Real Property
Associate Professor
Cameron Stewart
The Blind Men and the Elephant
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John Godfrey Saxe
What is property? Real & Personal
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Real Property – realty, interests in land – land is
three dimensional space located by reference to
a point on the earth’s surface – fixtures – in the
past only land was recoverable
Real Property is also split into two categories –
corporeal and incorporeal hereditaments (a right
capable of being devised to an heir)
What is property? Real & Personal
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Personal Property – catchall
(a) Chattels real – leasehold and other interests
in land that are less than freehold – distinction
drawn because of an institutional definition of
rights – only freeholds were enforceable by real
actions for recovery
(b) Chose in possession – a movable corporeal
thing – eg goods
What is property? Real & Personal
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Sale of Goods Act 1923 s 3(1) "chattels personal
other than money and things in action and also
includes emblements and things attached to and
forming part of the land which are agreed to be
severed before sale or under the contract for sale"
Bankruptcy Act 1966 s 5(1) – ships aircraft and
other vehicles; animals including fish; minerals,
trees and crops, whether on or attached to the land
or not and gas and electricity
What is property?
(c) Chose in action – a movable incorporeal thing rights which are enforceable by action – eg
shares, patents copyrights, equitable securities,
contractual rights, promissory notes, cheques,
mere equities
Test:
(i) Enforceability
(ii) Incorporeal and intangible
(iii) Bare right – not occupation and enjoyment
What are the characteristics of
"property"?
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Possession
Physical control - corporeality - what about all
the incorporeal forms of rights which are also
property?
Exclusion
The right to stop others from enjoyment of the
thing
Backburn J in Milirrpum v Nabalco
What are the characteristics of
"property"?
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Enjoyment and use
Property rights are also use rights - but there may also
be rights to enjoy which are not "property" - rights to
use public space - do you have a right to enter a
national park - generally yes, but you do not "own" that
right
Some rights of enjoyment can be transferred into
property - fishing and hunting rights can fructify into
property (eg when the animals and fish are killed or
captured they become property)
What are the characteristics of
"property"?
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Other enjoyments rights might have some
proprietary characteristics - eg a business
telephone number:
Rahne v Telstra Corporation (unreported, Young J,
8 June 1995)
What are the characteristics of
"property"?
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Definable and Identifiable
You have to be able to recognise it for you to
enjoy the rights of protection and use
But property on the fringe is becoming vague colors (Eagle Boys pizza), sounds (Harley
Davidson)
What are the characteristics of
"property"?
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Durable
Does property have to last? In general it would
be hard to say that something which disappeared
or was destroyed after a short time could be
owned or enjoyed as property - but durability is
a poor indicator of property given the explosion
in the number and types of choses in action these have no physicality and hence don't exist
in the real world at all
What are the characteristics of
"property"?
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Transferable/assignable;
Alienation - If a thing can be sold then it is
most likely to be considered as property
Is it merely personal to the right holder or can
the right holder trnafer the right to another? King
v David Allen & Sons
Gordon Laidler and Associates Pty Ltd v Hocking Young J 6 march 1995 – fishing licence
What are the characteristics of
"property"?
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Dominion – right against the world (in rem)
Blackstone - what restrictions exist for property
owners today?
Public interest – benefits v detriments of
recognizing property rights
There will be some property interests that will
not be recognised because of the public interest
Some historical examples:
The quasi proprietary nature of familial services
What are the characteristics of
"property"?
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Slavery - the common law was uncomfortable with
the slave as property because of the traditions of
habeus corpus - but it had no problem with
recognising slavery in the colonies - Sommerset's case
1772 - 1807
Modern example - human organs and corpses
Burial rights, the definition of death and the
invention and perfection of transplantation
Moore's case
R v Kelly
What are the characteristics of
"property"?
Social relationship
 Expression of the social relationship in the
common law - Materialism in the common
law!! – conceptualizing relationships as
things in themselves
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Interest defined
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The conventional term for the bundle of rights
which a person has in an object.
