Proprietary Interests
Property v Contract
• Property enforceable against the whole world (except the true owner).
• Contract enforceable by and against parties to the contract.
Estates
• Fee simple
! Someone owning property.
! The highest property right an individual can have in Australia.
! The crown still actually ‘owns’ the property and may take it away from
the fee simple owner.
• Fee tail
! Life estate, limited to specific members of family.
! Passes on to the next heir prescribed in the tail at the death of the
tenant in tail.
! Can still be crated in South Australia under The Estates Tail Act 1881
(SA) and in Tasmania. Fee tails created in other states will
automatically become fee simple estates.
• Absolute estate
! Granted without condition or termination (fee simple).
• Conditional estate
! Only enacted upon the performance of a specific condition.
• Contingent estate
! Will only pass when a specific event occurs (e.g. a birthday).
• Determinable estate
! Will be terminated on the occurrence of a specific event.
Lease
• A right to exclusive possession of land given by a lessor or landlord to a lessee
or tenant, typically in exchange for rent.
Easement
• A right enjoyed by one person, on the land of another person, which interferes
with the normal rights of the owner or occupier.
• Must have four properties to be legally enforceable:
! Dominant tenement, which practically benefits from the easement.
! Servient tenement, which is subject to the easement.
! Different people own the dominant and servient tenements.
! Must be of a type recognized by law.
Profit
• A right to take something off of another persons land or out of the soil.
Mortgage
• A lender’s interest in real or personal property, secured over the property of
the borrower.
Licence
• A permit to occupy land under specific circumstances.
• May or may not included payment.
• Does not give exclusive possession.
• Bare licence
! Verbal and may be revoked at will.
! Not binding on third parties.
• Contractual licence
! A licence coupled with a grant or contract.
! Probably irrevocable.
! Probably not binding on third parties.
! Only remedy for breach is damages.
! Cowell v Rosehill Racecourse REMEDIES
o Cowell paid to enter the racecourse but was later forcibly
ejected due to suspected illegal betting. Cowell sued for
damages for assault.
o Did Cowell have a contractual licence (only remedy would be
admittance fee) or a proprietary right in the land (may recover
further damages)?
o Cowell only had a contractual licence and his damages were
thus limited to the admittance fee.
• License coupled with a proprietary interest
! Irrevocable and binding on third parties.
! Heidke v Sydney City Council REMEDIES
o Heidke hired council grounds for the Youth Carnival for Peace
and Friendship. Council specified payment might be given in
advance and if the grounds were then unfit for use the money
would be refunded. Council later attempt to revoke the licence.
o Council found that the licence was irrevocable as it was
coupled with a proprietary interest. Heidke was granted an
injunction enabling the oval to be used.
Victoria Park Racing v Taylor
• Neighbor built elevated platform to view the horse racing from his yard and
broadcast it.
• Can be no property right in a spectacle.
• Courts will not erect fences you are unwilling to erect yourself.
R v McKay
• McKay shot Wicks with a small gun (unlikely to cause death) when Wicks
trespassed on McKay’s property. Wicks died.
• Property owners are, under some circumstances, able to take extraordinary
measures to protect their property.
Jaggard v Sawyer REMEDIES
• S rented out a house behind private cul-de-sac, however the only way to
access it was through J’s property.
• J argued for an injunction to prevent access to the house through her yard,
which would typically have been given, as it was a continued invasion of her
property rights to allow access.
The court instead granted damages as J’s injury was small, the injury could be
estimated in money, the injury could be compensated by money and it would be
oppressive to the house renter to grant an injunction
Fixtures and Fittings
Fixtures
• Part of the property.
• If the item is affixed it is presumed to be a fixture, the onus of proof is on the
person alleging that it is not a fixture.
Fittings
• Not part of the property (chattel).
• If the item is freestanding it is presumed to be a chattel and the onus of proof
is on the person alleging it is a fixture.
Fixture or fitting tests:
• Degree of annexation is determined by:
! Whether removal would cause damage to the property;
! The mode and structure of annexation;
! Whether removal would destroy or damage the item; and
! Whether the cost of removal would exceed the value of the item.
• Object of annexation is identified by:
! Whether attachment is for better enjoyment of the property;
! The nature of the property;
! Whether the item was intended to be permanent or temporary; and
! The function served by the annexation of the item.
• Intention of the parties.
• Palumberi v Palumberi
! Dispute over free standing venetian blinds; curtains; built in cabinet
(not screwed in); TV antenna attached by U brackets; carpets; outside
spotlight; light fittings; free standing stove; and a portable heater.
! Court held that you must focus on the individual circumstances of each
case.
! Chattels: cabinet, as it was free standing, TV antenna and blinds as
they were only slightly attached and for better enjoyment of the
property
! Fixtures: stove and carpet as they were essential.
• Concept Projects v McKay (NZ)
! Court allowed the tenant to remove fixtures, within a reasonable time,
as they remained in possession under a genuine colour of right to
remain there as a tenant.
! Only fixtures that relate to trade, or are ornamental/domestic in their
character may be removed.
Chattels
Possession
• Effective physical or manual control or occupation.
• Possession of chattels is important in proving ownership.
• Nemo dat
! A person cannot give away better title than what they have.
! Exceptions:
o Market overt;
o Sale mercantile agent;
o Seller in possession;
o Buyer in possession; and
o Buyer with voidable title.
• Characteristics of possession:
! Factum, in fact having possession of an object.
o Acts of control have been taken to exclude others.
o Consider the amount of control or dominion that is practical or
possible in the context.
! Animus possidendi, the mental intent to have possession of the object.
• Young v Hitchens (use as reference but focus on Bremner v Bleakley)
! Young had spread his fishing net around a lot of fist but had not
completely closed the net. Hitchens then went through the gap in the
net and captured the fish in his own net.
! Although Hitchens may have acted unconscionably, Young did not
satisfy the factum requirement of possession, as he did not have
actual control over the fish. Hitchens, as the first to demonstrate
control over the fish was thus the one with the grater proprietary right.
• The Tubantia
! The plaintiff had begun salvaging anything of value from the sunken
Tubantia. They had been unable to re-float the ship but were removing
items as weather permitted and placed a buoy where the ship was. The
defendants then attempted to salvage some of the ship.
! The plaintiff’s had the greater possessory title as they had done all
that was reasonable possible to gain possession of the ship. They
thus satisfied the factum and animus possidendi elements of
possession. Decision also influenced by public policy, to encourage
salvaging.
• Bremner v Bleakley
! The parties owned neighboring beachfront properties. Bremner dug
holes in his land to trap the sand that blew over from Bleakley’s land,
thus preventing the land from blowing back. Bremner then sold the
sand. Bleakley obtain an injunction to prevent Bremner from trapping
the sand but this was appealed.