MLL327 PROPERTY LAW EXAM NOTES
THE CONCEPT OF PROPERTY
UNDERSTANDING THE CONCEPT OF PROPERTY
THE JUSTIFICATION OF PRIVATE PROPERTY
CLASSIFICATION OF PROPERTY INTERESTS
REAL PROPERTY
PERSONAL PROPERTY
DISTINCTION BETWEEN PROPRIETARY AND CONTRACTUAL RIGHTS
NEW FORMS OF PROPRIETARY INTERESTS
PERSONAL PROPERTY
THE NATURE OF PERSONAL PROPERTY
POSSESSORY TITLE
JUS TERII DEFENCE
ACTIONS AND REMEDIES FOR PERSONAL PROPERTY
ADVERSE POSSESSION
TEMPLATE FOR ADVERSE POSSESSION
THE NATURE OF ADVERSE POSSESSION
THE MEANING OF ADVERSE POSSESSION
STATUTORY PROVISIONS
ADVERSE POSSESSION AND THE TORRRENS SYSTEM
FIXTURES
FIXTURES TEMPLATE
1. DEGREE OF ANNEXATION
2. OBJECT OF ANNEXATION
3. INTENTION
RELEVANT CIRCUMSTANCES
HIRE PURCHASE AND SECURITIES CONTRACTS
SPECIAL RIGHT OF REMOVAL OF TENANTS
THE DOCTRINE OF TENURE
THE MEANING OF RADICAL TITLE
THE DOCTRINE OF TENURE
NATIVE TITLE IN AUSTRALIA
PRE MABO
MABO V STATE OF QUEENSLAND (1992) (NO 2)
NATIVE TITLE LEGISLATION
WIK PEOPLE V STATE OF QUEENSLAND AND OTHERS (1996)
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THE DOCTRINE OF ESTATES
FREEHOLD ESTATES
FEE SIMPLE
FEE TAIL
FEE ESTATE
FUTURE INTERESTS AND ESTATES
NON-FREEHOLD ESTATES
THE CREATION AND ENFORCEMENT OF FREEHOLD ESTATES
FEE SIMPLE
FEE TAIL
FEE ESTATE
STATUTORY RECQUIREMENTS
NEMO DAT RULE
VESTED CONTINGENT INTERESTS
LEGAL REMAINDER RULES
THE RULE AGAINST PERPETUITIES
THE MODERN COMMON LAW RULE AGAINST PERPETUITIES
LEGISLATIVE MODIFICATION TO THE RULE AGAINST PERPETUITIES
CLASS GIFTS
CONSEQUENCES OF INFRINGING THE RULE AGAINST PERPETUITIES
DIAGRAM
LEASES
TEMPLATE
THE NATURE OF LEASE INTERESTS
DIFFERENT FORMS OF LEASES
DISTINCTION BETWEEN LEASE AND LICENSE
DISTINCTION BETWEEN SUBLEASE AND ASSIGNMENT
REQUIRMENTS FOR A VALID LEASE
THE RIGHTS OF LANDLORDS AND TENANTS
USUAL EXPRESS TERMS
IMPLIED TERMS IN LAW
IMPLIED STATUTORY TERMS
REMEDIES
RETAIL LEASES LEGISLATION
RESIDENTIAL TENANCES LEGISLATION
TRUSTS
TEMPLATE FOR TRUSTS
TYPES OF EQUITABLE TRUSTS
EXPRESS TRUSTS
NON-EXPRESS TRUSTS
PART PERFORMANCE
CONTRACTS FOR SALE OF LAND
EQUITABLE LEASES
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MERE EQUITIES
EQUITY OF ACQUIESCENCE / PROPRIETARY ESTOPPEL
EQUIT OF RECTIFICATION
EASEMENTS
EASEMENTS TEMPLATE
EASEMENTS DISTINCT FROM OTHER SIMILAR RIGHTS
RECQUIREMENTS FOR A VALID EASEMENT
CREATING EASEMENTS
ALTERATION AND EXTINGUISHMENT
REMEDIES
COVENANTS
COVENANTS TEMPLATE
BURDEN OF THE COVENANT
ANNEXATION OF COVENANTS
ASSIGNMENT OF A COVENANT
RESTRICTIVE COVENANTS AND THE TORRENS SYSTEM
EXTINGUISHMENT AND MODIFICATION OF COVENANTS
REMEDIES
DOCTRINE OF BUILDING SCHEMES
MORTGAGES
MORTGAGE TEMPLATE
WHAT IS A MORTGAGE?
