TABLE OF CONTENTS
LAWS2204 – Lecture 1 ............................................................................................................. 4
WHAT IS PROPERTY.....................................................................................................................5
1.1 ADMINISTRATION ...............................................................................................................................5 1.2 WHAT IS PROPERTY ............................................................................................................................5 1.3 how is property different ..........................................................................................................................7 1.4 JUSTIFYING PROPERTY RIGHTS.......................................................................................................9 1.5 The Objects of Property ............................................................................................................................9
LAWS2204 – Lecture 2 ........................................................................................................... 11
Real property and personal property: when does personal property become real property ..11 2.1 The distinction between real property and personal property ................................................................11 2.2 historical background .............................................................................................................................12 2.3 What is My Land? ..................................................................................................................................12 2.4 the dctrine of Fixtures: when Personal Property Becomes Real Property ..............................................14 2.5 Exam Problem Solving Steps .................................................................................................................20 2.6 Problem Solving Summary.....................................................................................................................20 2.7 Study Problem ........................................................................................................................................20
LAWS2204 – Lecture 3 ........................................................................................................... 23
Possession and personal property ..................................................................................................23
3.1 The Right to Possession: ........................................................................................................................23 3.2 ‘Relativity of Title’ .................................................................................................................................23 3.3 Actions in relation to Personal Property: Indirect Enforcement of Property Rights ..............................23 3.4 Conclusive statements ............................................................................................................................27
LAWS2204 – Lecture 4 ........................................................................................................... 28
Possession and personal property ..................................................................................................28 4.1 LOSING AND finding ...........................................................................................................................28 4.2 Abandonment of title ..............................................................................................................................34 4.3 Study Problem ........................................................................................................................................35
LAWS2204 – Lecture 5 ........................................................................................................... 37
FUNDAMENTAL CONCEPTS OF REAL PROPERTY (POSSESSION, TENURE AND
ESTATES) ........................................................................................................................................37 5.1 Possession as a good root of title, and relativity of title; action for the recovery of possession of land 37 5.2 Adverse possession of land - limitation of actions and extinguishment of title .....................................42
LAWS2204 – Lecture 6 ........................................................................................................... 44
FUNDAMENTAL CONCEPTS OF REAL PROPERTY (POSSESSION, TENURE AND
ESTATES) ........................................................................................................................................44 6.1 Adverse possession of land - limitation of actions and extinguishment of title .....................................44 6.2 Study problem: .......................................................................................................................................52
LAWS2204 – Lecture 7 ........................................................................................................... 55
Tenure and The Doctrine of Estates ..............................................................................................55 7.1 Introduction to the Doctrine of Tenure ...................................................................................................55 7.2 The Doctrine of Estates ..........................................................................................................................64
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LAWS2204 – Study Notes ....................................................................................................... 67
Estates ...............................................................................................................................................67
Introduction ..................................................................................................................................................67 The doctrine of estates ..................................................................................................................................67 Leasehold ......................................................................................................................................................71 Future Interests .............................................................................................................................................76 Limitations of the common law ....................................................................................................................77 Revision exercise (to be discussed in class) .................................................................................................79
LAWS2204 – Lecture 8 ........................................................................................................... 83
The Doctrine of Estates ...................................................................................................................83 8.1 Reversions and Remainders ...................................................................................................................83 8.2 Determinable and Conditional Grants ....................................................................................................85 8.3 Future Interests –vested or contingent? ..................................................................................................88 8.4 The Trust ................................................................................................................................................92
LAWS2204 – Lecture 9 ........................................................................................................... 94
Creation and Transfer of Interests in Land ..................................................................................94 9.1 Formalities Necessary In Old System Land- Legal Formalities.............................................................94 9.2 By Consent – In Equity ..........................................................................................................................96
LAWS2204 – Lecture 10 ....................................................................................................... 105
Creation and Transfer of Interests in Land Continued .............................................................105 10.1 Formalities: Express Trusts for Express Trusts ..................................................................................105 10.2 Non-Consensual Creation or Transfers ..............................................................................................106 10.3 Equitable Estoppel ..............................................................................................................................108
LAWS2204 – Lecture 11 ....................................................................................................... 109
Priorities Between Competing Proprietary Interests (General Law) .......................................109 Applying Priority Rules ..............................................................................................................................109 Fragmentation of Property Rights ..............................................................................................................109 Four rules: ...................................................................................................................................................110 Legal Interest v Legal Interest ....................................................................................................................110 Legal Interest v Equitable Interest ..............................................................................................................111 prior Equitable Interest v Legal Interest .....................................................................................................115
LAWS2204 – Lecture 12 ....................................................................................................... 125
Priorities Between Competing Proprietary Interests (General Law) Continued ....................125 Equitable Interest v Equitable Interest........................................................................................................125 Problem Solving Steps: ..............................................................................................................................129