Eg interests in land (covenants, easements,
caveats, contract for sale) v ownership of land
Ownership defined
Knapp v Knapp [1944] SASR 257 at 261 per Mayo J:
"The general right of ownership embraces
subsidiary rights such as exclusive enjoyment, to
destroy, to alienate or to alter, and, of course,
the right to maintain, and to resume and recover
possession from other persons"
Ownership defined
Ownership indicates the relationship between a
person and a corporeal or incorporeal legal object.
It confers a bundle of rights to enjoy, use possess,
dispose of and alienate a "thing" as well as the
capacity to ward of any encroachment on the thing.
Ownership can be limited by other rights but is not
dependent on other rights.
 Ownership is therefore the subsidiary right that is
left when all other interests in the property have
been taken away (Campbells Hardware & Timber Pty
Limited v CSD (Qld) (1996) 96 ATC 4348)
Title defined
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Title is the measure of the strength of an
interest. It provides a yardstick to measure the
strength of competing claims of interests in
property
Possession defined
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No complete, logical and exhaustive definition of
"possession" has ever been given for the common
law – United States of America & Republic of France v
Dollfus Mieg et Cie SA & Bank of England [1952] AC
582 at 605
"Possession connotes a relationship between a
person and some material object. It is a relation
subsisting in fact. The ‘right’ of the possessor to the
chattel arises out of the factual situation" – Button v
Cooper [1947] SASR 286 at 292
Possession defined
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Two elements are necessary – (1) control
(corpus possessonis) – some exercise of power
over the goods or land
(2) intention (animus possidendi) – an attitude in
the mind of the actor denying the rights of
other to have access to the land or goods
Possesory Title
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Possession confers a possessory title –
possession is a root of title – possession is not
only evidence of title but is a form of title itself
– hence you have a claim against the whole
world barring the true owner – title is relative
The concept of land
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Common understanding is a solid piece of the earth’s
surface – however legal meaning is more abstract
Land – a three dimensional area of space the position
of which is located by reference to real of imaginary
points on the earth’s surface
The area can be on the surface of the earth or above or
below it – it does not have to contain any matter
("airspace") but usually is considered to do so – if the
matter contained in the space is destroyed then the land
will still exist
The Anglo-Saxon Invasions c500AD
Features of Anglo-Saxon Law
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Shire Moots and Hundred Moots
Compurgation – wager of law
Ordeal – fire, water, corsnaed
Distress
Outlawry
Bots (compensation for injury), wer (compensation
for death)
Deodand
Manorial justice
Property is allodial
The Partial Unification of the
Kingdoms
Pre-Norman Geography
The Battle of Hastings 1066
Norman Reorganisation
Sovereignty
 Absolute beneficial
title
 Reception of laws
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 Conquering
 Settling;
 Cessession
Feudalism
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The hierarchy of property
Homage fealty
Subinfeudation
Lords and villeins – unfree servitude (labour)
Growth of manorial customary law –
enforceable in the manor courts – unfree tenure
- copyhold
Kings courts and seisin
Types of tenures
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Knight service - military
Serjeanty – personal services to the King – onerous to the
comical
Frankolmoin – religious
Socage - residual – rose, hangings, ploughing, money rents
Incidents – Homage and fealty,
primer seisin - king's right to take land until homage paid
relief - right to claim amount when heir took tenancy
aids - levyies for particular occasions eg ransom
wardships - when heir took inheritance before majority lord
would take wardship and be able to claim fees for
administering estate- control marriage - traffic
escheat - right of feudal overlord to take back estate if
tenant was convicted of serious offence, fled jurisdiction or
died without heirs
Henry II – the Father of the
Common law
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Curia Regis
General Eyre and Assizes
Assize of Clarendon 1166 –
12 freemen from the