EQUITABLE MORTGAGES
RIGHTS OF A MORTGAGOR
RIGHTS OF MORTGAGEE
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THE CONCEPT OF PROPERTY
Understanding the concept of property
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The right to control property etc. is known as an in rem right because it is enforceable against the
rest of the world
Private property rights are only enforceable if the legal system recognises the rights of proprietors
and possessors (and those with other rights to property)
Not everything can be owned, often for moral and legal reasons, e.g. a parent does not own their
child, no right to watch a movie, no right to produce children
The justification of private property
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All philosophies have a different rationale for the existence of private property rights
Occupational rights
• Occupational rights is the notion that an occupant of property who acquires proprietary by discovering
and occupying it should be entitled to exert proprietary rights
• A person in possession should have the right to possess until someone with better title
• Rationale
o The occupant or possessor may have expended money on the property, exercised control
and maintenance of the property, and these rights shouldn’t be interfered with without good
cause
o Possession and occupation should be protected to encourage security and certainty and to
reduce the inevitable conflict that was ensue from unprotected occupation
• Criticisms
o It is rare for people to discover land nowadays, it is usually bought through the accumulation
of wealth
o The mere fact that someone has discovered land doesn’t mean they have the right to
possess it
o This rewards finding and not those who work for their land
The labour reward
• People are entitled to the fruits of their labour
• If someone has worked to produce or earn something, they should be rewarded for this
• This could also be said to promote productivity – as it provides an incentive for work
• Criticisms
o Marxists would argue that in a capitalist society, the link between product and labour no
longer exists
o In many instances, reward is given to those who have done nothing to achieve it
Economic justifications
• The rationale for this justification lies essentially in the fact that it provides an efficient infrastructure
and incentive for the proper management and use of resources
• If an individual owns property, they are more likely to take greater care of that property and maximise
its resources, thereby encouraging productivity and economic development
• This does not take into consideration the environmental implications/costs
Conclusion
• Proprietary interest in property can confer freedom and self-sufficiency and stimulate a sense of
personal dignity
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However, in a material society, the desirer to ‘have’ is detrimental as it doesn’t take into consideration
the other factors
Classification of property interests
PRIVATE PROPERTY
REAL
PROPERTY
(land and things
annexed to it)
Corporeal
Hereditaments
Visible and
tangible objects
e.g. Lands,
buildings,
windmills and
fixtures.
Incorporeal
Hereditaments
Intangible
interests
e.g.
