MLL327 PROPERTY LAW EXAM NOTES

Transcription

1 MLL327 PROPERTY LAW EXAM NOTES THE CONCEPT OF PROPERTY UNDERSTANDING THE CONCEPT OF PROPERTY THE JUSTIFICATION OF PRIVATE PROPERTY CLASSIFICATION OF PROPERTY INTERESTS REAL PROPERTY PERSONAL PROPERTY DISTINCTION BETWEEN PROPRIETARY AND CONTRACTUAL RIGHTS NEW FORMS OF PROPRIETARY INTERESTS PERSONAL PROPERTY THE NATURE OF PERSONAL PROPERTY POSSESSORY TITLE JUS TERII DEFENCE ACTIONS AND REMEDIES FOR PERSONAL PROPERTY ADVERSE POSSESSION TEMPLATE FOR ADVERSE POSSESSION THE NATURE OF ADVERSE POSSESSION THE MEANING OF ADVERSE POSSESSION STATUTORY PROVISIONS ADVERSE POSSESSION AND THE TORRRENS SYSTEM FIXTURES FIXTURES TEMPLATE 1. DEGREE OF ANNEXATION 2. OBJECT OF ANNEXATION 3. INTENTION RELEVANT CIRCUMSTANCES HIRE PURCHASE AND SECURITIES CONTRACTS SPECIAL RIGHT OF REMOVAL OF TENANTS THE DOCTRINE OF TENURE THE MEANING OF RADICAL TITLE THE DOCTRINE OF TENURE NATIVE TITLE IN AUSTRALIA PRE MABO MABO V STATE OF QUEENSLAND (1992) (NO 2) NATIVE TITLE LEGISLATION WIK PEOPLE V STATE OF QUEENSLAND AND OTHERS (1996) 1

2 THE DOCTRINE OF ESTATES FREEHOLD ESTATES FEE SIMPLE FEE TAIL FEE ESTATE FUTURE INTERESTS AND ESTATES NON-FREEHOLD ESTATES THE CREATION AND ENFORCEMENT OF FREEHOLD ESTATES FEE SIMPLE FEE TAIL FEE ESTATE STATUTORY RECQUIREMENTS NEMO DAT RULE VESTED CONTINGENT INTERESTS LEGAL REMAINDER RULES THE RULE AGAINST PERPETUITIES THE MODERN COMMON LAW RULE AGAINST PERPETUITIES LEGISLATIVE MODIFICATION TO THE RULE AGAINST PERPETUITIES CLASS GIFTS CONSEQUENCES OF INFRINGING THE RULE AGAINST PERPETUITIES DIAGRAM LEASES TEMPLATE THE NATURE OF LEASE INTERESTS DIFFERENT FORMS OF LEASES DISTINCTION BETWEEN LEASE AND LICENSE DISTINCTION BETWEEN SUBLEASE AND ASSIGNMENT REQUIRMENTS FOR A VALID LEASE THE RIGHTS OF LANDLORDS AND TENANTS USUAL EXPRESS TERMS IMPLIED TERMS IN LAW IMPLIED STATUTORY TERMS REMEDIES RETAIL LEASES LEGISLATION RESIDENTIAL TENANCES LEGISLATION TRUSTS TEMPLATE FOR TRUSTS TYPES OF EQUITABLE TRUSTS EXPRESS TRUSTS NON-EXPRESS TRUSTS PART PERFORMANCE CONTRACTS FOR SALE OF LAND EQUITABLE LEASES 2

3 MERE EQUITIES EQUITY OF ACQUIESCENCE / PROPRIETARY ESTOPPEL EQUIT OF RECTIFICATION EASEMENTS EASEMENTS TEMPLATE EASEMENTS DISTINCT FROM OTHER SIMILAR RIGHTS RECQUIREMENTS FOR A VALID EASEMENT CREATING EASEMENTS ALTERATION AND EXTINGUISHMENT REMEDIES COVENANTS COVENANTS TEMPLATE BURDEN OF THE COVENANT ANNEXATION OF COVENANTS ASSIGNMENT OF A COVENANT RESTRICTIVE COVENANTS AND THE TORRENS SYSTEM EXTINGUISHMENT AND MODIFICATION OF COVENANTS REMEDIES DOCTRINE OF BUILDING SCHEMES MORTGAGES MORTGAGE TEMPLATE WHAT IS A MORTGAGE? EQUITABLE MORTGAGES RIGHTS OF A MORTGAGOR RIGHTS OF MORTGAGEE 3

