LAW2112 Property Law Exam Notes

1 Found helpful • 68 Pages • Complete Study Notes • Year: Pre-2021

What is property? “At its widest property means any right that can be transferred from one person to another” Rights in rem: Can be identified as relating to and depending upon a particular thing Usually include: • the right to use and enjoy • the right to exclude others • the right to transfer • the right to possess • the right to destroy Rights in personam: personal right attached to a specific person, such as: - contract rights - A tort award against a defendant, or a license. Rem rights are property rights enforceable against the world at large whereas personam rights binds only the litigants – has a right to sue to bring performance of an obligation Yanner v Eaton [1999] HCA 53: ‘The word “property” is often used to refer to something that belongs to another. In reference to s7(1) of the Fauna Conservation Act 1974 (QLD): Justice Gleeson, Gaudron, Kirby and Hayne found in Yanner v Eaton : “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. Moore v Regents of University of California (1990): “the concept of property is often said to refer to a ‘bundle of rights’ that may be exercised with respect to that object Classification of property ‘real property’ refers generally to land (with the exception of leases) ‘personal property’ refers to ‘chattels’, that is property which is not land, including objects and other property such as shares and choses in action. personal property is divided between chattels real (leasehold interests) and chattels personal (all other personal property). The relationship between property and contract A person with a contractual right only generally has the right to enforce the contract against the other contracting party and not against third parties. - King v David Allen & Sons Billposting Ltd - Despite the situation being beyond his control, the licensor is in breach of his obligation to the licensee. He must thus be made responsible. - The agreement (between the licensor and licensee) did not give the licensee an interest in land (in rem) which would be enforceable against anyone (like the other company), but merely created a personal obligation on the part of the licensor to allow the licensees the use of the wall for advertisements. The rights can only be enforced against the licensor. - As the licensor was now unable to fulfill his obligation under the agreement, he was liable in damages for breach of contract. - Cowell v Rosehill Racecourse Co Ltd - The Court held that the licence was a mere permission to enter. The contract gave the Plaintiff a right to remain as long as he behaved. When he misbehaved and refused to leave, his licence was revoked and he became a trespasser. The racecourse operator had the right to evict him. In the circumstances, as no more force than necessary was used, no action for damages would succeed. Distinguish different kind of licences: • Bare licence (permission) • Contractual licence • Licence coupled with a proprietary interest What is possession The Tubantia (1924) Possession requires that a person have sufficient control over the object. Control is subject to the particular context and type of property: decision→ Physically demarcating the area under which a wreck is found, accessing the wreck and sending in an exploration team constitutes sufficient possession in the case of a sunken shipwreck Qst: - What are the kinds of physical control and use of which the things in question were practically capable? - Could physical control be applied to the res as a whole? - Was there a complete taking? - Could the Plaintiffs exclude strangers from interfering with the property? - Was there animus possidendi “A thing taken by a person of his own motion and for himself, and subject in his hands, or under this control, to the uses of which it is capable, in in that person’s possession.” What is better title Examples of persons with better title include: - If it is real property (land) then persons who have the documentary title to property such as the owner with the certificate of title. - If it is personal property (chattels) then the person who can prove / establish ownership through other evidence. The finders keepers rule The finders keepers rule is the general rule that prior possession is a better right to a chattel, unless a person with a better claim, for example, the owner, comes along. When two rights to possession are in competition, the earlier possessory right is the better right. This is illustrated in the chimney sweep case. - Armory v Delamirie (1722) 1 Strange 505 Decision – A finder of a chattel does not acquire an absolute property right, however he does have title superior to everyone except the rightful owner. Acquiring title to land by possession - Possession can provide the basis for asserting and enforcing title to land or good Asher and Whitlock (1865) - Facts: Williamson, a squatter on the unregistered land of a Lord, built a cottage which housed himself, his wife (widowed) and their daughter - Williamson died, leaving the land upon which the cottage was built to his widow until she remarried, then his daughter - His widow remarried, but his daughter did not take possession - The re-married wife and daughter died at a similar time - Both the daughter’s descendant and the the wife’s husband claimed possession of the land - decision: As the daughter’s descendant’s title originated before that of the wife’s husband (on the death of Williamson as opposed to the start of the new husband’s occupation), the descendant’s title took priority Remedies - The law provides for remedies in tort for interference with possession of land or goods. The principal actions for wrongful interference with goods are trespass, detinue and conversion. - Principal actions for wrongful interference with real property include trespass, nuisance, claim for possession of land (ejectment). - Note also Limitation of Actions Act 1958. Possession of goods – Finders keepers? Dealing with possession through loss not abandonment. Armory v Delamirie Facts: A chimneysweep found a ring and brought it to a goldsmith for examination. An employee of the goldsmith removed the jewel and told the master it was worth 3 pence. The master offered the money to the chimneysweep who refused and insisted on having the jewel returned. The chimneysweep got the ring but not the jewel. He sued in trover (conversion) against the master. Held: The finder has such property to enable him to keep the property against all but the rightful owner and may maintain the trover. Possession of goods – Finders keepers? Parker v British Airways Board (1982) Facts: Parker was at Heathrow Airport. Found gold bracelet on the floor&it in to the British Airways Board as lessees of the lounge from British Airports Authority. The BAB sold the bracelet when no one claimed it for 850 pounds. Parker found out what had happened and sued the BAB and was awarded damages. BAB appealed. Ps argument: He was the finder and therefore had better possession than the BAB. Ds argument: They were the occupier of the land and as such they have better title. Decision: In order for a person to assert a recovery claim, that person must demonstrate manifest control. The claim is finders (Parker), not recovery (BA). BA was not excluding everyone from the lounge, only some people. For recovery to exist, there would need more control. Torrens system - Registration of title is conclusive of property ownership (this is subject to indefeasibility exceptions – Doctrine of Accretion - Discrepancy in Boundaries). - Also able to sue the Registrar. - Introduced by Sir Robert Torrens in South Australia. - Generally review the Transfer Land Act 1958 (Vic). In particular Part I, which creates the Office or Registrar of Titles and Part III, sections 27, 27A, 27B and 27C Mortgages Securities Beconwood Securities Pty Ltd v ANZ Banking Group Ltd [2008] = four forms of security: – A pledge – Lien – Charge – Mortgage

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