LAWS2204 – Lecture 13 ....................................................................................................... 131
Particular interests in land: Introduction to Mortgages ...........................................................131 13.1 What is a mortgage? ...........................................................................................................................131 13.2 Difference between Old Law and Torrens Mortgages .......................................................................131 13.3 Mortgage of a Legal Fee Simple ........................................................................................................133 13.4 Equity of Redemption.........................................................................................................................133 13.5 Legal Mortgage ..................................................................................................................................134 13.6 Equitable Mortgage ............................................................................................................................134 13.7 Subsequent Mortgages........................................................................................................................136
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13.8 Mortgages ...........................................................................................................................................136 13.9 Torrens System Mortgage ..................................................................................................................137 13.10 Covenants .........................................................................................................................................137 13.11 Mortgagee’s Remedies – Defualt by the mortgagor .........................................................................139 13.12 Power of Sale - Formalities ..............................................................................................................141 13.13 Dispersal of Proceeds of Sale ...........................................................................................................143 13.14 Power of Sale – Mortgagee’s Duty ..................................................................................................143 13.15 Cuckmere Brick (1971) ....................................................................................................................144 13.15 Southern Goldfields Ltd v General Credits Ltd (1991) ....................................................................145 13.17 Vasiliou v Westpac Banking Corporation (2007) ............................................................................146 13.18 Power of Sale – Statutory Duty of Care ...........................................................................................147 13.19 Time of Sale .....................................................................................................................................148 13.20 Date of Sale ......................................................................................................................................148 13.21 Prohibition on Sale to Mortgagee .....................................................................................................149 13.22 Farrar v Farrars Ltd (1888) 40 Ch D 395 .........................................................................................150 13.21 Mortgagor’s Remedies – Mere Equity .............................................................................................150 13.22 Mortgagor’s Remedies – s 111A ......................................................................................................152 13.23 Problem Solving ...............................................................................................................................152
LAWS2204 – Lecture 14 ....................................................................................................... 154
Particular interests in land: Introduction to Leases ..................................................................154 14.1 Introduction ........................................................................................................................................154 14.2 Exclusive Possession ..........................................................................................................................154 14.3 Leases: certainty of duration...............................................................................................................154 14.4 Creation of Different Types of Lease (Requirements of Form) .........................................................155 14.5 Fixed Term Leases .............................................................................................................................157 14.6 Tenancies for Life ...............................................................................................................................157 14.7 Periodic Leases ...................................................................................................................................158 14.8 Lease v Licence ..................................................................................................................................161 14.9 Obligations of Landlords and Tenants ...............................................................................................162 14.20 Express covenants ............................................................................................................................162 14.21 Covenants implied in fact in a particular lease .................................................................................162 14.22 The convenant of Quiet Enjoyment ..................................................................................................162 14.23 Covenants implied by statute, eg ss 84, 85 CA (NSW) ....................................................................162 14.24 Covenants implied at law in all leases - for landlords: .....................................................................163 14.25 For tenants: .......................................................................................................................................163 14.26 Breach of Covenant – Express or Implied ........................................................................................164 14.27 Tenants Remedies .............................................................................................................................167
LAWS2204 – Lecture 15 ....................................................................................................... 169
INTRODUCTION TO TORRENS TITLE - FUNDAMENTAL PRINCIPLES.....................169
15.1 Overview of old system conveyancing – deficiencies........................................................................169 15.2 The Torrens system - origins and principles ......................................................................................172
LAWS2204 – Lecture 16 ....................................................................................................... 181
Torrens System: Indefeasibility and its exceptions ....................................................................181 16.1 Overview ............................................................................................................................................181 16.2 Sir Robert Torrens ..............................................................................................................................181 16.3 Key elements ......................................................................................................................................181 16.4 Priority Disputes in Torrens ...............................................................................................................181 16.5 Indefeasibility .....................................................................................................................................181 16.6 How does indefeasibility work? .........................................................................................................183
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16.7 Frazer v Walker [1967].......................................................................................................................184 16.8 Breskvar v Wall (1971) ......................................................................................................................185 16.9 Indefeasibility core principles ............................................................................................................186 16.10 Gibbs v Messer [1891] .....................................................................................................................187 16.11 Exam: Steps for Registered Proprietors ...........................................................................................189 16.12 Exceptions to indefeasibility ............................................................................................................189 16.13 Exceptions to Indefeasibility: Key Principles ..................................................................................191 16.14 The Fraud Exception ........................................................................................................................191
LAWS2204 – Lecture 17 ....................................................................................................... 193
The Torrens System: Indefeasibility and Exceptions Continued .............................................193 17.1 The Fraud Exception ..........................................................................................................................193 17.2 Unregistered (short term) leases .........................................................................................................203 17.3 Registrar’s power to correct ‘errors and omissions’ ...........................................................................203 17.4 Practice Problem Question .................................................................................................................203 17.5 Interests arising under other statutes ..................................................................................................204 17.6 Stocktake Exam Tips .....................................................................................................................207 17.7 ‘Actions in personam’ exception to indefeasibility ............................................................................207 17.8 Unconscionability ...............................................................................................................................209