hundred and 4 from the town
Henry, Richard Coeur-deLion and John Lackland
John Lackland and Magna Carta
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Loss of France
Quarrel with Pope
Innocent III
1213 Langton and the
Charter of Liberties
1215- Runnymede
John Lackland and Magna Carta
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63 Clauses
39: No freeman shall be
taken or imprisoned or
dispossessed or outlawed or
exiled or in any way
destroyed …unless by the
lawful judgment of his
peers, or by the law of the
land
Edward Longshanks Hammer of the
Scots
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Parliament begins 1275
The use of statute as
opposed to ordinance
Nisi Prius
Quia Emptores
Curia Regis – embryonic courts
Court of Exchequer – revenue
 Court of Common Pleas – civil actions
 Court of King’s bench – crime
 Remaining Council functions split into
King’s Council later Concilium Regis and then
Privy Council
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The Writ System
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Bureacracy
Organisation of wrongs
Real actions, writs of right
Remedies
Popularity
Recording
Stare Decisis
Errors and Appeals
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The Record of judgment
Error’s on the record
Appealing the error
Appeal only available when there was an error
of law
The Modern Tudor State
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The War of the Roses
and the weakening of the
nobility
Reformation
The Collapse of Papal
power in England
Act of Supremacy
Dissolution of
Monasteries
Prerogative Courts
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Court of Star Chamber: the Curia Regis as a court –
court by 1487
Criminal and Civil jurisdiction – court of criminal
equity
Order offences – riots, juries, conspiracy – secret
hearings
Political trials under the Stewarts
Abolished in 1681
Court of Requests – paupers’ equity
Court of High Commission – eccelesiastical immorality
What’s the common law meant to
do?
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Persons & Property
Quick, efficient, fair and effective
Real property – real actions- real relief
Seisin
Remedies – return the seisin, pay monetary
damages
Contract and tort
What’s the common law meant to
do?
The requirement for writing - formality
Statute of Frauds
23B Assurances of land to be by deed
(1)
No assurance of land shall be valid to
pass an interest at law unless made by deed.
What’s the common law meant to
do?
23C Instruments required to be in writing
(1)
Subject to the provisions of this Act with respect to the
creation of interests in land by parol:
(a) no interest in land can be created or disposed of except by
writing signed by the person creating or conveying the same, or
by the person’s agent thereunto lawfully authorised in writing, or
by will, or by operation of law,
(b) a declaration of trust respecting any land or any interest therein
must be manifested and proved by some writing signed by some
person who is able to declare such trust or by the person’s will,
(c) a disposition of an equitable interest or trust subsisting at the
time of the disposition, must be in writing signed by the person
disposing of the same or by the person’s will, or by the person’s
agent thereunto lawfully authorised in writing.
(2)
This section does not affect the creation or operation of
resulting, implied, or constructive trusts.
What goes wrong?
What happened to Tenure?
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Subinfeudation
Quia Emptores 1290 - eliminate subinfeudation
and allow assignment of land without consent
14th century - labour economies
16th century fixed money rents - Statute of Wills
so escheat not a problem
17th century so small not worth worrying about
- 1660 Tenures Abolition Act - all socage and no
incidents, except forfeiture and escheat
The Office of the Lord Chancellor
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Around since Norman
times
Keeper of the King’s
Conscience
Cleric and Keeper of the
Great Seal
Member of Lords, Judge
and Church
Chancery as a Court
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Around the 15th century
Function to repair the failings of Common law
Principles of Christian fairness/conscience
Maxims of equity
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Substance not form
Does not assist a volunteer
Equity follows the law
Clean hands
Discretion and the Chancellor’s foot
The two streams – law and equity
Equity’s role
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‘You
must not allow conscience to prevent your doing
justice’.