4 THE CONCEPT OF PROPERTY Understanding the cncept f prperty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he right t cntrl prperty etc. is knwn as an in rem right because it is enfrceable against the rest f the wrld Private prperty rights are nly enfrceable if the legal system recgnises the rights f prprietrs and pssessrs (and thse with ther rights t prperty) Nt everything can be wned, ften fr mral and legal reasns, e.g. a parent des nt wn their child, n right t watch a mvie, n right t prduce children The justificatin f private prperty All philsphies have a different ratinale fr the existence f private prperty rights Occupatinal rights Occupatinal rights is the ntin that an ccupant f prperty wh acquires prprietary by discvering and ccupying it shuld be entitled t exert prprietary rights A persn in pssessin shuld have the right t pssess until smene with better title Ratinale The ccupant r pssessr may have expended mney n the prperty, exercised cntrl and maintenance f the prperty, and these rights shuldn t be interfered with withut gd cause Pssessin and ccupatin shuld be prtected t encurage security and certainty and t reduce the inevitable cnflict that was ensue frm unprtected ccupatin Criticisms It is rare fr peple t discver land nwadays, it is usually bught thrugh the accumulatin f wealth The mere fact that smene has discvered land desn t mean they have the right t pssess it This rewards finding and nt thse wh wrk fr their land The labur reward Peple are entitled t the fruits f their labur If smene has wrked t prduce r earn smething, they shuld be rewarded fr this This culd als be said t prmte prductivity as it prvides an incentive fr wrk Criticisms Marxists wuld argue that in a capitalist sciety, the link between prduct and labur n lnger exists In many instances, reward is given t thse wh have dne nthing t achieve it Ecnmic justificatins The ratinale fr this justificatin lies essentially in the fact that it prvides an efficient infrastructure and incentive fr the prper management and use f resurces If an individual wns prperty, they are mre likely t take greater care f that prperty and maximise its resurces, thereby encuraging prductivity and ecnmic develpment This des nt take int cnsideratin the envirnmental implicatins/csts Cnclusin Prprietary interest in prperty can cnfer freedm and self-sufficiency and stimulate a sense f persnal dignity 4

5 Hwever, in a material sciety, the desirer t have is detrimental as it desn t take int cnsideratin the ther factrs Classificatin f prperty interests PRIVATE PROPERTY REAL PROPERTY (land and things annexed t it) PERSONAL PROPERTY (Nt land, except if a lease) Crpreal Hereditaments Visible and tangible bjects e.g. Lands, buildings, windmills and fixtures. Incrpreal Hereditaments Intangible interests e.g. Easements, prfits à prendre, rights f pasture Chattels Real r leasehlds Chses in Pssessin Tangible, mvable gds e.g. Furniture, mter cars, bks and bats Pure persnalty r chattels persnal Chses in Actin Intangibles e.g. Debts, shares, patents and cpyrights REAL PROPERTY Real prperty refers t interests in land, ther than leasehld interests, and can be mre specifically defined with reference t the categries which fall within its auspice Real prperty is categrised as being either a crpreal hereditament r an incrpreal hereditament Crpreal hereditaments are interests that are tangible and can be physically mved, fr example, bks, televisins and cars Incrpreal hereditament are thse interests which are intangible rights attached t land, fr example, rent charges and easements Legally, land is referred t as real prperty, cnnting its permeant nature Under the cmmn law, land refers t a prtin f the earth s surface and includes the space abve and belw the land PERSONAL PROPERTY Persnal prperty can be described as all types f prperty, ther than real prperty and are traditinally referred t as gds and chattels Persnal prperty is classified as either chattels real r chattels persnal Chattels real, r leasehlds, include interests in land fr a fixed perid and annuities issuing ut f such interests Chattels persnal include all ther frms f prperty, bth crpreal (tangible) and incrpreal (intangible)! Chattels persnal are further divided between chses in pssessin and chses in actin - Chses in pssessin represent tangible gds which are capable f actual pssessin - Chses in actin are intangible and incapable f being physically pssessed > Pure chses are thse rights which are enfrceable but are nt identifiable by any frm f dcumentary evidence > Dcumentary chses are enfrceable rights expressly set ut in specific dcuments 5