LAWS2204 – Lecture 18 ....................................................................................................... 210
The Torrens System: Indefeasibility and Exceptions Continued .............................................210
18.1 Mistake action in personam ................................................................................................................210 18.2 in personam actions in breach of contract ..........................................................................................212 18.3 In Personam and Knowing Receipt ....................................................................................................214 18.4 What do I do in the Exam ...................................................................................................................214 18.5 Volunteers and indefeasibility ............................................................................................................214
LAWS2204 – Lecture 19 ....................................................................................................... 218
Priority between unregistered interests ......................................................................................218 19.1 Overview ............................................................................................................................................218 19.2 Caveats ...............................................................................................................................................218 19.3 Lapse of Caveats .................................................................................................................................220 19.4 Removal of Caveats ............................................................................................................................220 19.5 Priority Disputes .................................................................................................................................220
LAWS2204 – Lecture 20 ....................................................................................................... 223
Priority between unregistered interests ......................................................................................223 20.1 Failure to Lodge a Caveat ...................................................................................................................223 20.2 Examples of other Priority Losing Behaviour ....................................................................................227 20.3 Relevance of ‘Mere Equities’ in priority disputes between unregistered interests?...........................229 20.4 Problem Solving Steps for URI vs URI .............................................................................................230 20.5 Real Property Act 1900 s 43A ............................................................................................................231 20.6 Would s 43A make a difference in these cases? .................................................................................235 20.7 IN FINAL EXAM NOTES: ...............................................................................................................239
LAWS2204 – Lecture 21 ....................................................................................................... 240
Motgages and the Torrens System ...............................................................................................240 21.1 The Nature of a Torrens Mortgage .....................................................................................................240 21.2 Execution of Torrens Mortgages ........................................................................................................240 21.3 Priority Disputes and the Power of Sale .............................................................................................240
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21.4 Priority Disputes – Contract Settled ...................................................................................................241 21.5 Transfer has been registered ...............................................................................................................241 21.6 Mortgagee’s Statutory Duty ...............................................................................................................241
LAWS2204 – Lecture 22 ....................................................................................................... 242
2017 PQ: Mortgages and the Power of Sale ................................................................................242
LAWS2204 – Lecture 23 ....................................................................................................... 246
Co-Ownership of Land .................................................................................................................246 23.1 Co-ownership .....................................................................................................................................246 23.2 1. JOINT TENANCY AND TENANCY IN COMMON ..................................................................246 23.3 2. RIGHTS OF CO-OWNERS BETWEEN THEMSELVES ............................................................251 23.4 3. BRINGING CO-OWNERSHIP TO AN END ..............................................................................254 23.5 4. SEVERANCE OF A JOINT TENANCY TO CREATE A TENANCY IN COMMON ..............254
LAWS2204 – Lecture 24 ....................................................................................................... 260
Revision ..........................................................................................................................................260 24.1 The exam itself: ..................................................................................................................................260 24.2 the two separate views of the power of sale .......................................................................................261 24.3 Look at Section 56C ...........................................................................................................................261 24.4 S111A .................................................................................................................................................261 24.5 When you look at an RI v URI ...........................................................................................................261
LAWS2204 – Tutorial 1 ........................................................................................................ 262
PQ ANswer .....................................................................................................................................262
LAWS2204 – Tutorial 2 ........................................................................................................ 268
PQ Answer .....................................................................................................................................268
LAWS2204 – 2017 Mid-Semester Exam .............................................................................. 272
PQ Answer .....................................................................................................................................272
LAWS2204 – Tutorial 3 ........................................................................................................ 273
PQ Answer .....................................................................................................................................273
LAWS2204 – Tutorial 4 ........................................................................................................ 277
Problem Question ..........................................................................................................................277
LAWS2204 – Tutorial 5 ........................................................................................................ 282
PQ Answer .....................................................................................................................................282
LAWS2204 – Tutorial 6 ........................................................................................................ 285
PQ Answer .....................................................................................................................................285
LAWS2204 – Past Paper 2008 .............................................................................................. 291
PQ Answer .....................................................................................................................................291
EXAM CHEET SHEET – 12 pages 293-304
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LAWS2204 – LECTURE 1
WHAT IS PROPERTY
1.1 ADMINISTRATION
Textbooks
Tutorials:
• 6 tutorials – quality not quantity
Assessment:
• Online quizzes – no marks
• Take-home – Mid Semester worth 50%
o 2 questions: 1 factual scenario and 1 short essay
o There will be past mid-semesters on wattle and general feedback
o This is an open book exam at home
o There is a period of 24 hours 12 noon 5th April – 12 noon 6th April
o Referring to sources – AGLC referencing
• Final Examination – written examination worth 50%
o You are allowed 3 sheets of A4 paper on both sides of each sheets – 6 pages of
notes.
o 30 mins reading – 90 mins writing
Class reps:
• Blahblahblah – not interested
1.2 WHAT IS PROPERTY
• Property law is not logical, it is historical.
• A lot of the concepts derive from medieval England and France
• It has also been strongly influenced by political forces those with property have a
greater voice in determining what the law would be than those who do not.
1.2.1 PROPERTY:
• Things
o Property is hugely important in our society, socially and economically.
o Our society is based on property it forms political debates.
• rights to things
• legal relationships between people with respect to things
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1.2.2 THE CONCEPT OF PROPERTY:
Property provides power: the right to use and enjoy, the right to exclude others from use and
enjoyment, the right to alienate (even though this is the closest you’ll get to a definition on
property it is still not watertight), rights can be shared/fragmented.
