Property Law 2016 1
Topic 1.1: Introduction to Property... 13 Meaning of Property... 13 (a) Definition according to features of property... 14 Features of property (Blackstone)... 14 Features of property... 17 Millirrpum v Nabalco (1971)... 17 Mabo v State of Qld (2)... 18 (b) Property defined with reference to Content (Honore)... 18 Bundle of stick metaphor... 19 (c) Property defined as a relationship... 19 Yanner v Eaton... 20 Legal question and submission in Yanner... 21 Decision of the court in Yanner... 21 (d) Property as object of public law/human right... 22 Preliminary findings... 23 Justification of property... 24 Sources of Property law... 24 Topic 1.2: New Forms of Property... 26 New forms of property... 26 Virtual property... 26 Resources outside of private ownership... 26 Natural resources... 27 (a) Resources incapable of ownership... 27 (b) Resources incapable of ownership... 29 (c) Resources incapable of ownership... 31 Topic 1.3: Contractual & Property Rights... 33 Contractual Rights... 33 Property Right... 33 Distinction between Lease and Licence... 34 Lease and Licence... 35 Lease... 35 Licence... 35 Differentiation... 35 Cowell v Rosehill Racecourse Co Ltd (HK)... 35 Summary... 36 Classification... 37 Classification with reference to jurisdiction:... 38 Classification according to nature... 38 Historical differences... 38 Real property... 38 Personal Property... 39 Leases... 39 Summary... 40 Topic 1.4: Air Rights, TDR & Carbon Rights... 42 Topic 2.1: Possession and Title... 46 2
(1) Possession... 46 (1A) Legal Consequences of Possession... 47 (1B) Scope of Possessory Title... 48 (1C) Possessory Title of Personal Property... 49 Finders Keepers Rule (CB 2.12) à LOOK AT FINDERS PRINCIPLE at bottom of topic... 49 Waverley Borough Council v Fletcher... 50 (1D) Enforceability of possessory title... 51 (1E) Competition between possessory title holders... 51 (1F) Prior possessory title and native title... 53 (Mabo 2)... 53 (1G) Bailment (not that important in our context)... 53 Seisin... 55 Importance of possession... 55 Questions... 56 Summary: Finder s Principle... 57 Topic 2.2: Fixtures... 59 FIXTURES ANSWER PLAN... 59 Fixtures... 60 Relevance of the Rule... 61 Two Tests... 62 (1) Degree of Annexation (starting point)... 62 (2) Object of Annexation... 63 Factors... 64 Elitestone Ltd v Morris (HL) UK... 65 Tenant s right to remove... 66 Third parties... 67 Statutory protection... 70 Fixtures Exercise 2.1... 70 Question 2... 71 Topic 3.1: Adverse Possession... 72 Principle of Limitation... 72 Example: JA Pye (Oxford) v Graham (HL)... 72 Meaning of Adverse Possession... 73 Title Hierarchy... 74 Rationale for Adverse Possession... 74 Requirements/Elements... 75 1) Factual control:... 75 3) Limitation period... 75 Elements in Depth... 76 (1) Factual control... 76 (3) Limitation period... 79 Adverse Possession (Part 2)... 81 Continuous uninterrupted possession... 81 Kierford Ridge Pty Ltd v Ward... 81 Against which Owner... 82 3
Important:... 82 General Principle 1... 83 Expediting adverse possession period against future title holders... 83 Limitations of Action Act 1958 (Vic) s 10(2) ** Only for Future Title Owners / future interests... 83 General Principle 2... 84 Casebook Example pg. 166... 84 Adverse possession against lesser interest... 85 Crown land... 85 Against the Crown/ statutory bodies... 86 Interruption of adverse possession... 86 1. Assertion of title... 86 2. Acknowledgment of title:... 86 3. Abandonment of possession:... 87 Disability and Fraud (extension)... 87 It is important to consider who is the paper title owner and who is the adverse possessor? If paper title owner is a disabled person then this might be relevant. Or if the is a fraudster then this might be relevant.... 87 Disability... 87 Fraud... 87 Sections... 87 Consequences of adverse possession... 88 Consequences of adverse possession under Torrens... 88 Consequences of adverse possession under Torrens... 89 Procedural aspects... 89 Adverse possession and human rights... 89 Answer plan (Case Book pg. 204)... 90 Topic 4: Doctrine of Tenure... 93 History... 93 Tenure Definitions... 93 Doctrine of tenure... 94 Tenure Reform... 94 Doctrine of Tenure distinguished from allodial title (Europe) and doctrine of estates... 95 Principles of Settlement... 95 Settlement... 96 Adoption of Feudal Tenure in Australia... 96 Feudal tenure Australia... 97 Scotland... 97 Doctrine of Tenure: Native Title... 99 Native Title... 99 Mabo v Qld (1)... 99 Mabo (2)... 100 (a) Indigenous Possession... 100 (b) Rejection of the feudal tenure system... 101 (c) Rejection of enlarged terra nullius doctrine... 101 4
Radical title... 102 Summary... 103 Remaining features of doctrine of tenure today... 103 Native Title Definition, Nature & Establishment... 105 NATIVE TITLE SUMMARY... 105 Native Title Definition... 109 Examples of Native Title... 110 Mabo v Qld 1... 110 Mabo v Qld 2... 111 Radical title the tool the court resorted to... 112 Extinguishment of Native Title... 113 Nature of Native Title... 113 Features of Native Title... 114 Dynamic Nature can be a problem... 115 Establishing Native title... 115 Yorta Aboriginal Community v Victoria à an explanation of requirements of NT Act... 116 (X) Bennell v State of WA [2006] FCA 1243 frozen in time... 118 Yanner v Eaton... 119 Approaching a Question... 119 Summary of Questions if you have a Native Title interest you want to prove. 120 Native Title Extinguishment, Expiry & Act... 121 Native Title... 121 Termination of Native title... 122 Extinguishment... 122 Forms of Extinguishment... 122 Non-Extinguishment... 123 Legislative Powers with regard to Native Title... 123 Constraints on legislative powers to extinguish or diminish native title:... 124 Susceptible to Destruction/Termination... 124 Inconsistent Grant (Mabo 2)... 124 Fejo v Commonwealth... 125 Wik People v Queensland had far reaching consequences... 125 WA v Ward... 128 WA v Brown (HCA) [not in Study Guide or textbook] illustrates how to apply principles... 129 Native Title Act 1993... 130 Recognition of NT... 130 Determination of Native Title (s 225)... 131 Public Registers... 131 Acts... 131 Validation of: Past Acts... 131 Intermediate Acts - between 1 Jan 1994 and Wik (1996)... 132 Future Acts (adoption of NTA onwards cutting out the intermediate acts)... 133 Summary... 134 Topic 6.1: Doctrine of Estates... 135 ESTATES ANSWER PLAN... 135 5