6 Leasehld interests A leasehld interest is primarily a persnal cntract between an wner f land and a tenant, cnferring n the tenant the right t exclusive ccupatin fr a specified perid f time, in return fr the tenant paying agreed rent t the wner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cntract which is expressed t exist fr the benefit f a third party may be subsequently interpreted by a curt as creating a trust fr the benefit f the third party and thereby cnfer an equitable prprietary interest upn the third party Trident General Insurance v McNeice (1988) The factrs brne in minds by curts when elevating a cntractual right int a trust relatinship and cnferring an in rem right upn a third party t the cntract include: (a) The nature f the cntract and the intentin f the parties; (b) The impact that the prprietary interest will have upn the third parties; (c) The hardship (if any) caused t the cntracting parties; and (d) The suitability f ther, available remedies!"#$"%&$"'%()*$+**%(2*.#*#(.%0(2"&*%#*#(( A license, des nt f itself, cnstitute a prprietary title, it merely amunts t permissin t enter r ccupy premises " they d nt have the right t exclude the rest f the wrld The test t determine whether a cntract creates a lease r a license is whether the terms f the cntract cnfer exclusive pssessin f premises n an individual fr a specific perid f time, if s, then this is a lease Radaich v Smith (1959) A lease may be cnstructed in circumstances where exclusive pssessin is expressly cnferred r where the substance f the agreement makes it very clear that exclusive pssessin is intended Street v Muntfrd (1958) the ccupant f certain rms entered the premises in a way which was allwed fr under the license. Despite the use f the wrd license, the HOL held that the nature f the agreement was such that it cnstituted a lease, because it allwed t the exclusive pssessin f thse rms in exchange fr rent Distinctin between irrevcable cntractual licenses and prprietary interests It is als imprtant t distinguish between a cntractual right and a prperty right fr the purpses f determining whether the right granted is revcable A cntractual right is merely an in persnam right, and can be revked at any time Where the revcatin is wrngful remedy can be had in damages fr breach f the riginal cntract Cwell v Rsehill Racecurse C td (1937) Cwell v Rsehill Racecurse C td (1937) C sued R fr assault. R argued that C was trespassing n their land, s they had their servants remved C frm the premises (they used n mre frce than was necessary). C argued that he paid t enter the racecurse and this allwed him t stay n the land and als gave him leave and license t stay n the racecurse. Held that this was a cntract t enter and remain n the basis that behaviur was acceptable. There was neither a license nr a lease A prperty right, hwever, is nt revcable at will Wd v Leadbitter! A persn wh enters a grund will rdinarily receive a cntractual license t d s. They d nt gain a prprietary right t see the spectacle Cwell v Rsehill Racecurse C td (1937). Their remedy fr breach will therefre be damages! NB. Hwever, that the curt may give equitable relief where they believe such a respnse is suitable Heidke v Sydney City Cuncil (1952). This is a discretinary pwer used where the curt believes that damages wuld insufficiently cmpensate NB. Frm Snia Allen s ntes: 6