Milurpum (early land rights case) (1971)
• land rights regarding indigenous relationship with land – does that make it property?
• Problems with indigenous understandings of land
o Right to communal land
o Do not have the right to exclude others from use and enjoyment
o More like the land owns the Aboriginal people they have obligations and
spiritual connections to it
• Judges concluded that whatever the indigenous system was, it was not property
therefore the indigenous rights to land were not recognised until the Mabo decision
Yanner v Eaton (1999) 201 CLR 351
‘The word “property” is often used to refer to something that belongs to another. But in the
Fauna Act, as elsewhere in the law, “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.’ - par 17 (Gleeson CJ, Gaudron, Kirby and
Hayne JJ)
• dealt with the core definition of property
• property is a legal relationship with a thing, refers to a degree of power that is
recognised in law as permissible exercised over that thing.
• ‘a legally endorsed concentration of power’
Note: property gives you power as noted by the High Court. When discussing the concept
of property, the concept of property can dissolve into thin air, there is no real coherence in the
concept of property. This is a feature you must be aware of. Vagueness or coherence in the
concept of property in our law.
Note: in property, technically no one owns anything, the only entity that can own land is the
Crown. Instead you have rights over things.
• So, what does ownership mean then?
• When you own a home, you actually own a right to that property
• What you own is a state or interest, a ‘fee simple’
o Closest you can come to full ownership
• There is no such this as allodial ownership
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Example: in most common cases, when someone buys a house, they take money from the
bank, so they don’t own the house, the bank also has rights coming from the loan. If you were
then to lease out the property, then the tenants would also haver the right to use and enjoy the
house for the period of the lease. As can be seen, property can quickly become a complicated
issue of multiple ownerships.
Properties two main categories:
1. Real
2. Personal
Property as a Bundle of Rights: Milirrpum v Nabalco (1971) 17 FLR 141 at 171:
• the right to use and enjoy
• the right to exclude others from use and enjoyment
• the right to alienate
• rights can be shared / fragmented
1.3 HOW IS PROPERTY DIFFERENT
1.3.1 KING V DAVID ALLEN & SONS [1916]
King v David Allen & Sons [1916] 2 AC 54:
FACTS:
• King owned a block of land (had the fee simple)
• In 1913 made a contract with the company David Allen which gave that company a right
(‘an exclusive licence for the period of four years’) to put up posters and ads on the wall of
a picture theatre that was to be built on King’s land
• In return for this right an annual rental was specified
• So did David Allen have a property right?
• King ntered into another deal with a company that was going to build and fund the picture
theatre
• This company was going to lease the land and rune the threatre on behalf of king
• Note: the companies have a separate legal personality and are not the same as their owners
and/or shareholders
• After the theatre was bult, the company that built the theatre, once it was built, said david Allen could not put up the adverts.
HELD:
• Was there a contract?
o Yes there had been a breach of the contract as David Allen was not permitted to
put up the posters o What’s the primary remedy? damages.
o Thus, as a matter of contract David Allen could sue King and King would have to
pay compensatory damages.
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As a matter of contract, the third company has no rights or remedies.
If it had been a lease of the wall – a prior property right (David Allen’s)
usually prevails under the law – the result would have been different.
• The court decides at the very least David Allen has contractual rights against King
o Remedy: normally in a contract breach remedy is damages (different between
personal and property rights)
Personal rights are normally money
o But a proprietary right then you can demand that the contract is specifically
enforced
Specific performance is an important remedy in property.
• As David Allen wanted to put the photos up on the wall he would be seeking the
proprietary rights
o So does this contract create a proprietary right that vested David Allen, the David
Allen would be able to enforce the contract against the theatre company
• Held that it was just personal, not proprietary
o If the lease words were used, David Allen could have enforced proprietary rights
o Instead the contract used language of licence and therefore sphere of enforceability
was not that of a proprietary right.
Proprietary rights can be enforced against third parties.
NOTE: the circular reasoning – tempted to say property is anything a court is ready to declare as
property.
TAKEAWAY: big difference between property and personal rights
Personal rights are primarily concerning contractual rights
Secondly – the sphere of enforceability – property rights are enforceable against more people than
personal rights. Contractual rights are only inferable upon those party to the contract. Property
rights can be enforced “upon the entire world”
Difference between licence and lease/ agreements:
LICENCE
personal rights
(in personam)
PERSONAL
LEASE/EASEMENT
proprietary rights
(in rem)
REAL
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Definition: easement: proprietary right when you have the right to do something on someone
else’s property.
1.4 JUSTIFYING PROPERTY RIGHTS
• Natural rights theories, e.g. Locke’s labour theory
• Consequentialist theories, e.g. utilitarianism (Bentham)
• Evolutionary theories, e.g. Hume
1.5 THE OBJECTS OF PROPERTY
• Generally speaking, the objects of property (things that are capable of being subjected
to private ownership) continuously expands
• More and more things are now privately owned – it was originally about tangible
things – whereas now there is intellectual property (the printing press to copyright)
o We continue to privatise and subject to private ownership more and more of
the worlds resources
• The concept of the ‘commons’ as in English law, is now dead.
1.5.1 HUMAN BODY PARTS?
• Can we own our bodies?