Problems with the Common law
The Lord Chancellor and the popularity of equity
Earl of Oxford’s Case (1615) 1 Ch Rep 1; 21 ER 485. In
that case, at Ch Rep 6-7, 10; ER 486-7, Lord Ellesmere
said:
The Office of the Chancellor is to correct Men’s
consciences for Frauds, Breach of Trusts, Wrongs and
oppressions, of what Nature soever they be, and to
soften and mollify the Extremity of the Law ... [W]hen a
Judgment is obtained by Oppression, Wrong and a hard
Conscience, the Chancellor will frustrate and set it aside,
not for any error or Defect in the Judgment, but for the
hard Conscience of the Party.
Equity’s role
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Parkinson:
(i) the exploitation of vulnerability or weakness, as
exemplified in principles relating to unconscionable dealing
and undue influence;
(ii) the abuse of positions of trust or confidence, as
exemplified in the law of trusts and fiduciary obligations
generally;
(iii) the insistence upon rights in circumstances which make
such insistence harsh or oppressive as exemplified in relief
from penalties and forfeiture, the law of equitable set-off,
and the refusal of specific performance on the discretionary
ground of hardship;
Equity’s role
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Parkinson:
(iv) the inequitable denial of obligations, as exemplified in
the doctrine of part performance and the principle of
equitable estoppel;
(v) the unjust retention of property, as exemplified in
certain constructive trusts and principles of subrogation.
The Stewart Disaster
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James VI of Scotland
The rise of
protestantism
Absolutism of sovereign
– Divine Right of Kings
or King-in-parliament?
The Stewart Disaster
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James and Edward
Coke
Artificial reason of the
common law
Bacon & Ellesmere:
Earl of Oxford’s case
Bacon & Coke
Dr Bonham’s case
Chancer’s case
Earl of Oxford’s case
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The Office of the Chancellor is to correct Men’s
consciences for Frauds, Breach of Trusts,
Wrongs and oppressions, of what Nature soever
they be, and to soften and mollify the Extremity
of the Law ... [W]hen a Judgment is obtained by
Oppression, Wrong and a hard Conscience, the
Chancellor will frustrate and set it aside, not for
any error or Defect in the Judgment, but for the
hard Conscience of the Party.
The Stewart Disaster
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The Long parliament
Habeas corpus
The Civil War
Regicide of Charles I
Extreme Puritanism
Levellers
Restoration and revolution
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Interregnum
Restoration of Charles II
Tolerance of Catholics
James II – Catholic and married to a Catholic –
Abdication – William and Mary
1689 – Bill of Rights, Act of Settlement
The Action of Ejectment
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The failure of the common law writs
The new action for ejectment
Legal Fictions in land law: Doe and Roe
The legalisation of equity
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The Civil War – equity nearly destroyed
Lord Nottingham (1673-82)– father of equity
Lord Eldon – (1801-27) modern rules
Precedent and fixation
Appointment of VC
Poor administration
Infamous delay – record 16 years and still
interlocutory
th
19
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Century reforms
Bentham and the ‘dog law’
Judicature Acts 1870s – 1970s
The two streams in one courtWindeyer J in Felton v Mulligan
(1971) 124 CLR 367 at 392; [1972] ALR 33 at 46
Fusion fallacies
Salt v Cooper (1880) 16 ChD 545 at 549, Jessel MR said of the
effect of the Act:
It has been sometimes inaccurately called 'the fusion of Law and
Equity'; but it was not any fusion, or anything of that kind; it was
the vesting in one tribunal the administration of Law and Equity
in every cause, action, or dispute which should come before that
tribunal. … To carry that out, the Legislature did not create a
new jurisdiction, but simply transferred the old jurisdictions of
the Courts of Law and Equity to the new tribunal, and then gave
directions to the new tribunal as to the mode in which it should
administer the combined jurisdictions.
