property law

Question 1

what is property?

Answer 1

it can be:
1. object or thing capable of being owned by a person; or
2. proprietary rights (rights of ownership) to that object or thing

e.g. land and a car are objects that are capable of being owned -> the proprietary rights to the land and car will be vested in a particular person or persons, e.g. accordingly, it can be said that the land and car are property, and that the property (i.e. rights of ownership) in the land and the car is vested in

Question 2

real and personal property

Answer 2

real property:
- land, and all things embedded in the land or attached to it such as minerals, trees and buildings
- all interests in land are real except for leases

personal property:
- all property that is not real property
- includes tangible things (chattels) and property of an intangible nature
- e.g. intellectual property rights, debts and shares

Question 3

personal property

Answer 3

can be divided into two categories:
- chose in action
- chose in possession

chose is a french word for thing

Question 4

personal property

chose in action

Answer 4

• intangible property interests: interests that cannot be seen, held or touched
• right of property that can only be claimed or enforced by the taking of legal action (not by taking physical possession)

e.g:
- right to sue
- shares in a company
- intellectual property

Question 4

personal property

chose in possession

Answer 4

• tangible physical property
• something that can be possessed

e.g:
- ownership of a house
- ownership of a car
- ownership of jewellery, artworks, stamp collections or other collectible items etc

Question 5

rights of a person in possession

Answer 5

possession is good against the whole world except the owner

Question 6

ownership v possession

Answer 6

a person in possession of an object has legal rights even where that person is not the owner

possession confers a right to retain control of an object against any other person except the person with ownership rights

e.g. a chimney sweep’s boy found a jewel and offerered it to a jeweller for sale. the jeweller refused to pay an acceptable price or return it
- held: the jeweller was liable to the boy for the value of the jewel
- ‘the’ finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yes he has such a property as will enable him to keep it against all but the rightful owner

bailment: when the party of ownership still has ownership over the property but is sharing possession over a certain period of time

3.220

armory v delamirie 1722

Question 7

the finding cases

Answer 7

the principles applied vary according to whether the articles are found:
- in the land;
- attached to land; or
- on land

Question 8

the finding cases

articles found in or attached to land

Answer 8

as between the owner or possessor of the land and the finder of the article, the owner or possessor of land has the better title

e.g. the plaintiff leased land to the defendents for 99 years -> while excavating foundations for a gasholder, the defendants found a prehistoric boat 6 feet below the surface
- the lessor claimed the boat
- it was held that the lessor was entitled to the boat; he had lawful possession good against the world

3.230

elwes v brigg gas co 1886

Question 9

the finding cases

articles found on land

Answer 9

the owner or possessor of the land has a better title only if c/he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it

e.g. an an aircraft passenger found a gold bracelet on the floor of the executive louge at heathrow airport -> he handed the bracelet to an employee of the airways board (liscense of the premises) -> the owner of the bracelet was never found -> the finder sued the board for the value of the bracelet
- held: there was no evidence that the board had manifested an intention to exercise control over all things that might be upon or in the premises
- e.g. by searching for lost items on a regular basis
- therefore, the finder had better right to possession

3.240

parker v british airways board 1982

Question 10

the finding cases

articles found in the course of employment

Answer 10

general principle: articles belong to the employer, where the employment is not the cause of the finding but merely incidental to it, it has been held that the employee is entitled to the goods

e.g. a queensland policeman was performing special duty at the drive-in when he found a small ingot of gold
- held: in finding the ingot, he was in the same position as any casual passer-by
- the performance of his duties was not the real or effective cause of the finding
- accordingly, he was entitled to the ingot against the world - except the true owner who could not be found

3.250

byrne v hoare 1965

Question 11

real property

Answer 11

land generally included not only the surface of the land but also things attached to it, substances below the surface, and the airspace above

Question 12

definition of land

Answer 12

limits of land: height and depth
ownership extends upwards to the heavens and downwards to the centre of the earth (but there are some exceptions) -> the crown (state) owns minerals in soil

Question 13

fixtures

Answer 13

general principles: refers to anything which has become so attached to the land as to form in law, part of the land
- e.g. buildings and fences -> however difficult questions arise whether a chattel has become a fixture
- a chattel is a non-fixture

3.450 & 4.40

australian provincial assuarance co ltd v coronco per jordan cj
national australia bank v blacker per conti j
pan australian credits (sa) pty ltd
wellsmore v ratford
nation daries wa ltd v commissioner of state revenue

