Property Law Summary Notes

37 Pages • Complete Study Notes • Year: Pre-2021

Nature of property ϖ Legal property right is a relationship between the rightholder and land (a right in rem). ¬ Attributes: ♣ Exclusive use; ♣ Assignability; ♣ Capacity to bind the whole world without more. ¬ Victoria Park Racing v Taylor: Dealings can only be property rights at law if they meet the definitions of rights recognised at law. ¬ S 28(1) LPA: No interest exists at law, unless it is granted or conveyed by deed. ¬ S 30(2) LPA: Short leases for 3 years or less may create legal rights by parol evidence. ϖ Equitable property right is a relationship between a landowner & the rightholder that has a proprietary effect (a right in personam). ¬ S 29(1)(c) LP Act: Equitable rights are assignable in writing. ϖ Licences are dealings that do not meet the definitions of property rights recognised at law and in equity (a mere personal right). ¬ McPhail v Persons Unknown: Bare licences are revokable by will of the licensor, upon which the licensee becomes a trespasser & may be removed from the land using reasonable force. ¬ Cowell v Rosehill Racecourse: Contractual licences are revokable by will of the landholder regardless of the contract’s terms. ♣ Can remove licensee from the land using reasonable force + damages. ϖ Victoria Park Racing v Taylor ¬ There is no right not to be overlooked. ¬ Can’t exclude strangers from knowledge of the races + races are too ephemeral A spectacle is not property. ϖ “Conveyance” = transfer of a legal right by deed. ϖ “Grant” = creation of a lesser right by deed. possession Possession of a chattel Possession means: 1) physical custody of an object; 2) with an intention to keep it (animus possidendi). Whether there is possession depends on the subject matter or the nature of the object. ϖ Young v Hitchens ¬ *1st trawler enveloped fish with netting. ¬ *2nd trawler interfered with the catching, and took the fish with its own net. ¬ There is possession of wild fish only when they are on the ship 1st trawler did not have possession of the fish. ϖ The Tubantia: If one does all that is reasonable to obtain possession, he will have possession. ¬ *A ship sank in the North Sea & was written off by the owner. ¬ *1st salvage company spent time and money to locate the wreck and send divers down. ¬ *Due to the hostile environment, it could only work 25 days a year, and only 3.5 hours on each of those days. ¬ *2nd salvage company interfered with the salvage and took goods off the wreck. ¬ The more accessible the object is (ie. the more physical contact that is possible), the more the court will require for there to be possession of the object. ¬ Difficult to possess things in deep water that can only be accessed for short periods of time less is required of the 1st salvage company for possession of the vessel & her cargo at law. ¬ There was animus possidendi in the 1st company + there was use and occupation of which the subject matter was capable + the 1st company had power to exclude strangers from interfering without using unlawful force 1st company had possession of the ship & her cargo. ϖ Bremner v Bleakley: A landowner is entitled to all natural advantages belonging to that land, & therefore to all things which in the course of nature are deposited on it. ¬ *D dug holes in his land. ¬ *Sand carried off P’s land by wind was trapped in the holes, and so could not be blown back. ¬ The excavation did not produce the original movement; rather, the sand was cast on D’s land by the forces of nature the trapped sand became D’s property no trespass.

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