Property in CL
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Universalized, reified, fetishized – the materialization of
the common law
Formality
Creation
Transfer
Rights recognised in contract and tort – breach of
contract, trespass, negligence
Remedies for breach of property rights – damages
CL makes orders about the property not the people
Property in Eq
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Substance
Conscience
Power
Responsibility – lunacy, infants, married woman
Trust and confidence
BUT through the logic of precedent not unfettered
discretion
Rights recognised through doctrines of equity –
misrepresentation, undue influence, duress,
unconscionability, fiduciary relationships, part performance,
equitable estoppel, breach of confidence
Remedies – injunctions, specific performance, constructive
trusts, personal orders
Equity makes orders about the people not the property
Property in Eq
Equitable property or interest (equitable fee
simple, mortgages, covenants etc)
 Personal Equities (Gill v Gill)
 Mere Equities (Latec)
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Case study 1: When contracts go bad
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A (vendor) exchanges contracts with B (purchaser)
A gets a better offer from C (he knows about B’s offer)
and completes the sale to C before B knows
Common law approach? Breach and damages – no
property held by B
Equitable approach: breach and specific performance
But what about the property interests?
Case study 1: When contracts go bad
In common law B is not the owner as the contract
has not been completed so the property cannot
be returned
In equity, the rule in Lysaght v Edwards says that B
gets an equitable interest from the exchange and
that it is a form of constructive trust, which can
be enforced against C (when he knows about B)
Case Study 2: Fat Henry and the
problem of trusts
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Henry and the purse
strings
Taxation in Tudor
England – feudal tenures
Primogeniture
Devising land by will
The legal remainder rules
The use
A --------------------------B --------------------C
(Landowner)
(feoffee to use )
(cestui que use)
Legal estate Beneficial estate
CL
Equitable
The Statute of Uses 1535
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Collapse the use
Springing uses
The use on the use
Equity creates property where there was none
before……
Case study 2: Part performance and
the equitable ‘impersonation’
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A Lease for a factory – an agreement to create a
deed
Or a mortgage created by deposit of title deeds
Or a promise to give a life interest if cared for in
dotage…
The requirements for writing
23B Assurances of land to be by deed
(1)
No assurance of land shall be valid to pass an interest at law
unless made by deed.
23C Instruments required to be in writing
(1)
Subject to the provisions of this Act with respect to the
creation of interests in land by parol: (a) no interest in land
can be created or disposed of except by writing signed by
the person creating or conveying the same, or by the
person’s agent thereunto lawfully authorised in writing, or
by will, or by operation of law, ….
The requirements for writing
54A Contracts for sale etc of land to be in writing
(1) No action or proceedings may be brought upon any
contract for the sale or other disposition of land or
any interest in land, unless the agreement upon which
such action or proceedings is brought, or some
memorandum or note thereof, is in writing, and
signed by the party to be charged or by some other
person thereunto lawfully authorised by the party to
be charged…
CL says no deal
Part performance
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Equity looks to substance not form
Was there an agreement?
Did a party act under that agreement and performed an
act to their detriment which relates solely to the
agreement?
Is the agreement one which a court of equity would
order specific performance?
If yes to all then equity creates an interest which is an
equitable impersonation or copy of the common law
interest being claimed
Future adventures
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There are many ways to create and transfer
property in law and equity
Gifts
Choses in Action and s 12 of the Conveyancing
Act
Section 23C of the Conveyancing Act
Equitable assignment
The Sluggards in Equity
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Precedent and control
Lord Nottingham and precedent 1621
Lord Eldon 1751
Infamous delay – record 16 years and still
interlocutory
th
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Century reforms
Bentham and the ‘dog law’
Criminal Procedure
Judicature Acts 1870s
The two streams in one court
Colonial Australia
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The status of the local
laws of a colony
depended upon whether
it was:
a conquered colony; or
a settled colony (terra
nullius- an empty land)
Colonial Australia
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Australia was treated as being settled as it was
considered to be unoccupied, that is, as terra
nullius
No recognition of Aboriginal laws or customs
Aboriginal land rights not recognised