Doctrine of Estates... 138 Estates... 138 Freehold Estates... 140 Seisin... 140 Fee Simple... 140 To Create a Fee Simple... 140 Modern Meaning of a Fee Simple... 141 Life Estate... 142 Granting a Life Estate... 142 Future Interest... 143 Forms of Future Interests... 144 Summary... 144 Doctrine of Equitable Waste... 144 Statutory Requirements for Creation of an Estate: Deed... 145 Writing... 145 Nemo Dat Quod Non Habet Rule... 146 Examples:... 146 Vested and Contingent Interests... 147 3 Categories of Interest... 148 3) Determinable Interest... 148 Distinction... 150 Importance of Distinction... 150 Zapletal v Wright deals with the distinction... 150 Summary... 151 Doctrine of Estates Remainders & Reversions... 152 Future Interests... 152 (A) Vested remainder Interests:... 152 (B) Contingent Legal Remainder Interest... 152 4 Set of Rules... 153 Trust... 155 (6.3) Restrictions on the Right to Alienate... 155 Restraints against Alienability... 156 Policy... 156 Hall v Bust... 157 Nullagine Investments Pty Ltd v WA Club Inc... 157 Elton v Cavill... 158 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc... 159 Conclusion... 159 Questions... 160 Topic 7.1: Leases... 163 LEASES ANSWER PLAN... 163 Leases... 165 Historical Development... 166 Character of a Lease... 166 Essential Elements... 167 Different Forms of Leases... 167 (1) Fixed Term Lease e.g. 1 year (starts 1/1/16 ends 31/12/16)... 168 6
(2) Periodic Tenancy e.g. month to month dependant on rent payment... 168 (3) Tenancy at Will... 168 (4) Tenancy at Sufferance... 169 Requirements for Creation of a Lease... 169 (a) Statutory formalities... 170 (b) Exclusive Possession... 170 Radaich v Smith (1959) High Court... 171 Street v Mountford [1985] AC 809... 171 Bruton v London Quadrant Housing Trust (HL) this decision illustrates incorrect principles... 172 (C) Certain in Duration... 173 Examples... 174 (5) Equitable Lease... 174 (a) The Walsh v Lonsdale equitable lease... 175 (b) Tenancy by estoppel... 175 (6) Tenancy by Estoppel... 176 Right to Assign or Sub-Lease... 177 Assignment and Sublease... 178 Assignment... 178 Sublease... 178 Privity of Contract parties to a contract... 178 Privity of Estate... 179 Relevance of distinction between Privity of Contract and Privity of Estate... 179 Leases Rights, Duties, Termination and Remedies... 181 Usual Covenants (Usual Terms in a CT)... 181 Implied Common Law Covenants... 181 Test of Implication... 181 Common Law Duties... 181 (1) Duty of Reasonable Repair by Landlord... 181 (2) Duty to Exercise Reasonable Care by Landlord... 182 Duty of Care... 182 Different Formulations of Duty of Care... 183 (3) Implied Covenant to Provide Tenant with Quiet Possession... 183 (4) Implied Covenant of Non-Derogation from Grant by Landlord... 184 (5) Implied Covenant to Use Premises in a Tenant-Like Manner by Tenant... 184 (6) Implied Duty by Tenant not to Commit Waste... 184 (7) Implied Duty of Tenant to Yield Up Possession at the End of Lease... 185 Express Contractual Duties... 185 Termination of Lease... 186 Remedies... 186 Termination: Forfeiture... 187 Progressive Mailing House v Tabali Pty Ltd... 188 Repudiation... 188 Chan v Cresdon... 189 Hybrid Nature of a Lease... 189 Tenant s Fixtures... 190 Review Questions... 190 7
Topic 8.1: Equitable Interests... 192 Historical Background... 192 Equitable Interests... 193 Development of Equitable Interest... 194 The Use (the Trust)... 195 DKLR Holdings Co Pty Ltd v Commissioner of Stamp Duties... 196 Interest of Beneficiary... 196 Types of Trusts... 197 Express Trust... 198 Duties of Trustees... 199 Rights of Beneficiaries... 199 Resulting Trust... 199 Constructive Trust... 203 Muschinksi v Dodds... 203 Baumgartner v Baumgartner (HC)... 204 Requirements for Remedial Constructive Trust... 204 If someone has created an impression that a certain state of affairs existed, and someone else acted to his detriment, the creator of the impression can sometimes be estopped, and a constructive trust can be created... 205 Giumelli v Giumelli... 205 Ø an example even though HC didn t recognise a trust but facts illustrate a possible scenario or example where we can construe a trust with reference to estoppel... 205 Institutional Constructive Trust... 206 à Institutional Constructive Trust: Sale ß IMPORTANT (common situation) 206 à Tanwar Enterprises Pty Ltd v Cauchi... 207 Equitable Interests, Formality Requirements and Mere Equities... 209 Other Equitable Interests in Land... 209 Formality Requirements for Equitable Interests... 212 Pre-Conditions for creating an Express Trust... 212 Summary of formality requirements... 213 Doctrine of Part Performance... 214 Requirements... 214 Enforcement of Equitable Interests... 215 Equitable Remedies... 215 Westdeutsche Landesbank Girozentrale v Islington London Borough Council... 215 Mere Equities (subcategory of equitable interests)... 215 What is a Mere Equity?... 216 Sometimes a mere equity has proprietary features, sometimes it has personal features:... 216 Proprietary Character... 216 Personal Nature... 217 Mere equity in a court case:... 217 Latec Investments Ltd v Hotel Terrigal Pty Ltd... 217 Ruthol Pty Ltd v Mills... 218 Hierarchy of Interests... 219 8