Doodeward v Spence (1908) 6 CLR 406
• The leading authority in Australia on the question of whether there is property in, or a
right to possession of, a human body or part thereof
This concerned the body of a “two-headed baby” that had been still-born in 1868. The
attending doctor had taken the body away and preserved it in spirits and kept it in his surgery
as a curiosity. When the doctor died in 1870 the preserved baby was sold as part of his
personal effects, and eventually it came into possession of Doodeward, who exhibited it for
commercial gain. Spence, a police officer, seized the bottle and its contents, and Doodeward
brought an action for repossession of it. By majority (Griffiths CJ and Barton J) the High
Court held that he was entitled to an order for the recovery of the bottle and the body.
Moore v Regents of the University of California (1990) 793 P 2d 479
• Question of do you own your body?
• You have rights over it but the traditional answer under the law is NO
FACTS:
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• Moore being treated for leukaemia and in the course of diagnosing and treating the illness,
samples of its blood, bone marrow, skin, semen and other body sunstances were taken and
his spleen was removed
• Moore signed a consent for to the removal of his spleen but did not consent to its use for
scientific purposes and was unaware of the potential commercial value of his cells
• Later, Golde (the doctor) established a cell line from Moore’s cells that he then patented
and went on to receive payments amounting to a t least $450000
• Moore argued that he should be given the money because the research was made from his
cells, his property. He argued that he continued to own his cells following their removal
from his body, at least for the purpose of directing their use and he never consented to this
line of use.
HELD:
• Court held that the body is not property
• Mask J ‘The term ‘property’ is sufficiently comprehensive to include every species of
estate, real and personal, and everything which one person can own and transfer to another.
It extends to every species of right and interest capable of being enjoyed as such upon
which it is practicable to place a money value.
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LAWS2204 – LECTURE 2
REAL PROPERTY AND PERSONAL PROPERTY: WHEN DOES PERSONAL
PROPERTY BECOME REAL PROPERTY
2.1 THE DISTINCTION BETWEEN REAL PROPERTY AND PERSONAL
PROPERTY
• Private property
o Realty
Corporeal
• Eg. Land and things attached – fixtures
Incorporeal
• Eg. Easements profits
o Personality
Pure personality (chattels personal)
• Choses in possession (tangibles) eg. Car
• Choses in action (intangibles) eg. Shares, patents
Chattels real
• leases
Real property land
• The only property which must be returned to you – in medieval and real time
Personal property everything else
• Only issue compensation for the property taken
Uniqueness:
• Land cannot be interchanged
• Personal property [most – one of a kind art etc. is and exception] is considered
fundable goods which can be interchanged
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2.2 HISTORICAL BACKGROUND
• The remedies that were involved in real property were different from personal
property
o Medieval England
• If you want to enforce a right in respect of land then tou had a right to go to court and
get a court order which restored possession to you.
• Real a right to repossession of the res
• Personal a personal right to compensation (i.e. the value of the thing taken)
o These were enforced indirectly
o The owner who was deprived of possession of a chattel did not have a right to
a court order repossession but compensation of the value of the thing that was
taken
o So, at common law property rights in personality were protected by way of the
laws of torts
• This historical distinction is the basic distinction between real and personal property
• But there are further sub-categories
Corporeal Hereditaments v Incorporeal Hereditaments:
• Corporeal hereditaments have to have a physical being
o E.g. land the right to possess that piece of land
• Incorporeal hereditaments don’t have a physical form
o E.g. easements rights of way, allow someone (e.g. the council) to pass over
the land, is not a permanent right to possess the land.
This could include allowing your neighbour to drive through your
property to get to their property
Pure Personalty v Chattels Real:
• Chattels Real leases
o Dealt with later in the course
• Pure Personalty is separated into Choses in Possession (CiP) and Choses in Action
(CiA)
o In French ‘choses’ means ‘things’
o CiP are things that can be touched and moved
o CiA are things that are that are intangible
They are items of personal property, but they cannot be touched
E.g. Intellectual property rights, debts, Frequent Flyer Points
They are enforced by suing.
2.3 WHAT IS MY LAND?
• If someone is the owner of land (real property right) what is ‘owned’?