7 Bare license permissin t enter land, which can be revcable at will, e.g. an invitatin t attend a party Cntractual license permissin t enter land supprted by a cntractual arrangement, e.g. the purchase f a ticket t attend a ftball match License cupled with a prprietary title permissin t enter land in supprt f a recgnizable interest in that land, e.g. permissin t enter land and remve timber frm that land (knwn in prperty law as a prfit a prendre) Bare license Cntractual license Licenses cupled with a prprietary interest Revcable Nt binding n third parties Prbably irrevcable (but cnsider Cwell) Prbably nt binding n third parties Irrevcable Binding n third parties #!"#$"%&$"'%()*$+**%(.(5'-$3.3*(.%0(.(&'%$-.&$(( A mrtgage cnfers a prprietary interest upn the mrtgagee fr the duratin f the lan in rder t secure its repayment In determining whether a lan cntract is a mrtgage, the curt will cnsider the substance f the agreement When the terms are such that the lan is paid ver a great perid f time, then this will indicate a mrtgage New frms f prprietary interests As sciety develps, new frms f prprietary interests are being develped by the curts Victria Park Racing and Recreatin Grunds C Ltd v Taylr (1937) V wned a racecurse and sught t prevent T frm calling the races frm his persnal prperty nearby. They claimed that they wned the spectacle f the races and thus culd prevent T frm cntinuing t bradcast and interrupt their custm The curt disagreed, saying that a spectacle culd nly be described as prperty in a metaphysical sense The curt went n t say that new frms f intangible rights assciated with land can nly be prperly established where the bundaries f such rights are identifiable and their creatin des nt unduly interfere with the fundamental prprietary rights f thers ABC v Lenah Game Meats (2002) the HC refused t recgnise the rights f L t prevent a bradcasting segment f the practices f L (using illegally btained pssum meat). Gleesn CJ nted that that wner f land des wn all acts carried ut n the land and therefre culd nt prevent the publicatin f the vide Intellectual prperty rights cnfer wnership ver indistinct bjects, e.g. riginal ideas, inventins etc. these rights are imprtant t ensure the cntinuing develpment f technlgy These rights are cmpletely regulated by statute s the cnstraints f the cmmn law and equity are nt applicable Mre v Regents f the University f Califrnia (1990) the curt dismissed a claim f cnversin. The plaintiff argued that his dctr tk bdy cells (bld, cells, skin etc) during a prcedure fr cancer withut his permissin. The dctr then used these t further his research int caner. The curt ultimately held that the cmmunity benefit frm research by far utweighed any individual cnsideratins. The curt suggested that a better cause f actin wuld have been breach f fiduciary duty r a failure t btain infrmed cnsent In Victria, it is an ffence t purchase human tissue Human Tissues Act 1982 (Vic) s 9 Rche v Duglas (2000) the curt held that fr human tissue t be regarded as prperty, is wuld need t be classed as a fictin. The implicatin f regarding human tissue as prperty, is particularly difficult when issues f death, life saving treatment, rgan transplanting etc is cncerned 7

8 PERSONAL PROPERTY The nature f persnal prperty Persnal prperty refers t all prperty interests which d nt cnstitute land Land, r real prperty, includes nt nly tangible, identifiable land interests, but als intangible rights assciated with the land such as easements Chattels which have becme permanently attached t the land s that they cnstitute fixtures are als cnsidered t cnstitute land. Therefre, persnal prperty refers t all prperty interests nt cming within the definitin f land; in this sense, persnal prperty is a residual categry Persnal prperty is generally mvable, making the transfer f pssessin relatively easy; are f a limited time span (unlike the perpetual and enduring character f land); and cnsists f a wide variety f bjects including furniture, jewelry, vehicles, bks and clthing. It als includes intangible chattels persnal, namely chses in actin Chses in actin can themselves be further brken int tw categries; pure intangibles and dcumentary intangibles Pure intangibles are pure because they may r may nt be recgnized thrugh a dcument. Examples f pure intangibles include a debt, cpyright and gdwill Dcumentary intangibles are instruments r dcuments that are s much identified with the bligatin embdied in them that the apprpriate way t perfrm r transfer the bligatin is thrugh the dcument Pssessry title The cmmn law s remedies fr deprivatin f chattels are remedies fr interference with pssessin, r rights f pssessin, and nt wnership. Pssessin, therefre, is nt simply a physical cnditin prtected by wnership, but a substantive right r interest in itself Perpetual Trustees v Perkins There are three brad types f pssessin (1) Actual Pssessin Actual, r de fact, pssessin requires effective ccupatin r cntrl ver the item in questin It is a wider cncept than mere physical custdy as it includes any case where the persn alleged t be in pssessin has hidden the item effectively s that the persn can take it int his r her physical custdy when the persn wishes and where thers are unlikely t discver it except by accident Williams v Duglas Pssessin can be cnsensual (such as the circumstances f bailment) r nn cnsensual (i.e. withut the cnsent f the wner). Nn-cnsensual acquisitin f persnal prperty may ccur in a number f ways: A persn may find gds which have been misplaced by the true wner; A persn may find gds which were never previusly pssessed; and A persn may steal gds frm the real wner. Actual, r de fact, pssessin prvides prima facie evidence f wnership and als f itself creates a legal right t pssess enfrceable against all wh cannt shw a superir right Gatward v Alley Once actual pssessin can be prven, the pssessr will acquire what is referred t as a pssessry title The nly title that can defeat a pssessry title is a prprietary title Armry v Delamirie (1722) " case f the chimney sweep wh finds a necklace and then successful brught an actin fr trver f that necklace Mrever, pssessry titles can be used, enjyed, sld r devised Asher v Whitlck (1865) The wner f a pssessry title is als entitled t just cmpensatin fr the acquisitin f that land by the Crwn Perry v Clissld A persn hlding a pssessry title wh is subsequently dispssessed will then acquire a prir pssessry title Prir pssessry title will, as a general rule, defeat actual pssessin under the relativity f title principle 8