Questions... 219 Topic 9.1: Easements... 222 Natural Rights... 222 Nature of Easements... 222 Substantive Requirements for a Valid Easement... 223 Elements... 223 1) Requirement of Dominant and Servient Tenement... 224 2. Easement Must Accommodate Dominant Tenement... 224 3. Dominant and Servient Owners must be different... 225 4. Right must be Capable of Forming Subject Matter of a Grant... 226 Common Easements... 228 Creation of Easements... 228 Distinction between Grants and Reservations... 229 Grant (where the new purchaser requires the easement)... 229 Reservation (where the seller/owner still requires access and therefore an easement)... 229 1. Express Grant and Reservation... 229 Equitable Easement... 230 2(a). Implied Grant... 230 Presumptions... 231 Continuous and Apparent Easements... 233 Non-Derogation Principle... 233 2(b). Necessity... 234 2(c). Common Intention or Construction... 235 Common Intention:... 235 Construction... 236 3. Easement by Prescription... 237 Difference to Adverse Possession... 238 Timing... 238 Torrens System not applicable... 238 Summary... 239 4. Easement by Statute... 239 Easements Modification, Extinguishment & Profit a Prendre... 240 Construction of Easements... 240 Remedies... 241 Modification or Extinguishment of Easements... 242 Express Release... 242 Unity of Title... 242 Changes in Circumstances... 243 Change of Use... 243 Abandonment by Non-User... 244 Impact of Abandonment on Registration... 246 Easement of Profit À Prende (Right of Taking)... 246 Right is qualified to natural produce à Fructus Naturales; Industrialis... 246 Enter Land... 246 Rent Charge... 247 Questions... 247 9
Topic 10.1: Restrictive Covenants... 251 Summary/Walkthrough... 251 Nature... 252 Issues Example:... 253 Definition... 254 Austerberry v Corporation of Oldham... 254 Austerberry Principle... 255 (2) Passing of Benefit of a Restrictive Covenant Under Common Law... 256 Requirements (before this can take place):... 256 Touch and Concern & Intention to Bind... 257 (3) Passing of the Burden of a Restrictive Covenant in Equity... 258 Exception Developed in Equity... 258 Passing of Burden in Equity... 259 Attaching Burden of Covenant in Equity: Burden... 261 1) Restrictive Rather Than Positive in Nature... 261 2); 3) Covenant Must Benefit Identifiable Land... 261 4); 5) Intention to Impose Burden Upon a Knowing Successor in Title... 262 Torrens Land... 263 Examples... 263 (4) Passing of Benefit of Covenant in Equity... 264 Restrictive Covenants Assignment & Building Schemes... 265 Assignment of Benefit of Covenant at Law... 265 Statutory Requirements (s.134 PLA)... 266 Assignment in Equity... 266 Summary... 266 Restrictive Covenants: Building Schemes... 266 Doctrine of Building Schemes... 267 Small v Oliver & Saunders (Dev) Pty Ltd... 268 Modification and Extinguishment of Restrictive Covenants... 269 Modification and Extinguishment of Restrictive Covenants by Statute: S 84 PLA (Vic)... 269 Section 84 formulated in Stanhill Pty Ltd v Jackson... 270 Remedies for Infringement... 271 Topic 11: Mortgages... 273 Secured Loan... 273 Types of Mortgages... 273 Possessory Securities... 274 Old Title Mortgage (CL and old Aus system)... 275 Redemption... 276 Torrens Mortgages... 277 Contractual Formalities... 278 Equitable Mortgages... 278 1) Formal Mortgage Over Equitable Title... 279 2) Formal Mortgage Improperly Executed... 279 3) Specifically Enforceable Agreement to Mortgage... 279 4) Mortgage by Deposit of Title Deeds/documents... 280 10
Rights of the parties... 282 Rights of Mortgagor (Debtor)... 282 Rights of Mortgagor: (1) Equity of Redemption... 282 Old Title Mortgage... 282 Equity of Redemption:... 283 Clogs On Equity of Redemption... 283 Rights of Mortgagor: (2) Possession... 284 Rights of Mortgager: (3) Leases... 285 Rights of the Mortgagee (Bank/Creditor)... 286 Rights of Mortgagee: (1) Right to Sue for Loan Money... 286 Right of Mortgagee: (2) Right to Alienate the security interest... 286 Right of Mortgagee: (3) Right to Possession... 287 Right of the Mortgagee: (4) Foreclosure... 287 Right of the Mortgagee: (5) Mortgagee s Power of Sale... 288 Manner in which sale must be Conducted (Vic)... 289 Discharge of Mortgage... 292 Property Exam Revision Lecture... 295 Exam Structure... 295 Hints:... 295 Exam Paper 1; 2015... 295 11
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Topic 1.1: Introduction to Property Ø Meaning of the concept of property Ø Justification of private property Ø Sources of Property law Meaning of Property Property means different things to different people and the concept is used in different contexts Three basic meanings: 1. Things people own 2. Things themselves Objects themselves Land (real property) Fixtures (fixed to house & land) Chattels (Goods) (personal property) Chattels Real Book can be a property, but ownership or right to the object is another thing. 3. Rights which people have to things Property right: right to land or goods (to be distinguished from) Personal right: right to another person in terms of a contract Property is a platform for rest of private law (Smith) Defining Property Law Property can be defined: (a) with reference to its features a. certain characteristics allows the thing to be classified (b) or distinguishing it from a personal right a. as property rights are not contractual rights (c) with reference to its content a. what is included in the idea of property (d) as a relationship a. a broader approach by seeing property as a relationship between the persons and the object and different persons (e) as an object of public law/human right a. E.g. Bill of Rights does not allow you t be deprived of your property without due process of law b. No private ownership of land/river/mountains in China, it is all government owned (Communism), whereas in Australia if you buy a house you own the house itself, the land underneath, the water etc. 13
Owning your Body and Life Life o Not recognised in Australia for euthanasia o Auto-Icon naming a philosophers body and giving his body to a museum Body Parts o Recognisable in Australian law to donate organs (a) Definition according to features of property Blackstone s Common law definition: There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. (Blackstone Commentaries on the Law of England) (CB 3) Features of property (Blackstone) The following features can be deduced from Blackstone s definition: (a) Dominion (right to use object) Control exercised by a person over an object Dominion denotes some legally authorised power Power concentrated in a specific person(s) ( sole one person): Right to a bicycle (property right) vs right of access to library (personal right) Indigenous rights concentrated in clan/group Some power over that book (b) Things of the world (External) The notion of a thing Outside of a person o The human cannot be the object or property E.g. physical property (land, chattels), or intangible (intellectual property, shares, trademarks etc.) Things must be separate and apart from ourselves Importance of object in property relationship (Lametti) (c) Externalised Demarcation of property/boundaries o E.g. a house has a boundary that is identifiable. Things that are unequal between men: The first man who, having fenced in a piece of land, said This is mine, and found people naïve enough to believe him, that man was the true founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this impostor; you 14
