantial damage inflicted upn licencee by revking licence eg. hire f hall n lease (n exclusive pssessin), but shuld disappinted cuple nly be able t sue fr damages if hire cancelled day befre wedding day?? " This des nt necessarily mean injunctin shuld be granted BUT equitable remedies = discretinary & Hardie AJ exercised his discretin. - ENGLAND: quasi-prprietary rights certain valuable cntractual licences specifically enfrceable in equity! nt full equitable rights thugh n pririty (Ashburn v Arnld). 2.3 License & Grant - Licence required t use grant effectively! eg. licence t crss land t dig under legal prfit. - Licence is enfrceable as grant is enfrceable. 3 Pssessin - T recver/gain pssessin sue fr actin fr pssessin under Supreme Curt Rules. - Mre imprtant than wnership adverse pssessin can extinguish wnership. 5

6 3.1 Pssessin as right in itself - Defined n 2 criteria = exclusive pssessin: 1. Taking custdy f a thing as regards land: substantial ccupatin f an area. 2. With animus pssidendi intentin t treat the things as ne s wn & intentin t exclude all ther persns including thse w/ better claim Pssessin f land - Where 2 criteria satisfied, persn is in pssessin even if wrngfully n land i.e. squatter/trespasser. - Can be btained w/ut frmality s.31(c) LPA. - Right in rem gd against all the wrld except persn with a better right t pssessin. - Cntinues until abandned! Allen v Rughley. - May be assigned! Asher v Whitlck. 3.2 Lawful Pssessin 1. By transfer f prperty/gds 2. Res nullius: smething that has never been wned, eg. animals. 3. Abandned gds/prperty Res Nullius Taking custdy utside scpe f strict test - Yung v Hitchens: Y perated fish trawler had fished partially trapped in net, was abut t clse net and bring fish abard. H interrupted injured, killed, caused sme fish t be lst. FC QB held fr D: Pattersn J: all but reducing int pssessin is [nt] the same as reducing int pssessin. Lrd Denman CJ: P wuld have had pssessin but fr act f D; but quite certain that he did nt have pssessin It is impssible t say that he had, until he had actual pwer ver the fish. Indicated STRICT TEST: must d everything pssible t bring int pssessin i.e. fish in pssessin nce laded nt ship. - Piersn v Pst: Hunter killed fx by shting it 2 nd persn picked up dead fx claimed pssessin f it. Held that hunter nt in pssessin f fx as he had nt physically picked it up prperty f 2 nd persn Taking custdy within scpe f strict test + Animus Pssidendi - The Tubantia: P set ut t find and recver Tubantia sunken ship. P spent large amunt f mney ( 40,000) engaged steamers, tugs & emplyed divers, salvage experts. Lcated ship lng prcess f attempting t recver ship: nly 2 divers at a time, bad weather! n mre than 25 wrking days in D arrived & interrupted P: sent dwn wn divers, attempted t mr n P s buy, raise P s grappling irns & anchr. D s interruptin endangered success f P s expeditin. Engl HC held fr P held P had pssessin f Tubantia. N dubt did everything pssible in terms f taking custdy f wreck: T say that because wrk culd nly be dne 2 at a time in shrt spells with lng interruptins, and because access was restricted by weather, P did nt d enugh fr pssessin, wuld be very discuraging t the salvage enterprise at a time when it is f great imprtance. 6

7 Als, they did all they culd t take custdy with animus pssidendi that is, with intentin t exclude all thers frm pssessin: They were in a psitin t prevent any useful wrk by new-cmers. N new-cmer culd have exercised upn the wreck the kind f cntrl the Ps had. There was a pwer t exclude strangers frm interfering Abandned Gds - Abandnment is an bjective test: curt will determine if reasnable persn wuld have abandned gds depends n nature f gds. - Armrie v Delamirie: Apprentice fund jewel while chimney sweeping Had it appraised by gldsmith A rejected gldsmith s ffer, but gldsmith did nt return jewel HC fund in favur f A - A had prir pssessin (riginal wner unknwn) and was prtected against all but smene with superir right Nature f Gds Gds fund in private premises - Chairman NCA v Flack: Plice raid n Mrs. F s hme fund briefcase full f large amunt f mney Plice had warrant t search under suspicin f Mrs. F s sn. F declared she had never seen briefcase r mney F argued she manifested intentin t exercise cntrl ver any chattel in her premises, even thse she was unaware f. FC held fr F if briefcase had been fund by guest r thief surely F wuld have superir right plice had t give back case after used fr evidential purpses Gds fund in r attached t land - Waverly Brugh Cuncil v Fletcher: F fund gld brch nine inches belw surface Applied Dnaldsn LJ in Parker v British Airways Bard referring t bjects fund in r n land rather than bjects fund in a building: 1. Where bject fund in r attached t land, wner/lawful pssessr has better title than finder. 2. Where bject fund unattached n land, wner/lawful pssessr nly has better title if he exercised such manifest cntrl ver land as t indicate intentin t cntrl anything fund n it. since bject fund in land, manifest intentin t cntrl need nt be shwn, brch held t be in pssessin f cuncil Abandned Prperty - Hannah v Peel: prperty cnsidered abandned due t absence f cntrl where wner f a huse had never entered int pssessin thugh the title had devlved t him Adverse pssessin - Actin fr pssessin statute barred if time f actin is 15 yrs after dispssessin s.4 Limitatin f Actins Act 1936 (SA). - Right f wner extinguished after 15 years cntinuus adverse pssessin by anther r thers in cmbinatin s.28 Limitatin f Actins Act 1936 (SA). - Criteria: nec vi, nec clam, nec precari. Peaceful (nt by frce) Open (nt secret) Withut cnsent r permissin f wner/prir pssessr. - Re Jhnsn. - Adverse pssessr is nt successr-in-title f prir pssessr hlds pssessry title! assignable. 7