Prperty Ntes ~PART I BORDERS OF PROPERTY~ 1 FIXTURES... 3 1.1 TEST... 3 1.2 RECENT CASE LAW... 4 2 LICENSES... 4 2.1 BARE... 5 2.2 CONTRACTUAL... 5 2.3 LICENSE & GRANT... 5 3 POSSESSION... 5 3.1 POSSESSION AS RIGHT IN ITSELF... 6 3.2 LAWFUL POSSESSION... 6 3.3 DISPUTES OVER POSSESSION... 8 4 RECOGNITION OF RIGHT AT LAW... 8 5 TENURE... 8 5.1 NATIVE TITLE... 8 5.2 LAND REVERTING TO CROWN... 8 ~PART II CORPOREAL HEREDITAMENTS~ 6 FREEHOLD ESTATES... 9 6.1 FEE SIMPLE... 9 6.2 FEE TAIL... 10 6.3 LIFE ESTATE... 10 7 LEASEHOLD ESTATES... 12 7.1 GENERAL... 12 7.2 FORMALITIES... 12 7.3 TYPES OF LEASE... 13 7.4 CHARACTERISTICS OF LEASE... 15 7.5 RIGHTS & DUTIES OF LL & T... 17 7.6 ASSIGNMENTS & SUBLEASES... 21 7.7 TERMINATION OF LEASES... 24 8 LIMITATIONS ON ESTATES... 29 8.1 DETERMINABLE... 29 8.2 CONDITIONAL... 29 8.3 DISTINCTIONS BETWEEN DETERMINABLE & CONDITIONAL ESTATES... 30 9 FUTURE INTERESTS... 31 9.1 REVERSION... 31 9.2 REMAINDER... 31 9.3 VESTED V CONTINGENT INTERESTS... 32 ~PART III INCORPOREAL HEREDITAMENTS~ 10 EASEMENTS... 32 10.1 DEFINITION... 32 10.2 TYPES OF EASEMENTS... 33 1
10.3 CHARACTERISTICS OF EASEMENTS... 34 10.4 CREATION OF EASEMENTS... 36 10.5 REMEDIES... 39 10.6 EXTINGUISHMENT OR MODIFICATION... 39 11 RESTRICTIVE COVENANTS... 40 11.1 DISTINCTION FROM EASEMENT... 40 11.2 EQUITABLE INTERVENTION... 41 11.3 ELEMENTS... 41 11.4 DOCTRINE OF BUILDING SCHEMES... 42 12 PROFITS... 42 13 RENTCHARGES... 42 14 MORTGAGES... 42 14.1 GENERAL LAW... 42 14.2 TORRENS... 43 ~PART IV DISPOSITIONS & PRIORITIES~ 15 DISPOSITIONS... 43 15.1 WILLS... 43 15.2 ENFORCEABILITY OF CONTRACTS... 43 15.3 OBLIGATIONS ON SELLER OF LAND... 43 15.4 LEGAL INTERESTS... 44 15.5 EQUITABLE INTERESTS... 44 16 PRIORITIES... 50 16.1 PRIOR LEGAL V SUBSEQUENT LEGAL... 50 16.2 PRIOR LEGAL V SUBSEQUENT EQUITABLE... 51 16.3 PRIOR EQUITABLE V SUBSEQUENT LEGAL... 52 16.4 PRIOR EQUITABLE V SUBSEQUENT EQUITABLE... 54 16.5 EQUITY & SUBSEQUENT EQUITABLE... 55 ~PART V TORRENS SYSTEM~ 17 PROCESS OF REGISTRATION... 57 17.1 TWO STAGE PROCESS... 57 17.2 DISPOSITIONS... 57 17.3 DEEDS... 57 17.4 VOID INSTRUMENTS STILL CONFER TITLE... 57 18 INDEFEASIBILITY... 58 18.1 IMMEDIATE V DEFERRED INDEFEASIBILITY... 58 18.2 LIMITATIONS ON INDEFEASIBILITY... 59 18.3 EXCEPTIONS TO INDEFEASIBILITY... 59 2
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. 1.1.1 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. 1.1.2 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. 1.1.2.1 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). 1.1.2.2 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
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. 1.1.3.1 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 1.2.1 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. 1.2.2 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. 1.2.3 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
- 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. 2.2.1 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. 2.2.1.1 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
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. 3.1.1 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. 3.2.1 Res Nullius 3.2.1.1 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. 3.2.1.2 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 1923. 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
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. 3.2.2 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. 3.2.2.1 Nature f Gds 3.2.2.1.1 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. 3.2.2.1.2 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. 3.2.3 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. 3.2.3.1 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