are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody. Jean-Jacques Rousseau (Discourse on the Origin and Basis of Inequality Among Men) (d) Exclusion To exclude others from: (a) enjoying same rights; or Preventing someone from enjoying the same rights or having access from what you have. (b) interfering with the exercise of rights Exclusion Not physical but the law recognises you entitled to exclude everyone else, and this power will be enforced if brought to court. State can enforce exclusion (matter of law not power) Exclusion serves the use interests of property (Smith) Property consists primarily in control over access excludable - (Gray) o Controlling access to that property excludability is an important feature of property. o Feasible to regulate access by excluding other people. o Excludable if it is feasible for a person to exercise regulatory control over access of strangers to benefits of resource (Gray) Criticism: o Not an absolute concept ( total ) one may not interfere with rights of others or public property, health and safety Not a total concept to exclude everyone all the time forever. o E.g. the rights of someone else o Not the only right inherent in property (there are other associated rights) o Exclusion is not a characteristic of indigenous relationship: connection with land rather than exclusion Mabo case (e) Transferability of right Property rights are said to be transferable/assignable and this is an important feature. Criticism: o Too wide. Most rights are transferable (including personal rights) o Not a unique feature of property as you can also assign right in a contract o Some property rights are not transferrable or assignable (seen in CT clause) o Some property rights are not assignable (non-assignability residential lease) o Native title rights are not transferable (Millirrpum) The exception Only transferrable from generation to generation 15
(f) Enforceability of right against other persons Right in rem (operates against the world) is a property right o Enforceable against a large and indefinite class of people o Continued existence of a thing is required o Rather a consequence or feature of a property right than identification tool Criticism o A consequence rather than a feature o Must accept this approach is universally accepted. Universal acceptance of in rem operation of a property right: A real right, such as ownership, is as every first year law student knows, enforceable against the whole world. (XZS Industries v AF Dreyer (Pty) Ltd (2004 (4) SA 186 (W) 196F/G) Right in personam (enforceable @ person) personal right o Enforceable against specific person (parties privy to relationship) Not dependant on existence of thing o Basis for division between personal rights and property rights (g) Value Market value Not necessary characteristic of property Sentimental value just because of no market value Negative value? (toxic chemicals) Personal rights also have market value (h) Legal recognition Can argue that a property right is useless without being enforceable. Property rights must be recognised and legally enforceable. Property and law are born together and die together. Before laws were made there was no property. Take away the laws and property ceases (Bentham) It is a legal construct: there is no property in absence of a legal system This is not unique to property rights Legal identity of property depends on legal system in which it is enforced: Common law, Equity or statute Other rights are also recognised by law Aboriginal rights recognised as proprietary because the common law and statutory framework recognise them Aboriginal rights only recognised if rights have their origin in pre-sovereignty law and custom (Yorta Yorta) Pre-sovereignty rights may encumber title of Crown upon colonisation Post-colonisation aboriginal rights are destroyed One must not overstate essential characteristics of property to identify property (see for example Millirpum decision) 16
Features of property Use and enjoyment of land/goods Excludability Enforceability External to humans Alienability Value (economic, sentimental or negative?) Legal construct Identifiable (boundaries) Definable Control over access Problem Example: o Taking cells from a human. Confronted by Court. Must explain the new product is a property or not, and check against these features of it is property or not. Criticism of features approach o One must not overstate essential characteristics of property to identify property (Millirpum decision) Millirrpum v Nabalco (1971) Not recognised but later recognised in Mabo. o Illustrates importance in looking through mirrors of common law and trying to identify if something is property. Facts: o Claim that a mining company was interfering with right to perform ritual ceremonies Issue: Whether Aboriginal customary rights over land qualified as property o Judge followed characteristics and whether native title met these characteristics. o I think that property in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights must co-exist before there can be proprietary interests, or deny that each of them may be subject to qualifications. (Blackburn J) o According to the court the following incidents of property were absent: Right of clan extended to performance of rituals only (no use and enjoyment); No right to exclude other members or other clans (not exclusionary); No right to alienate the land because Aboriginal custom prohibited transfer of rights (inalienable) Held: 17