Easements,
profits à
prendre, rights
of pasture
PERSONAL
PROPERTY
(Not land, except if
a lease)
Chattels
Real or
leaseholds
Pure
personalty
or chattels
personal
Choses in
Possession
Tangible, movable
goods
e.g. Furniture,
moteor cars,
books and boats
Choses in
Action
Intangibles
e.g. Debts,
shares,
patents and
copyrights
REAL PROPERTY
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Real property refers to interests in land, other than leasehold interests, and can be more specifically
defined with reference to the categories which fall within its auspice
Real property is categorised as being either a corporeal hereditament or an incorporeal hereditament
o Corporeal hereditaments are interests that are tangible and can be physically moved, for
example, books, televisions and cars
o Incorporeal hereditament are those interests which are intangible rights attached to land,
for example, rent charges and easements
Legally, land is referred to as ‘real property’, connoting its permeant nature
Under the common law, land refers to a portion of the earth’s surface and includes the space above
and below the land
PERSONAL PROPERTY
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Personal property can be described as all types of property, other than real property and are
traditionally referred to as ‘goods and chattels’
Personal property is classified as either chattels real or chattels personal
o Chattels real, or leaseholds, include interests in land for a fixed period and annuities issuing
out of such interests
o Chattels personal include all other forms of property, both corporeal (tangible) and
incorporeal (intangible)
! Chattels personal are further divided between choses in possession and choses in
action
- Choses in possession represent tangible goods which are capable of
actual possession
- Choses in action are intangible and incapable of being physically
possessed
> Pure choses are those rights which are enforceable but are not
identifiable by any form of documentary evidence
> Documentary choses are enforceable rights expressly set out in
specific documents
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Leasehold interests
• A leasehold interest is primarily a personal contract between an owner of land and a tenant,
conferring on the tenant the right to exclusive occupation for a specified period of time, in return for
the tenant paying agreed rent to the owner
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A contract which is expressed to exist for the benefit of a third party may be subsequently interpreted
by a court as creating a trust for the benefit of the third party and thereby confer an equitable
proprietary interest upon the third party – Trident General Insurance v McNeice (1988)
The factors borne in minds by courts when elevating a contractual right into a trust relationship and
conferring an in rem right upon a third party to the contract include:
(a) The nature of the contract and the intention of the parties;
(b) The impact that the proprietary interest will have upon the third parties;
(c) The hardship (if any) caused to the contracting parties; and
(d) The suitability of other, available remedies
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• A license, does not of itself, constitute a proprietary title, it merely amounts to permission to enter or
occupy premises " they do not have the right to exclude the rest of the world
• The test to determine whether a contract creates a lease or a license is whether the terms of
the contract confer exclusive possession of premises on an individual for a specific period of
time, if so, then this is a lease – Radaich v Smith (1959)
• A lease may be constructed in circumstances where exclusive possession is expressly conferred or
where the substance of the agreement makes it very clear that exclusive possession is intended
• Street v Mountford (1958) – the occupant of certain rooms entered the premises in a way which was
allowed for under the license. Despite the use of the word license, the HOL held that the nature of the
agreement was such that it constituted a lease, because it allowed to the exclusive possession of
those rooms in exchange for rent
Distinction between irrevocable contractual licenses and proprietary interests
• It is also important to distinguish between a contractual right and a property right for the purposes of
determining whether the right granted is revocable
o A contractual right is merely an in personam right, and can be revoked at any time
o Where the revocation is wrongful remedy can be had in damages for breach of the original
contract – Cowell v Rosehill Racecourse Co td (1937)
o Cowell v Rosehill Racecourse Co td (1937) – C sued R for assault. R argued that C was
trespassing on their land, so they had their servants removed C from the premises (they used
no more force than was necessary). C argued that he paid to enter the racecourse and this
allowed him to stay on the land and also gave him leave and license to stay on the
racecourse. Held that this was a contract to enter and remain on the basis that behaviour was
acceptable. There was neither a license nor a lease
o A property right, however, is not revocable at will – Wood v Leadbitter
! A person who enters a ground will ordinarily receive a contractual license to do so.