9 (1)(a) Prving actual pssessin In rder t gain this pssessry title it must be shwn that the alleged pssessr actually pssesses the gds. This is dne by prving that yu have a sufficient level f cntrl ver the gds Occupatin r cntrl will be effective if it is sufficient as a rule, and fr practical purpses, t exclude strangers frm interference with the ccupier r cntrller s use and enjyment. The existence f this practical ability t exclude will depend n: The kinds f physical cntrl and use f which the thing in questin is practically capable The Tubantia Whether there was an intentin t pssess the thing in questin Parker v British Airways Bard; and Whether anther persn, able in law r in fact t bject t the ccupatin r cntrl, has cnsented r acquiesced t it Thus, the level f cntrl needed depends entirely n the circumstances f the case. Cnsider the fllwing examples: The Tubantia The plaintiffs began a salvage peratin with respect t a wreck called the Tubantia. They lcated the wreck and mred tw vessels at the wreck. They als ascertained and marked ut the area ccupied by the Tubantia with buys. The buys gave them direct access t the hull, which assisted their diving peratins. The defendants arrived a year r s later with a steamship, which they anchred in clse prximity. The plaintiffs requested them t leave, claiming the wreck was in their pssessin. The curt held that it was, and tk expert evidence frm the Trinity Huse (a British salvage cmpany) t the effect that the plaintiff was in pssessin f the wreck. The depth at which it rested, cmbined with the mrings and buys that had been set up, raised the presumptin that they were in effective pssessin f the wreck Bremner v Bleakley The defendants wned land in which they undertk excavatins t create large trenches. The natural frces f the wind carried sand frm the plaintiff s land nt the defendant s land, where it was caught and kept in the trenches. The defendant sld this sand fr a prfit. The plaintiff argued that they had prperty in the sand and that it was unlawfully detained by the defendant. The curt held that nt nly was n prperty held in the sand, but n actins f the defendant cntrived t mve the sand t their land. It was the natural frces alne which mved the sand acrss, and fr this the defendant culd nt be held liable. Sil r sand may becme the prperty f the wner n whse land it lies, but the natural mvement f the tpsil culd nt be claimed t be a chattel. Hdgins JA stated that the wner f land is entitled t all the natural advantages belnging t that land, and therefre t all things which in the curse f nature may be depsited theren ; hwever, the peratin f natural frces legally divests the wner f pssessin and wnership, and it passes nt the next prperty Chairman, Natinal Crime Authrity v Flack Flack wned prperty which was searched by the plice in an unrelated matter. The plice fund a suitcase hlding a large amunt f mney in cash. The plice tk the case as evidence in an investigatin. The investigatin fell thrugh. Flack claimed the pssessed the case and that it shuld be returned. The curt held that an ccupier f private prperty will rdinarily manifest the necessary intentin t cntrl chattels within the prperty. Nthing n the facts lifted this general presumptin, and thus Mrs. Flack had a pssessry right t the case. Waverly Brugh Cuncil v Fletcher Fletcher used a metal detectr in a Natinal Park \ t find a rare valuable brch. The curt held that the act f metal detecting and excavating was an invasive act and nt within the recreatinal purpses that the public was given the authrity t perfrm. The act itself was inherently invasive and thus nt recreatinal. The judge saw n reasn t nt apply the general rule that the wner f land has better title t an bject fund in r attached t his land than the finder (2) Cnstructive pssessin Cnstructive pssessin is the state f being in pssessin in the eyes f the law even when actual physical pssessin is nt present Cnstructive pssessin basically refers t situatins where yu have gds under yur effective cntrl, even thugh the gds may nt be physically in yur pssessin. Examples include where gds are lcked r secreted away by yu, r where they are pssessed n yur behalf by an emplyee (Willey v Synan), agent, guest, licensee r bailee at will (Perpetual Trustees v Perkins). In these situatins the law recgnizes that yu can gain cntrl f the bjects at will, and are thus cnsidered t be in cnstructive pssessin 9

