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SUMMARY FLOWCHARTS
Classification of Property
Difference between property and contractual rights:
Property rights Contractual rights Confers a right over a thing Enforceable against third parties/rest of the world A property right precludes anybody (apart from person with better title) from interfering with property rights Property remedies prevent interference with rights over the thing o Eg right to remain on the land “no two parcels of land are the same”
Not a right to a thing, right against a person Contractual right is only enforceable against other party to a contract A contract right entitles party to sue in the event of breach of contract by the other party Range of personal remedies Personal right against other party to get damage for breach of obligation Remedy: to make good damage
Difference between lease and licence:
Lease Licence
Conferral of exclusive possession Limited amount of time Right in rem
A right or permission to do or use something Absence thereof
Categorisation of Property Objects
Real Property (Land)
Corporeal Forms 1. Land, 2. Fixtures,
- Native Title, 4. Territorial sea and sea-bed
Incorporeal forms: 1. Easements (incorporeal rights over land) 2. Profits a prendre 3. Security interests/charges 4. Carbon sequestration
Chattels Real (Lease)
Types of Leasehold interests 1. Fixed Term,
- Periodic 3. Tenancy at will 4. Tenancy at sufferance
Personal Property (Goods/…)
Corporeal forms: 1. Goods/Chattels/ Choses in possession
Incorporeal forms 1. chose in action – legally enforceable right against personal property eg debt, shares, bank account
Forfeiture
(property remedy)
- Right to L to terminate Lease to T due to breach of express condition
- For covenants, no common law right of forgeiture
- If breach, lease is "voidable"
- Damages for past breaches of covenant
Repudiation
(contract remedy)
- ordinary contract law can apply to leases including repudiation doctrine
- For lease term:
- must be essential terms
- T refuses or is unable to perform essential terms
- L can recover damages for loss of future benefits
- L obligated to mitigate damages
Rights and Duties of Landlords and Tenants Sources of rights and duties = o Express covenants o Implied covenants from statute and common law Covenants o Lease contracts usually sets out rights and obligations o Also set out by statute and common law
Implied Covenant at Common Law:
Implied Covenant by Statute:
Terminating a lease for breach
To provide tenant with quiet enjoyment
Non-derogation from Grant by Landlord
Duty of reasonable repair by Landlord
Duty to exercise reasonable care by Landlord
Tenant to use premises in a tenant-like manner
Transfer of Land Act 1958 (Vic) - s 67
Residential Tenancies Act 1997 - s72, s40, s62, s
CONCEPT OF PROPERTY
Legal meaning of property today
“Property is thus ubiquitous and complex, socially important and controversial”… Any general notion of property is notoriously elusive” JW Harris, Private and Non-private Property: What is the Difference? CB1. Property means different things to different people and the concept is used in different contexts Property ownership = social, economic power, power to dictate the rules
Legal meaning of “property”
Layperson concept: “property” is an object or thing Legal Concept: The term “property” refers to the many different kinds of relationship between a person and an object , object rather than the object itself (CB1.5), also Yanner v Eaton (CB1.6) Property is a composite of legal relations that holds between persons that incidentally involves a "thing." http://www.yalelawjournal.org/the-yale-law-journal/essay/what- happened-to-property-in-law-and-economics?/ Concept: Fragmentation – different property rights can attach to the same object (CB 1.9) Concept: Property law as an organising principle for allocating rights to land and resources in a society. Key Concept: a property right is a right in rem (Latin: against the thing) The holder can enforce their property right in rem against the world Your right is in the thing without much regard to the people against whom that right might be enforced Contrast: rights in personam (Latin: right directed to a person) eg contract law Enforceable against the person who is privy to the relationship only Your right is against the person without much regard to what they might have Eg contractual right or a debt
Other essential features of property? Property confers upon the holder a ‘bundle of rights’ which refers to the aggregate of rights associated with property enforcement (this metaphor was originally outlined by Wesley Hohfeld and AM Honore (CB 4)) Features are contentious and not definitive or exclusive to property rights
What is a property right?