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• Cuius est solum eius est usque ad coelom et usque ad inferos “The person who has
land has it from the heavens above to the centre of the earth below”
Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479
o If you own this piece of land, then you own the block of airspace which goes
to the heavens and the soil/rock beneath the land until hell (Medieval English
interpretation of the World)
• If we took that literally what that would mean is that when an airplane flies over the
land at 10000 metre, the air company would be committing trespass
o Or a satellite orbiting the earth, would also be committing a trespass
• Obviously, this saying is not taken literally
2.3.1 BERNSTEIN OF LEIGH (BARON) V SKYVIEWS AND GENERAL LTD [1978]
Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479
FACTS:
• Baron in the Business of taking aerial photos of lands that they would then offer to the
owner for a price
• Many people were happy with this as they wanted photos of their house
• However, Skyviews sue Berstein for committing a trespass of their land
HELD:
• Rights of airspace are restricted to such height as is necessary to the ordinary under and
enjoyment of the land and structures on it
• In this case the airplane was high, way above the house and was not swooping low,
endangering the house or causing any issue to the people on the land
• Therefore, there was no grounds to sue for trespass
• Lord Griffith noted:
2.3.2 LIP INVESTMENTS PTY LTD V HOWARD CHIA INVESTMENTS PTY LTD
(1989)
LIP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
• P obtained a mandatory injunction requiring the D to remove scaffolding which was
erected 4.5m above the ground level and protruded about 1.5m into the airspace above P’s
property
• The P had asked for payment in return for the use of airspace which the D had refused to
pay
• Hogson J held ‘the case really comes down to whether one person should be permitted to
use the land of another person for considerable personal gain for himself, simply because
his use of the other person’s land causes no significant damage… as a matter of general,
though not universal principle, I would answer this no’
2.3.3 BULLI COAL MINING CO V OSBORNE [1899]
Bulli Coal Mining Co v Osborne [1899] AC 351
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• A person who mined coal beneath the land of another person was held liable to trespass
2.4 THE DCTRINE OF FIXTURES: WHEN PERSONAL PROPERTY
BECOMES REAL PROPERTY
In what circumstances can CiP (moveable, touchable possessions) become part of the land of
which they are pat/placed?
• A part of the boundary between real and personal property
Consequences of the Difference between personal and Real Property
1. If a chattel becomes a fixture, then ownership of the chattel will pass with ownership
of the land.
a. Unless the contract of sale specifically mentions an exclusion of that chattel
2. If a tenant of land, a person who has a lease of the land, bring chattels onto the land
those chattels become fixtures then they become the property of the landlord.
a. E.g. hooks in the walls
3. Possible when someone makes a will to give their real property and their personal
property to different people
2.4.1 WHAT IS A FIXTURE AND WHAT IS NOT?
3 situations where disputes arise:
• Vendor and purchaser in the buying and selling of real estate (vendor seller)
o Above ground swimming pool – is it chattel?
• Mortgagor and mortgagee (the mortgagor is always poor the owner– the mortgagee
is the bank)
• Land lord and the tenant
4th situation:
• Different classes of beneficiaries under a will
2.4.2 HOLLAND V HODGSON (1972)
Holland v Hodgson (1972) LR 7 CP 328, 334-335 (Blackburn J)
The classic authority on fixtures.
‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes
part of the land; … When the article in question is no further attached to the land, then [sic] by its
own weight it is generally to be considered a mere chattel’. (Quoted in the Belgrave judgment)
• E.g. a painting is attached to a wall by a hook by its own weight and therefore, it is not
attached and when the lease ends it can be taken
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• However, this is only a general rule, only a starting place
• Blackburn J said one MUST consider ALL of the circumstances of the case, in particular
o The degree of annexation
o The object (i.e. purpose) of annexation
E.g. if the purpose of annexation was not to make it part of the land and if
this conclusion is drawn, then it doesn’t matter how closely it is attached, it
doesn’t become part of the land
The presumption: if an item is annexed to the land, even just slightly, it is a fixture. This is
the allocation of a burden of proof.
2.4.3 AUSTRALIAN PROVINCIAL ASSURANCE CO LTD V CORONEO (1938)
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700
‘If a chattel is actually fixed to land to any extent, by any means other than its own weight, then
prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not; if it is
not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and
the burden of proof is on anyone who asserts that it is’.
FACTS:
• There was a theatre with seat that could be bolted to the floor, but they weren’t
permanently bolted to the floor
• The evidence was that they were regularly unbolted and moved around
• The owner of the theatre used different seating plans for different performances
• It seemed that the only reason that they were ever bolt to the floor was to hold them in
place for the duration of the performance, but then afterwards they were to be unbolted and
moved around
• This meant that the purpose was not permanent annexation
• The purpose was not to permanently improve the land or add a permanent benefit to the
theatre
• When the owner of the theatre took the seats away argued that it was fine as they had not
become permanent fixtures of the land.
HELD:
• That they were chattels, not permanent fixtures of the land and so the owners where free to
take the seats with them
• Jordan CJ ‘If a chattel is actually fixed to land to any extent, by any means other than its
own weight, then prima facie it is a fixture and the burden of proof is upon someone who
asserts that it is not otherwise fixed but is kept in position by its own weight, then prima
facie it is not a fixture, and the burden of proof is on anyone who asserts that it is’ [700,
721]
• This is just a presumption it places the onus of proof on the other party who can then
argue that the object or purpose of annexation was not to add to the land
• So, if only attached by its own weight then burden of proof is on the person who wants to
prove that it is fixed to the land by looking at the object or purpose of annexation
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• On the other hand, if it is attached by more than just weight, then the burden of proof is on
the person who wants to argue that the object or purpose was not to have the object
connected to the land
• Australian case law has remained mostly consistent on this principle
• ‘The intention of the person fixing it must be gathered from the purpose for which and the
time during which the user in the fixed position is contemplated.’