They do not gain a proprietary right to see the spectacle – Cowell v Rosehill
Racecourse Co td (1937). Their remedy for breach will therefore be damages
! NB. However, that the court may give equitable relief where they believe such a
response is suitable – Heidke v Sydney City Council (1952). This is a discretionary
power used where the court believes that damages would insufficiently compensate
NB. From Sonia Allen’s notes:
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Bare license – permission to enter land, which can be revocable at will, e.g. an invitation to attend a
party
Contractual license – permission to enter land supported by a contractual arrangement, e.g. the
purchase of a ticket to attend a football match
License coupled with a proprietary title – permission to enter land in support of a recognizable
interest in that land, e.g. permission to enter land and remove timber from that land (known in
property law as a profit a prendre)
Bare license
Revocable
Not binding on third parties
Contractual license
Probably irrevocable (but consider Cowell)
Probably not binding on third parties
Licenses coupled
with a proprietary interest
Irrevocable
Binding on third parties
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• A mortgage confers a proprietary interest upon the mortgagee for the duration of the loan in order to
secure its repayment
• In determining whether a loan contract is a mortgage, the court will consider the substance of the
agreement
o When the terms are such that the loan is paid over a great period of time, then this will
indicate a mortgage
New forms of proprietary interests
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As society develops, new forms of proprietary interests are being developed by the courts
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) – V owned a racecourse
and sought to prevent T from calling the races from his personal property nearby. They claimed that
they ‘owned’ the spectacle of the races and thus could prevent T from continuing to broadcast and
interrupt their custom
o The court disagreed, saying that a spectacle could only be described as property in a
metaphysical sense
o The court went on to say that new forms of intangible rights associated with land can only be
properly established where the boundaries of such rights are identifiable and their creation
does not unduly interfere with the fundamental proprietary rights of others
ABC v Lenah Game Meats (2002) – the HC refused to recognise the rights of L to prevent a
broadcasting segment of the practices of L (using illegally obtained possum meat). Gleeson CJ noted
that that owner of land odes own all acts carried out on the land and therefore could not prevent the
publication of the video
Intellectual property rights confer ownership over indistinct objects, e.g. original ideas, inventions
etc. – these rights are important to ensure the continuing development of technology
o These rights are completely regulated by statute so the constraints of the common law and
equity are not applicable
Moore v Regents of the University of California (1990) – the court dismissed a claim of conversion.
The plaintiff argued that his doctor took body cells (blood, cells, skin etc) during a procedure for
cancer without his permission. The doctor then used these to further his research into caner. The
court ultimately held that the community benefit from research by far outweighed any individual
considerations. The court suggested that a better cause of action would have been breach of
fiduciary duty or a failure to obtain informed consent
In Victoria, it is an offence to purchase human tissue – Human Tissues Act 1982 (Vic) s 9
Roche v Douglas (2000) – the court held that for human tissue to be regarded as property, is would
need to be classed as a ‘fiction’.
The implication of regarding human tissue as property, is particularly difficult when issues of death,
life saving treatment, organ transplanting etc is concerned
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PERSONAL PROPERTY
The nature of personal property
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Personal property refers to all property interests which do not constitute land
o Land, or real property, includes not only tangible, identifiable land interests, but also
intangible rights associated with the land such as easements
Chattels which have become permanently attached to the land so that they constitute fixtures are also
considered to constitute land. Therefore, personal property refers to all property interests not
coming within the definition of land; in this sense, personal property is a residual category
Personal property is generally movable, making the transfer of possession relatively easy; are of a
limited time span (unlike the perpetual and enduring character of land); and consists of a wide variety
of objects including furniture, jewelry, vehicles, books and clothing. It also includes intangible chattels
personal, namely choses in action
Choses in action can themselves be further broken into two categories; pure intangibles and
documentary intangibles
o Pure intangibles are pure because they may or may not be recognized through a document.
Examples of pure intangibles include a debt, copyright and goodwill
o Documentary intangibles are instruments or documents that are so much identified with the
obligation embodied in them that the appropriate way to perform or transfer the obligation is
through the document
Possessory title
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The common law’s remedies for deprivation of chattels are remedies for interference with possession,
or rights of possession, and not ownership. Possession, therefore, is not simply a physical condition
protected by ownership, but a substantive right or interest in itself – Perpetual Trustees v Perkins
There are three broad types of possession
(1) Actual Possession
• Actual, or de facto, possession requires effective occupation or control over the item in question
• It is a wider concept than mere physical custody as it includes any case where the person alleged to
be in possession has hidden the item effectively so that the person can take it into his or her physical
custody when the person wishes and where others are unlikely to discover it except by accident –
Williams v Douglas
• Possession can be consensual (such as the circumstances of bailment) or non consensual (i.e.
without the consent of the owner). Non-consensual acquisition of personal property may occur in a
number of ways:
o A person may find goods which have been misplaced by the true owner;
o A person may find goods which were never previously possessed; and
o A person may steal goods from the real owner.