o Absence of property rights to land in Anglo-Australian meaning of the term Criticism: o Right related to land to which they were connected o Had power to sever connection with land by moving away o Right to perform ceremonies can be a property right (similar and compare to easement) o The mere fact these features were not present does not mean it was not a property interest Mabo v State of Qld (2) Native title recognised by the common law despite the fact that it did not fit the Western definition of property o But has certain special features Native title: interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by indigenous inhabitants (Brennan J) (Vide s 223 NTA (CB 16) Native title (special form of property) has its own special features: o Native title is inalienable (gen to gen); o Not transferable to third parties (gen to gen) (transferred from generation to generation or to Crown ito its pre-emptive right); o Native title is vulnerable, as it can be extinguished by the Crown s exercise of radical title o Traditional belief of belonging to land Despite limitations, Bartlett still argues it is a property right in a sense that if Federal govt takes the rights away, you can receive compensation ect.. Native title is proprietary (Bartlett): o Claim for compensation (s51(xxxi) CA 1901(Cth)) o Exclusionary because of availability of equitable and common law remedies o Burden upon Crown title (b) Property defined with reference to Content (Honore) For example o Content inside the Coke Bottle Property is a bundle of rights Property include following elements (forming basis of) property: 1. Right to possess (exclusive physical control) 2. Right to use (use and enjoyment) 3. Right to manage (determine who may use and how) 4. Right to income (right to value generated by thing) 5. Right to capital (right to consume, waste and destroy) 6. Right to security (right to exclude others) 7. Power of transmissibility (right to transfer) 8. Absence of a term: indefinite right to enjoy, does not terminate 18
9. Prohibition of harmful use (refrain from interfering) 10. Liability to execution (liability for satisfaction of debt) 11. Residuary rights (rights which governs entitlements of others) Rights taken in a bundle and states as property. Bundle of stick metaphor It confers upon the holder a bundle of rights which refers to the aggregate of rights associated with property enforcement o But can split owner in legal and equitable interest over the property. Provides an accurate description of whom can do what to whom in a relationship Problems with bundle of sticks metaphor: o Abstract treatment of property, each and every case looked at in the same bundle and not a modern way to observe it o Defines according to constituent parts and treat each parcel of land similar o Problematic with propertisation of natural resources o Attempt to analyse legal relationship to smallest atoms (Smith) o More of a description than a theory (Smith) Bundle of sticks metaphor focuses on the collection of interrelated rights rather than a single defined notion (c) Property defined as a relationship Property is perceived not as a right over an object but right to a relationship. Lay language: specific tangible object o Not the right to the book but the relationship (Hohfeld) Hohfeld rejected Blackstone s idea of property as an absolute right and characterisation as a physical thing o It is an absolute right (not always true though), and that property maintains a relationship. The owner of the book has the right to the object, but can expect you not to interfere with the exercisable right. All rights are concerned with relationships and not things (Hohfeld) Rather a relationship between an individual and an object/right rather than the object/right itself (relational) o Property is a relational focus rather than object focus. Things form the backdrop of relationships (Smith) More European outlook: A relationship entails: (a) relationship between property holder and thing; and (b) relationship between property holder and third parties (exclusion/enforceability) 19
The first relationship involves the use and enjoyment of the object, the other relationship involves the element of excludability (an important feature). Relationship can be broken down into powers, duties, rights and immunities Property is an exclusive and private relationship, which an individual has with an object or resources which is enforceable against the rest of the world. (Hepburn 1 st ed CB 7) o Sounds like the words of Blackstone Yanner v Eaton Property is investigated by the High Court Facts: Argued: hunting of crocodiles amounted to an exercise of native title rights protected by Native Title Act and the Constitution o Maintained an interest through their traditional laws and customs to catch crocodiles for ceremonial purposes. Magistrate decided they had a Native Title interest and entitled to exercise it. o Hunting of crocodiles is in terms of a Native Title right (Mabo recognised). Appeal: It went on appeal. Queensland argued the Conservation Act s 7. Counter argument: Hunting rights extinguished by FCA S 7(1) of the Fauna Conservation Act 1974 (Qld): All fauna, save fauna taken or kept otherwise than in contravention of this Act, during an open season with respect to that fauna, is the property of the Crown and under the Control of the Fauna Authority. Issues: o Meaning of s 7(1) FCA and its provision that some fauna is the property of Crown Fauna: bird/mammal indigenous to Australia Property over that mammal vested in the Crown. o Did vesting of property create rights inconsistent with rights of hunters (and extinguished rights)? Property as defined in Yanner The word property is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, property does not refer to a thing; It is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of property may be illusive. Usually it is treated as a bundle of rights. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said, that the ultimate fact about property is that it does not really exist: it is a mere illusion. per Gleeson CJ (CB 13). o Gray that property doesn t exist and it is an illusion. Features of property (Yanner) False thinking that property is a thing 20