Question 14

interests in land

Answer 14

estates in land

co-ownership of land
- joint tenacies
- tenants in common

what is “good title”

old systems and torrens title

legal and equitable interests in land

4.50

Question 15

interests in land

estates in land

Answer 15

estates in land are classified as either:
- freehold estates; or
- leasehold estates

Question 16

estates in land

freehold estates and leasehold estates

interests in land

Answer 16

freehold estates are of uncertain duration: there are two main types of freehold estates:
- the estates in fee simple (absolute form of ownership on holder and indefinitely to whoever they select to assign the land to subsequently); and
- the life estate (gratned to person for duration of his/her life or for the life of some other identified person)

leasehold estates are of certain duration

4.60

Question 17

interests in land

types of ownership of land

Answer 17

co-owners of land own the land either as:
- joint tenants, or
- tenants in common

Question 18

types of ownership of land

joint tenancy

interests in land

Answer 18

doctrine of survivorship
- “right of survivorship”
- when one party dies, the other automatically gets their interest

Question 19

title to real property

Answer 19

there are two systems of title to real property in australia:
- old system title
- torrens title

Question 19

types of ownership of land

tenancy in common

interests in land

Answer 19

no doctrine of survivorship
- when a tenant in ommon dies, s/he can leave their sahre to someone else
- a tenant in common can ell their share to outsider

Question 20

title to real property

real property - old system title

Answer 20

ownership is proved by tracing ownership back to an unhallengeable beginning

chain of title, making a ‘good root of title’
- tracing of title required each time owners wanted to deal with their property
- documents - “deeds of converyance” - traace the “chain of title” to the land by reference to the various owners of the land
- to establish the title of the present owner, a potential purchaser of the land must trace the owner’s title back over a period of years
- difficult, time consuming and complex procedure
- now applied to only very few parcels of land in australia that are not registered under the torrens system

Question 21

title to real property

real property - torrens title

Answer 21

torrens title is a system of registered title
- it is based upon a document of certification - the certificate of title - issues by the state in duplicate

torrens title
registration gives title (ownership) of the land to the ‘registered proprietor’ (owner)
- title held under a registered interst is indefeasible
- those holding other types of interest over the land can also register their interests on title (e.g. mortgages, leases)
- legal interest

effect of registration
- removes uncertainties of title
- provides proof of title of the registered proprietor so no other person can claim to be the ‘owner’
- gives priority upon registration (indefeasibility prinicple)

exceptions to indefeasibility of title
- statutory fraud
- unconscionable conduct
- constructive trust - where registered owner holds the land subject to rights of beneficiaries

frazer v walker (new zealand case)

Question 21

caveats

Answer 21

a written warning or an entry amde in the register to stop certain land dealings without notice being given to the person who lodged it
- it is like an injunction and shows that someone else has a recognised interest in the land and protects equitable interests
- e.g. a person who claims an equitable interest in the land (such as a purchaser) may lodge a caveat forbidding the registration of any new dealings (such as a purchaser trying to stop the vendor from selling the property to someone else)

Question 22

convenants and easements

Answer 22

- covenants are essentially promises that can bind future purchasers of land and/or future tenants - they are generally restrictive in nature and sometimes are referred to as restrictive covenants - they can be express or implied by statute - some can be excluded while others can apply only where the parties have not otherwise agreed - **e.g** can include: -> covenant to repair, to yield up possession to the landlord at the end of a lease - easements are special provisions which allow property owners the right to use the land of another property owner for a specific purpose - **e.g.** of an easement is a right of way which allows a property owner(s) the right of access over someone else’s property that would otherwise amount to trespass

Question 23

leases

Answer 23

- a lease is the grant of a proprietary right to the exclusive possession of land for a fixed or determinate term - the grant is usually made in consideration of rent

Question 24

# leases classification of leases

Answer 24

**fixed term leases:** automatically end at the end of the specified period **periodic tenancies:** tenancy period is repreated on a cyclic basis and continues until a valid notic is given to terminate the tenancy **tenancies at will:** where land is occupied with the consent of the lessor on the basis that either party may end the tenancy at any time **tenancies at sufferance:** when a tenant remain in possession with the consent of the landlord after a lease has expired (not a true lease)

Question 25

# leases terms of a lease

Answer 25

the rights and obligations which a landlord and tenant undertake are usually expressly stated in the lease document **convenant** is used to describe any obligation in the lease and can be implied by the common law the following are implied convenants binding the landlord: - covenant of **quiet possession** - convenant **not to derogate from grant** - conventnat that, in a furnished residence, the premises are **reasonably fir for habituation** at the commencement of the lease