10 In these situatins, an wner nt in actual pssessin may nevertheless bring an actin in trespass t chattels against strangers, but nt against the emplyee, agent, guest, licensee r bailee at will with custdy f the chattels Penflds Wines v Ellit An actin in trespass can nly be had as against the emplyee/agent/etc where they treat the item in a way which breaches their cntract r agreement with yu Nte that in situatins f a bailment, nly a bailr at will will be cnsidered t be in cnstructive pssessin. A bailment at will is a bailment whereby the bailr (the wner) can repssess the gds at any time (r, at their wn will ) Other bailment agreements that are nt at will d nt cnfer this right f immediate repssessin, and thus the bailr/wner is nt cnsidered t be in cnstructive pssessin " they have title in the gds, but the right t exclusive pssessin lies with the bailee until the bailment has finished Cnstructive pssessin f an article will als remain with the wner even thugh he r she has lst it, r even abandned it, prvided that n ther persn has taken actual pssessin f it Kppel v Kppel A persn in cnstructive pssessin f smething is presumed t be its wner. This presumptive pssessry title, whether wrngfully acquired r nt, is gd against the whle wrld except thse wh can shw either a superir title, r authrity under cmmn law r statute. It accrdingly grants, as against strangers and wrngders, all the rights and remedies f a persn with an immediate right t pssessin (3) Right t pssessin A right t pssessin is a legally enfrceable right t have actual pssessin. It is a right the nature f prperty, and transmissible accrding t the nature f the item that is the subject f the right t pssess Gatward v Alley The right t pssessin is a nrmal incident f wnership, but may be temprarily suspended, as in a bailment fr a term (where the bailee will have the right t pssessin) A right t pssessin may als exist apart frm bth actual and legal pssessin, as where a rightful pssessr has been wrngfully dispssessed Mre than ne right t pssess may exist in respect f a particular item. Thus, the right t pssess cnferred by actual pssessin is subject t anther shwing that he r she has a better right Jus tertii defence The jus tertii defence states that even thugh the plaintiff may have a better pssessry title t the land than the defendant, a superir title t bth claims lies with a third persn wh is nt a party t the case As a general rule, a defendant in an actin fr wrngful interference with gds cannt escape liability by shwing that a third party has a better title than the plaintiff (the jus tertii defence) Hwever, a defendant may set up the jus tertii where (China Pacific SA v Fd Crp f India): 1. The defendant s wn title is claimed thrugh the third party, such as where the defendant:! Cmmitted the cnversin r wrngful detentin under the third party s authrity; r! Is defending the actin fr wrngful interference with the chattels under the third party s authrity; r 2. Where the defendant has been evicted by the third party s title paramunt 3. Where the plaintiff was nt in pssessin and relies slely n an immediate right t pssessin Banks v Ferrari. In this case the plaintiff must rely slely upn the strength f his prprietary title Fllwing Perry v Clissld, it seems established law that the defence is nt available generally fr interests in land, as it wuld cntradict the traditinal principle that prf f a prir pssessry title may defeat the claim f a subsequent pssessr. Instead, the defence is largely nly available in the abvementined situatins, such as where the defendant is acting with the authrity f the prprietary titlehlder The jus tertii defence des nt apply t wrngders It is als questinable that the defence even applies t persnal prperty Jeffries v Great Western Railway Pssessin is still prtected ultimately under the law, and the jus tertii defence will nt avail wrngful pssessin, unless that pssessin was under the authrity f the true wner 10