• Actual, or de facto, possession provides prima facie evidence of ownership and also of itself creates a
legal right to possess enforceable against all who cannot show a superior right – Gatward v Alley
• Once actual possession can be proven, the possessor will acquire what is referred to as a
‘possessory’ title
• The only title that can defeat a possessory title is a proprietary title – Armory v Delamirie (1722) "
case of the chimney sweep who finds a necklace and then successful brought an action for trover of
that necklace
• Moreover, possessory titles can be used, enjoyed, sold or devised – Asher v Whitlock (1865)
• The owner of a possessory title is also entitled to just compensation for the acquisition of that land by
the Crown – Perry v Clissold
• A person holding a possessory title who is subsequently dispossessed will then acquire a ‘prior
possessory title’
o Prior possessory title will, as a general rule, defeat actual possession under the relativity of
title principle
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(1)(a) Proving actual possession
• In order to gain this possessory title it must be shown that the alleged possessor actually ‘possesses’
the goods. This is done by proving that you have a sufficient level of control over the goods
• Occupation or control will be ‘effective’ if it is sufficient as a rule, and for practical purposes, to
exclude strangers from interference with the occupier or controller’s use and enjoyment. The
existence of this practical ability to exclude will depend on:
o The kinds of physical control and use of which the thing in question is practically capable –
The Tubantia
o Whether there was an intention to possess the thing in question – Parker v British Airways
Board; and
o Whether another person, able in law or in fact to object to the occupation or control, has
consented or acquiesced to it
• Thus, the level of control needed depends entirely on the circumstances of the case.
• Consider the following examples:
o The Tubantia – The plaintiffs began a salvage operation with respect to a wreck called the
Tubantia. They located the wreck and moored two vessels at the wreck. They also
ascertained and marked out the area occupied by the Tubantia with buoys. The buoys gave
them direct access to the hull, which assisted their diving operations. The defendants arrived
a year or so later with a steamship, which they anchored in close proximity. The plaintiffs
requested them to leave, claiming the wreck was in their possession. The court held that it
was, and took expert evidence from the Trinity House (a British salvage company) to the
effect that the plaintiff was in possession of the wreck. The depth at which it rested, combined
with the moorings and buoys that had been set up, raised the presumption that they were in
effective possession of the wreck
o Bremner v Bleakley – The defendants owned land in which they undertook excavations to
create large trenches. The natural forces of the wind carried sand from the plaintiff’s land
onto the defendant’s land, where it was caught and kept in the trenches. The defendant sold
this sand for a profit. The plaintiff argued that they had property in the sand and that it was
unlawfully detained by the defendant. The court held that not only was no property held in the
sand, but no actions of the defendant contrived to move the sand to their land. It was the
natural forces alone which moved the sand across, and for this the defendant could not be
held liable. Soil or sand may become the property of the owner on whose land it lies, but the
natural movement of the topsoil could not be claimed to be a chattel. Hodgins JA stated that
‘the owner of land is entitled to all the natural advantages belonging to that land, and
therefore to all things which in the course of nature may be deposited thereon’; however, the
operation of natural forces legally divests the owner of possession and ownership, and it
passes onto the next property
o Chairman, National Crime Authority v Flack – Flack owned property which was searched
by the police in an unrelated matter. The police found a suitcase holding a large amount of
money in cash. The police took the case as evidence in an investigation. The investigation
fell through. Flack claimed the possessed the case and that it should be returned. The court
held that an occupier of private property will ordinarily manifest the necessary intention to
control chattels within the property. Nothing on the facts lifted this general presumption, and
thus Mrs. Flack had a possessory right to the case.