Question 26

covenants implied by statute

Answer 26

the following are implied convenants of statute binding the tenant: - convenant to pay the rent reserved by the lease - covenant by the tenant to repair - covenant to allow the landlord to enter and view the leased premises for the purpose of inspection - covenant to yield up possession to the landlord at the end of the lease ## Footnote transfer of land act 1958

Question 27

termination of leases

Answer 27

leases and tenancies can be ended by a number of processes depending on the type of lease: - **surrendere:** the tenant gives up the tenant's estate to the landlord and when the landlord accepts, the tenant's leasehold in extinguished: e.g. where the landlord, with the original tenant's agreement, enters into a new lease with a third party then the original tenancy is surrendered - **forfeiture:** the early/non-consensual termination of the lease by the landlord because of some wrongful act or breach of convenant

Question 28

residential tenancies

Answer 28

special legislation to protect tenants of residential properties has been enacted in all australian jurisdiction generally, this legislation provides detailed regulation for most matters involving residedntial tenancies and includes detailed dispute resolution procedures ## Footnote residential tenancies act 1997

Question 29

commercial/retail leases

Answer 29

these leases involved the sale, hire, supply of goods or services all australian states and the nt have legislated to protect retail tenants in commercial leases in shopping centres generally the legislation provides for **mandatory minimum standards** to apply to retail shop leases the regulation of retail leases by legislation and by agreement between the landlord and tenant and includes: - the payment of rent by the tenant - the payment of outgoings by the tenant - any compensation which is due and payable by either the tenant or landlord - disputes & mediation between the landlord and tenant - variations to the lease including covid-19 variations ## Footnote retail leases act 2003

Question 30

native title

Answer 30

commonwealth government’s legislative response to the high court’s decision was to enact the native title act 1993 - the act gave statutory effect to much of the decision in mabo and provided a framework in which native title could operate - the case law recognises native title and the native title act 1993 provides a process for applying for a determination as to whether native title exists **native title cannot exist over freehold land (torrens title)** ## Footnote mabo v state of queensland (2) (1992) 175 clr 1 - (mabo) recognised that acquisition of sovereignty by the crown was subject to the “interests and rights of indigenous inhabitants in land …”

Question 31

# quix check what is the primary purpose of of lodging a caveat on a certificate of title?

Answer 31

to provide a written warning and prevent certain dealings without notice to the caveator - a caveat acts like an injunction, providing notice of someone's interest in the property and preventing dealings such as sales without notifying the person who lodged the caveat

Question 32

# quiz check jasmine owns a software development company and has created a new mobile app. which category of property does her copyright in the app represent?

Answer 32

chose in action - copyright is an intellectual property right that is intangible and cannot be physically possessed - it can only be enforced through legal action, making it a chose in action

Question 33

marcus finds a vintage watch in a public park. even though he's not the owner, he has better rights to the watch than anyone else except the true owner

Answer 33

true - the principle from armory v delamirie establishes that a finder has possessory rights good against the whole world except the true owner - marcus would have the best claim to the watch unless the rightful owner appears

Question 34

# quiz check what is the primary difference between general law title and torrens title in australia?

Answer 34

general law title requires tracing an unbroken chain of ownership, whilst torrens title provides certainty through registration - general law title requires proving ownership through a continuous chain of title documents, making it complex and time-consuming, whilst torrens title provides certainty

Question 35

# quiz check a commercial security system permanently wired into a building automatically becomes a fixture and forms part of the land

Answer 35

true - items that become "so attached to the land as to form in law part of the land" are fixtures - permanently installed security systems typically qualify as fixtures due to their attachment and integration with the building structure, which has important implications for commercial property sales and insurance

Question 36

# quiz check according to the mabo decision and native title act 1993, over which type of land can native title not exist?

Answer 36

freehold land - the high court in mabo specifically ruled that native title cannot exist over freehold land (or torrens title land), as these grants extinguish any pre-existing native title rights

Question 37

# quiz check what is the key difference between property rights and contractual rights?

Answer 37

property rights are enforceable against the whole world at large, whilst contractual rights are generally only enforceable between the parties to the contract - this is the fundamental distinction that underpins much of commercial property law - roperty rights create "real" rights that bind everyone, whilst contractual rights are "personal" rights limited by the privity doctrine

Question 38

# quiz check kenji and fatima own a commercial property as joint tenants. kenji dies unexpectedly. what happens to his interest in the property?

Answer 38

fatima automatically becomes the sole owner through right of survivorship - joint tenancy includes the right of survivorship, meaning fatima automatically becomes the sole owner - this automatic transfer is crucial in commercial partnerships and explains why many business partners choose joint tenancy for shared commercial properties