Rather a legally endorsed concentration of power over things and resources Property consists in control over access (Gray) Property relationship is not a monolithic notion of standard content and invariable intensity Comprehensive term describing all or any of different kinds of relationships between person and subject matter The fact that the term is so comprehensive presents the problem, not the answer to it Legal question and submission in Yanner 1. What interest in fauna was vested in the Crown when the Fauna Conservation Act provided that some fauna was the property of the Crown under the control of the Fauna authority? o QLD argued it is full and comprehensive ownership. It is not narrow. The reason for arguing this is because if a statute is inconsistent with Native title, it will extinguish the Native Title. If it is narrower, then it can operate side by side. 2. It was submitted that the Fauna Act gave full beneficial or absolute ownership of the fauna to the Crown 3. Submission was founded on notion that property is the widest of all terms Decision of the court in Yanner Several reasons why Crown property is not accurately described as full beneficial or absolute ownership: 1. Difficulty to identify what fauna is owned by Crown 2. Meaning of full and beneficial ownership of wild animals? Wild animals at common law: limited property rights. It is not a complete power. If you captured it, it is your ownership right, if it is escaped it is now. Property in Act cannot be equated to property of domesticated animals Ownership connotes right to have and dispose of possession (fauna outside possession and disposition) 3. Fauna Act suggests that property in fauna can not be equated with property of a domesticated animal 4. Reasons for vesting fauna in Crown: desirability to provide for some vesting to create royalty system Decision in Yanner (continued) Vesting of some form of property was desired 21
Court said that the term property does not necessarily mean full, exclusive or beneficial ownership It is vested by statute, and expressed in a legal shorthand in the fact the State has power to regulate and exploit certain resources. Property vested in FCA: aggregate of various rights of control by Executive that the legislation created: 1. Rights to limit what fauna might be taken and how it might be taken; 2. Rights to possession of fauna; and 3. Rights to receive royalty in respect of fauna that was taken The Court found that this was something less than full beneficial ownership. o Comment: State holds fauna in sense of imperium (and not in sense of dominium): guardianship of resources (Pound) It is holding it as an imperial power. They can regulate it but does not own it. Native title interest (ito s 223 Native Title Act): o Hunting in terms of the traditional customs and laws of the clan o By those laws and customs the clan had a link to land o Until passing of FCA rights/interests were recognised by common law Principle: o NT is extinguished by creation of inconsistent rights o If you have a Native title interest inconsistent with a statutory intrest it is extinguished. If it isn t, it can continue toe exist. Regulating the way in which interest may be exercised is not inconsistent with continued existence of NT Effect of FCA: establish a regime forbidding the taking or keeping of fauna except pursuant to a licence granted by Act Regulating aspects of relationship with land but: o Does not sever connection of Aboriginal people with land; and o Is not inconsistent with continued existence of NT interests. The FCA, with reference to NTA and Constitution, did not prohibit or restrict native title holder from hunting crocodiles for personal or noncommercial/communal needs Held: Thus, the FCA did not extinguish NT interests. If property was a broad concept, it would have extinguished native title interest, if it was narrow it would not have extinguished native title interest. (d) Property as object of public law/human right Property is the institution by means of which all societies regulates access to material resources or things (Sackville & Neave Australian Property law 1) USA Bill of rights example: No person shall be. deprived of property, without due process of law nor shall private property be taken for public use, without just compensation 22
(5 th Amendment of the Constitution of the USA) S 51 Cth of Australian Constitution Act 1901: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to. (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; Victoria: Property is protected by s 20 of Charter of Human Rights and Responsibilities Act, 2006 (Vic): A person must not be deprived of his or her property other than in accordance with law Preliminary findings Difficult to identify a set of core characteristics Emphasis seems to be placed upon the characteristic of excludability (making it private) Property rights are limited (numerus clausus): o Freehold estates; leasehold estates; easements; profits and mortgages o Equitable interests: beneficial ownership (trust), equitable lease; restrictive covenants and liens Public interest in property: modified by rights of other Property has become fragmented in modern world (Vide example, CB p 19-20): o Jurisdiction, subject matter, duration of time, culture, statutory. For example the owner of an estate can lease the estate to the tenant who acquires possession and enjoys the property during the currency of the lease. There may be a mortgage registered over the property, and the bank has a security interest over the property. If unpaid, the bank can sell the property. Neighbour can travel over the property if the owner grants an easement. The farm therefore has many relationships over the property. The owner and bank The owner and tenant The owner and tenant This can be seen through the bundle of rights metaphor. Property rather involves a complex bundle of relationships Range of property interests can arise over single piece of land because each is distinctive Different forms of property relationships co-exist without conflicting with others. If interests are in conflict, property law provides rules to resolve conflict: accord priority to a right. 23