• If a thing has been securely fixed, and in particular if it has been so fixed that it cannot be
detached without substantial injury to the ting itself or to that to which it is attached, this
supplies strong but not necessarily conclusive evidence that a permanent fixing was
intended
2.4.4 MAY V CEEDIVE PTY LTD [2006]
May v Ceedive Pty Ltd [2006] NSWCA 369
FACTS:
• May was the tenant of a house located at the Pottery Estate which is just outside of
Lithgow
• Lithgow used to be a major coal mining area
• The house was originally a minor’s house
• Was built of brick between 1910 and 1915
• As was a brick house there was a high degree of annexation to the land, could not be
removed without demolishing it
• May was not a coal minor, had acquired the house long after it had ceased to be a place
where coal minors lived
• The estate agent told May acquired his interest in the house, his subjective intention was
acquiring ownership of the house and sheds, but he was not getting ownership of the land.
• If the hose was part of the land, fixture, then the agreement that may had with Ceedive
would have to be regarded as a lease of the house and the land rather than the bare land
only
• If the house was a fixture, then the house and the land could not be separately owned
• Therefore, May would have a lease of the house and the land, therefore a lease of
residential property and therefore, Ceedive would not be able to evict May in the
circumstances that they did.
• Therefore, it was important to determine whether the house was a fixture as then it
could not possibly be a rent of the land alone
HELD:
• Consider the degree of annexation of the house
o Brick House attached to the land
o So, consider Coroneo, there is a legal presumption that the house is a fixture
• This means that the onus of proof switches to Ceedive
o They would have to point to other evidence that indicates it was not intended to be
added to the land as a permanent fixture
• Ceedive tried to argue that May’s intention was to gain a lease in respect of the land, but to
own the house
o Argued that because May understood that he was not getting a lease of the house, it
was not a fixture
o Therefore, the purpose of annexation was not to make it a part of the land
• Court of Appeal said that it was a part of the land
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• Santo J in deciding whether an item was fixed to the land back in 1910 and 1915, then
we have to look at the intention or apparent intention of the person (reasonable inference)
of the person who fixed the house to the land back then.
o What May’s intention was in 1969 is irrelevant.
This is because it is not May who fixed the house to the land.
o What is relevant is the apparent intention of the person who built the house
This was not a case where temporary structures were constructed simply
for the duration of the coal mining period.
They were not intended to be taken away once the coal mine was
exhausted
Instead permanent brick structures were built with the intention that once
they were built they should remain their indefinitely
o Moreover, it was physically impossible to remove these houses without
demolishing them.
What we learn from Ceedive:
• Very important to consider the nature of the evidence
o On the evidence, the notion that May’s house was not permanent, was not
credible
A brick house was clearly meant to be permanent
• Demonstrates the existence of an agreement that an item is not conclusive as to the
status of the item
o It is relevant, but not conclusive
o So even if it was May’s subjective intention that owned the land, not the
house, that is not conclusive to the outcome
o Relevant to higher purchase agreements
2.4.5 HOBSON V GARRINGE [1897]
Hobson v Garringe [1897] 1 Ch 182
FACTS:
• A gas engine had been affixed by bolts and screws to the mortgagor’s land under a hire-
purchase agreement made by him with the hirer
• The mortgagor made default under his hire-purchase agreement and the mortgagee entered
in possession of the land
• The hirer sought to restrain the mortgagee from selling the machine claiming ownership of
it, while the mortgagee claimed entitlement of the machine as a fixture
HELD:
• The intention that the gas engage was not to become a fixture might be got out of the hire
and purchase agreement, and if so, it never became a fixture and part of the soil
• However, this hire and purchase agreement between the owner of a chattel and a hirer or
any other agreement unknown to either a vendee or mortgagee in fee of land does not
demonstrate strongly that such a consideration was made and therefore, the intention was
there.
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2.4.6 NOT ATTACHED BUT A FIXTURE
It is possible to have something not attached but is still regarded as a fixture
Reid v Smith (1905) 3 CLR 656
FACTS:
• Concerned a house which rested on its own weight on brick peirs
• They were not attached to the house
• At the time this was common practice in QLD to avoid termite infestation
• The house had been erected by the lessee of the house
o It was a term of the lease that the lessee must erect a house on the land
• At the end of the lease term, the lessee sought to remove the house, but the landlord
sought to stop them
HELD:
• The High Court said that it is a fixture even though it was not attached to the land as
such.
• The presumption is that it is not a fixture, therefore the burden of proof is on the party
which was to show that it is a fixture (the landlord) and show that the purpose of object
of annexation was that it was attached to the land.
• The High Court found that this was a building lease, it was a condition of the lease that
the tenant build a house on the land and improve the land.
• The tenant was under an obligation to improve the land and build a house
• This overruled the presumption that the house was not attached.