o Waverly Borough Council v Fletcher – Fletcher used a metal detector in a National Park \
to find a rare valuable brooch. The court held that the act of metal detecting and excavating
was an invasive act and not within the recreational purposes that the public was given the
authority to perform. The act itself was inherently invasive and thus not recreational. The
judge saw no reason to not apply the general rule that the owner of land has better title to an
object found in or attached to his land than the finder
(2) Constructive possession
• Constructive possession is the state of being in possession in the eyes of the law even when actual
physical possession is not present
• Constructive possession basically refers to situations where you have goods under your effective
control, even though the goods may not be physically in your possession. Examples include where
goods are locked or secreted away by you, or where they are possessed on your behalf by an
employee (Willey v Synan), agent, guest, licensee or bailee at will (Perpetual Trustees v Perkins). In
these situations the law recognizes that you can gain control of the objects at will, and are thus
considered to be in ‘constructive possession’
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In these situations, an owner not in actual possession may nevertheless bring an action in trespass to
chattels against strangers, but not against the employee, agent, guest, licensee or bailee at will with
custody of the chattels – Penfolds Wines v Elliot
o An action in trespass can only be had as against the employee/agent/etc where they treat the
item in a way which breaches their contract or agreement with you
Note that in situations of a bailment, only a bailor ‘at will’ will be considered to be in constructive
possession.
o A bailment ‘at will’ is a bailment whereby the bailor (the owner) can repossess the goods at
any time (or, at their own ‘will’)
o Other bailment agreements that are not ‘at will’ do not confer this right of immediate
repossession, and thus the bailor/owner is not considered to be in constructive possession "
they have title in the goods, but the right to exclusive possession lies with the bailee until the
bailment has finished
Constructive possession of an article will also remain with the owner even though he or she has lost it,
or even abandoned it, provided that no other person has taken actual possession of it – Koppel v
Koppel
A person in constructive possession of something is presumed to be its owner. This presumptive
possessory title, whether wrongfully acquired or not, is good against the whole world except those
who can show either a superior title, or authority under common law or statute. It accordingly grants,
as against strangers and wrongdoers, all the rights and remedies of a person with an immediate right
to possession
(3) Right to possession
• A right to possession is a legally enforceable right to have actual possession. It is a right the nature of
property, and transmissible according to the nature of the item that is the subject of the right to
possess – Gatward v Alley
• The right to possession is a normal incident of ownership, but may be temporarily suspended, as in a
bailment for a term (where the bailee will have the right to possession)
• A right to possession may also exist apart from both actual and legal possession, as where a rightful
possessor has been wrongfully dispossessed
• More than one right to possess may exist in respect of a particular item. Thus, the right to possess
conferred by actual possession is subject to another showing that he or she has a better right
Jus tertii defence
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The jus tertii defence states that even though the plaintiff may have a better possessory title to the
land than the defendant, a superior title to both claims lies with a third person who is not a party to the
case
As a general rule, a defendant in an action for wrongful interference with goods cannot escape liability
by showing that a third party has a better title than the plaintiff (the ‘jus tertii’ defence)
However, a defendant may set up the jus tertii where (China Pacific SA v Food Corp of India):
1. The defendant’s own title is claimed through the third party, such as where the defendant:
! Committed the conversion or wrongful detention under the third party’s authority; or
! Is defending the action for wrongful interference with the chattels under the third party’s
authority; or
2. Where the defendant has been evicted by the third party’s title paramount
3. Where the plaintiff was not in possession and relies solely on an immediate right to
possession – Banks v Ferrari. In this case the plaintiff must rely solely upon the strength of
his proprietary title
Following Perry v Clissold, it seems established law that the defence is not available generally for
interests in land, as it would contradict the traditional principle that proof of a prior possessory title
may defeat the claim of a subsequent possessor. Instead, the defence is largely only available in the
abovementioned situations, such as where the defendant is acting with the authority of the proprietary
titleholder
The jus tertii defence does not apply to wrongdoers
It is also questionable that the defence even applies to personal property – Jeffries v Great Western
Railway
Possession is still protected ultimately under the law, and the jus tertii defence will not avail wrongful
possession, unless that possession was under the authority of the true owner
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