o Different interests in land competing with one another, then CL falls back on priority rules in which one is given more priority over the other. Justification of property Rewards labour Protects privacy Promotes security Personal and economic incentives Promotes personal liberty (CB 35-36) It should be noted that: o Property remains a social creation: not absolute, sacrosanct and government may interfere with it o Property has led to monopolisation of scarce resources o Property rights are subjugated by public interests concerns (environmental law and resource management) Without property there would be no place for industry; because the fruit thereof is uncertain: and consequently no Culture on Earth, No Navigation, or use of the commodities that may be imported by Sea; no commodious Buildings, no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters (Thomas Hobbs) Other theories to justify property (CB 1.15-1.20) Sources of Property law Property law doctrine introduced when British Crown claimed sovereignty over Australia a little more than 200 years ago Sources: o Imported English common law (judge-made law and statute) o Equity o Enactments of local legislature and court decisions o Native title (ongoing indigenous connection to land) was recognised in the Mabo decision as a right recognised by the common law but not of the common law (new form of property right sui generis form of interest in relation to land - and a new source of Property law). o International human rights law having a bearing on property. Ex, Article 1 of the First Protocol of European Convention on Human Rights impacts on English law: Provides a guarantee of property rights State conditions for deprivation public interest + compensation Allows control of the use of property in the general interest by the States 24
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Topic 1.2: New Forms of Property Ø New forms of property Ø Virtual property Ø Resources incapable of ownership New forms of property Property is a dynamic concept Notion of property may change to meet social demands New sources are being privatised Parliament can create new forms of property In creation of new property by a court, the court must be prepared to identify the subject of property, object of property and entitlements that attach to property If new forms of property are created: o It must be identifiable; o its s cope and form must be ascertainable; o it must not impinge upon accepted moral boundaries; o there has to be a socially and economically imperative for the creation of new property Virtual property In cyber space individuals can obtain various kinds of vested interests: o domain names, o web pages, o web sites, o online databases, and o treasures and credits internet games Valuable Intangible, though virtual property is a reality Law challenged to bring new kind of resources into theoretical range of property law ( propertised ) Difficulty: o Transcends national boundaries o Thus the boundaries of property should be extended to include virtual property Resources outside of private ownership Romans distinguished between things capable of private ownership and things not capable of private ownership (res intra commercium and res extra commercium): Things outside of commerce: o Common things (res communes) common to all not capable of appropriation by any: Air, running water and sea 26
o Public things (res publicae): property of state but intended for public use: Roads, rivers and harbours o Religious things (res divini iuris) o Things not belonging to an owner at a given moment in time (res nullius) Wild game Capable of appropriation but not propertied yet Natural resources Bracton was influenced by Roman law: not all resources available are amendable to private ownership o Public possess rights to natural resources (beaches, sea, parks, air and running water (res communes) (uncontrollable); o Public trust over natural resources; o Immune from privatisation ; Public possess inviolable rights to natural resources Not regarded as property because of: Absence of excludability o An important feature in English law Hardins Tragedy of the commons? https://www.youtube.com/watch?v=4re9pmwwafc o Overuse shows erosion o If something is open to everyone and persons act in their own interest,the natural resource is overuse. Thus this lead to development of environmental law to protect the natural resources o Some natural resources are incapable of private appropriation due to moral and social principles o Principle in English law that the State is a carer/trustee of natural resources Statutory control over natural resources Basis for environmental law Some resources are thus outside the boundaries of private ownership pursuant to moral and social principles (a) Resources incapable of ownership (a) Right to a spectacle (Victoria Park Racing v Taylor) At issue was whether there is property in a spectacle. Case was based on nuisance because broadcast allegedly amounted to unlawful interference with use and enjoyment of racecourse. Latham CJ Owner entitled to look over fence of neighbour o Cannot get an injunction to stop someone looking over a fence Neighbour can prevent this by erecting fence 27