Belgrave Nominees v Barlin-Scott Air-conditioning (Aust) Pty Ltd (1984) VR 947
MAIN AUTHORITY
• extent of the physical attachment;
• ease of removal;
• nature of the chattel, and its relationship to the realty;
• common understandings and practices;
• whether the attachment contemplated is permanent/indefinite/substantial or merely
temporary;
• the nature of the interest in the realty (if any) held by the attacher;
• the purpose of attaching the chattel (objective)
• subjective intention (including contract about ownership)
FACTS:
• Belgrave Nominees owned several buildings and entered into a contract with the builder to
have the buildings renovated
• Barlin-Scott was a subcontractor that was hired to install the new air conditioning systems
o The platforms were attached to the roofs of the buildings (bolted on) but the
chillers were not bolted on.
o They were vibra-sorb pads that were sitting between the feet of the chillers and the
platforms
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o When the chillers were operating they vibrated so these pads reduced the vibration
and thus noise
o The chillers were attached to the water systems (pipes going into the chillers)
o There were also electrical cables attached but the electricity had not been turned on
yet
• Before the renovations were completed the head contractor went into liquidation
• Barlin-Scott was in a contractual relation with the head contractor who owed them money
o Barlin-Scott, fearing that they weren’t going to get paid, decided to remove the
system
• Belgrave sought an order for the return of the air conditioners
o Argued that they were fixtures
• Why is this a property law case rather than an issue of contract?
o There was no contractual relationship between Belgrave and Barlin-Scott
HELD:
• Kaye J ‘Whether the intention of the party fixing the chattel was to make it a permanent
accession to the freehold is to be inferred from the maters and circumstances including the
following: the nature of the chattel, the relation and situation of the party making the
annexation vis-à-vis the owner of the freehold of the person in possession; the mode of
annexation; and the purpose for which the chattel was fixed’
o The chillers were connected to water pipes by means of 4 bolts and nuts so there
was a connection perhaps indirect with the building, such connection may be
described ‘as slight only’
o Nevertheless, even slight connection is enough to raise the presumption that this is
a fixture
The degree of annexation necessary is slight
o Onus of proof lies with Barlin-Scott to then show that these are chattels, not
fixtures and can be taken away
• 1. The reason why the annexation was slight was because there was a practical reason
associated with the running of the chillers
o This was the level of attachment needed for the chillers to run effectively
• 2. The chillers were integral to the building
o Kaye J ‘the very nature of the air-conditioning plants’ was that they were to
become an integral part of these modern office spaces
Integral to the renovation of these buildings
o Therefore, the object of annexation was to add to the building, permanently
attached these things to the land so that they become a part of it.
2.4.2 ATTACHED BUT NOT A FIXTURE
2.4.3 LEIGH V TAYLOR [1902]
Leigh v Taylor [1902] AC 157
FACTS:
• A deceased person had been a life tenant of the land
o She could not leave an interest in the land to the beneficiaries named in her will
• In this house there were tapestries displayed on the walls of the house
20
o They were attached to large pieces of canvas and then attached with nails to strips
of wood which were nailed to the walls of the house
o High degree of annexation attached to the building
• After the tenant died, there was a dispute between the beneficiaries and the holder of the
remainder interest as to who owned the tapestries
HELD:
• Presumption that because of annexation would be a fixture
• But the purpose if the annexation was not to improve the land permanently
o Practical reasons for attaching the tapestries to the walls in the way that they were
– this was how they needed to be enjoyed
Given their ornamental character, they could not have been affixed more
lightly
o Combined with the fact that it was fairly easy to detach them without doing
damage then the best interest is that the owner of the tapestries did not intend them
to be permanently added to the house
o They were there for her enjoyment during her life but when she dies they could be
removed.
2.5 EXAM PROBLEM SOLVING STEPS
• Step 1: What is written in the contract for sale?
• Step 2: Apply the presumption?
• Step 3: Work out the onus of proof.
• Step 4: Apply the objective intention test.
2.6 PROBLEM SOLVING SUMMARY
Always ensure you have done the follow two steps:
1. Degree of annexation:
a. Even a fairly low degree of attachment to building/ land amounts to
annexation
2. Consider the evidence regarding the object/purpose of the annexation
a. If the purpose was something other than to add to the land, then the item will
not be a fixture
b. If the landowner can shoe that items that were not attached to the land were
placed there with the intention to improve the land, then the items will be
fixtures
2.7 STUDY PROBLEM
Murray Ltd advertised a commercial office building for sale. Neryl inspected and decided to
buy. The contract executed by Murray and Neryl provided that Murray "agrees to sell the
land known as No 10 Bill St, Rockdale" for $150,000. The sale was settled, and Neryl
arrived to take possession. She was shocked to find the building in a different state from that
in which she had previously seen it. Murray had removed:
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(a) the carpets, curtains and light shades;
(b) fitted timber bookcases which had been nailed to the wall;
(c) a dishwasher that had been installed in a custom-built cupboard and connected
permanently into the plumbing in the staff amenities room.
Neryl estimated that the value of the items removed was $25,000. Murray refused to return
them. Advise Neryl whether she is entitled to the items removed by Murray. How could this
dispute have been avoided?
• Is any of this mentioned in the contract?
• What does the contract say? – on the facts it is unclear, in the absence apply the
general law tests
• Carpets – the presumption – draw a distinction between a rug and carpets are they
fixed, yes in some way glued – common practices you expect carpets to be there when
buying the house – onus of proof on those who assume they are chattels –
• What would an objective buy stander assume?
•
Generally, items which are affixed to the land become part of it (Holland). Thus, it is relevant
to consider whether the items removed from the property are fixtures or chattels, to determine
whether Neryl or Murrays have rights to the property. If deem chattels, M can remove the
items, on the other hand if the items are held to be fixtures N is entitled to the items as part of
her realty.
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