Can put up fences and structures to prevent people from attending without payment Law cannot by injunction erect a fence which owner is not prepared to erect Can place notice boards where not visible to people on outside Does not harm the owner by describing what takes place on another owner s land Expenditure of money in creating spectacle does not create quasi-property No precise meaning in phrase property in a spectacle Spectacle cannot be owned in the ordinary sense of the word only property in metaphorical sense in absence of legal principle o Cant really define a spectacle as property Rich J (dealt with nuisance) Came within application of nuisance Dixon J Unlike in the USA, there is no quasi-property (broadcasting rights) if an individual has expended effort and incurred expenses in creating something of value o Is a form of property but not the position in Australia Does not assume the exclusiveness of property because of efforts of someone to obtain value o Mere fact that you ve spent money to stat a racetrack doesn t give you the right to exclude others The right to exclude defendants from broadcasting a description of the occurrence they can see on the plaintiff s land is not given by law o If you are the owner of a racetrack and you have races on the land, you don t have the right to exclude others from passing by and looking in o Thus not a form of property Not an interest protected by law or equity Evatt J (dissenting) End result: the right to a spectacle / view is not capable of being propertized. o Ratio decidendi: it is not definable. o No tangible presence. o Parameters of the spectacle are unclear. o Exclusiveness of property is absent by creating a spectacle on your property, you cannot exclude passerby people from looking at it. If this was granted in Court, it would interfere with the normal property rights of owners of property. No general right of privacy and no unrestricted right to spy upon neighbour 28
A person who uses devices for the purposes of enabling the general public to overlook/spy can be liable in nuisance if appreciable damage, discomfort or annoyance is caused to neighbour Surrounding circumstances need to be examined Answer lies in private nuisance Held: Spectacle/view not capable of being owned o However newspapers can obtain rights to document a celebrity wedding/spectacle. o But in normal course of events, you are able to look across to your neighbours property. Ratio: o No tangible presence o Parameters/boundaries of a spectacle are unclear o Absence of exclusiveness of property To allow right to exclude the whole world from spectacle or view may impede rights of neighbouring owners Other rights are used to control access to a spectacle (b) Resources incapable of ownership (b) Moral boundaries: Ownership of human life impossible Individual owner of own body parts Human corpse intended for burial/cremation not treated as property; executor has custody to deal with body according to law Regenerative parts (blood) may be transferred in ownership to third party who can claim ownership Non-regenerative parts (vital organ) not transferable unless donated during/after death Regulations regarding donor donations Human parts or tissue may be needed for medical research (CB 62) Moore v Regents of University California Issue: can human tissues that were removed from patient and used for medical research be reclaimed in ownership by patient (from owner of patented cell-line)? Moore claimed he owned cells and unauthorised use thereof gave him right to sue for conversion Court found this was not the case, when the cells weer removed from him then Moore did not have an interest in the cells. o Something new was created from the excised cells. Held that ownership of cells was not established: o Did not retain a sufficient interest in excised cells; 29
o California legislation limits control over excised cells; o Cell line and products derived from it cannot be Moore s property because it is factually and legally distinct from original cells Held that excised cells are not like chattels to support action for conversion: o Policy consideration not to extend tort of conversion; o Tort of conversion is not necessary to protect patient s interest; o Problems in this area should be resolved by legislation. Uni C had property rights over cell-line (patents) Moore v Regents Uni California Policy Arguments Patient cannot claim tissues back because societal policy arguments favouring medical treatment outweigh the importance of individual proprietary considerations. o Medical research is more important than personal interest in cells (Efficiency argument prevailed) Extension of personal property rights to interfere with medical research would be socially unacceptable and unjustified Individual rights are protected by doctrine of fiduciary duty and informed consent o Informed as to which procedures are to happen and you must consent, which didn t happen here. On this basis the patient would be successful. Broussard J (dissenting): difficulty with majority s reasoning on conversion if cell is stolen by thief in laboratory, Uni C would be able to maintain an action in conversion (Dual issue of ownership of property in body and its products and unethical nature of practice of non-disclosure) Note: cause of action was recognised for breach of fiduciary duty or failure to obtain consent Human Tissues Act 1982 (Vic) Ownership over human tissue dealt by Aust statutes Ss 38-39 prohibit buying and selling of human tissues: a person shall not sell, or agree to sell tissue (including his own tissue) or the right to take tissue from his body (s 38(1))... a person shall not buy, agree to buy, offer to buy, hold himself out as being willing to buy, or inquire whether a person is willing to sell to the person or another person - (a) tissue; or (b) the right to take tissue from the body of another person (s 39(1)). Unlikely that claim for conversion (as attempted in Moore) would succeed or arise in Australian jurisdiction. 30
(c) Resources incapable of ownership (c) Common heritage of mankind Natural resources of high seas o Area is open to everybody Outer space o Notion of common heritage of mankind Old roman ideas that you cannot endorse private ownership that will lead to conflict reference to UN Outer space treaty o Endorsing private ownership will lead to conflict o UN Outer space treaty Space is province of all mankind No sovereignty claims by states Property rights contrary to common heritage Property rights have been asserted Moon Treaty o Regulating control and ownership of moon o Division of lunar resources o Res communes concept Belongs to everyone and it cannot be appropriated o (Strangely) Private ownership not expressly prohibited Extra-terrestrial real estate? Company selling areas of the moon? 31