Common law definition: o “There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” (Blackstone Commentaries on the Law of England) (CB 3) Circa 1765 1. A physical thing 2. Exclusive (despotic ownership) By 19th^ Century acceptance of property in intangibles eg trade marks and trade secrets Exclusive possession cf public land
20 th^ Century Wesley Hohfeld "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) 23 Yale LJ 16 and "Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1917) 26 Yale LJ 710 Conceptualised property as a set of legal relations (thus no need for a tangible object) o rights privileges and powers Dominion need not be fixed or absolute "Rights of Exclusion and Immunities Against Divesting" (1960) 34 Tulane Law Review 453, A M Honoré o Rights in rem survive the changes in the identify of persons against whim the rights hold
Other essential features of property
a) Dominion (right to use) o Control exercised by a person over an object o Dominion denotes some legally authorised power (b) Exclusion o To exclude others from: (a) enjoying same rights; or (b) interfering with the exercise of rights o State can enforce exclusion o No longer “total exclusion” (c) (external) Things o Things must be separate and apart from ourselves o Physical things (land and chattels) o Intangible things (shares, patents and trademarks) (d) External : demarcation of property/boundaries Property can be defined with reference to its features, such as: o (a) transferability of right Most rights are transferable (includes personal rights): o (b) enforceability of right against other persons right in rem Almost universal acceptance: “A real right, such as ownership, is as every first year law student knows, enforceable against the whole world.” ( XZS Industries v AF Dreyer (Pty) Ltd (2004 (4) SA 186 (W) 196F/G) o (c) Right to alienate a thing Cf Non-assignable property rights (non-assignable lease) Native title rights are not transferable( Millirrpum) o (d) Value market value sentimental value negative value? (toxic chemicals) Legal recognition o Property rights must be recognised and legally enforceable. o ‘Property and law are born together and die together. Before laws were made there was no property. Take away the laws and property ceases’(Bentham) o It is a legal construct: there is no property in absence of a legal system o Legal identity of property depends on legal system in which it is enforced: Common law, Equity or statute
State conditions for deprivation – public interest + compensation Allows control of the use of property in the general interest by the States Kyoto Protocol on global warming Carbon sequestration interests Primer on Native Title Definition of Native Title: Rights to land held by Aboriginal Australians and Torres Strait Islanders, rights include includes hunting, gathering, or fishing. In Mabo the HCA declared that native title has been a part of the common law since it was first introduced to Australia in 1788. But the declaration was not made until 1992. Mabo v State of QLD (2)(1992) 175 CLR 1 Key notes ^ Mabo (2): native title recognised^ by^ the common law despite the fact that it did not fit the Western definition of property Native title: interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by indigenous inhabitants (Brennan J) NT Act Section 223(1) includes hunting, gathering, or fishing, rights and interests. Native title (special form of property) has special features: Native title is inalienable; Not transferable to others (transferred from generation to generation or to Crown ito its pre-emptive right); Native title is vulnerable, as it can be extinguished by the Crown’s exercise of radical title Traditional belief of belonging to land
Extinguishing Native Title
NT is extinguished or reduced if the Crown lawfully exercises its sovereignty to do so or grants inconsistent rights to itself or others.
Any new rights lawfully granted will take priority over native title.
Yanner v Eaton (1999) 166 ALR 258 Facts: ^ Facts: In 1994 Yanner (famed Aboriginal activist) used a traditional harpoon to catch 2 juvenile crocodiles for food under NT rights Charged with once count of taking fauna without a permit contrary to the Fauna Conservation Act 1974 (Q) (FCA) Def claimed NT rights extinguished by FCA Magistrate held Yanner not guilty The informant (police officer) appealed. Court of Appeal (Qld) set aside the Magistrate’s decision By Special Leave, Yanner appealed to the High Court S 7(1) of the Fauna Conservation Act 1974 (Qld): “All fauna, save fauna taken or kept otherwise than in contravention of this Act, during an open season with respect to that fauna, is the property of the Crown and under the Control of the Fauna Authority”.
Absolute beneficial ownership must extinguish (all) inconsistent rights
Issue: ^ All fauna is the “property” of the Crown
Held: ^ HELD: Property is not an object, but a reference to a degree of power that the property relationship confers HELD s7(1) is not intending to vest ownership in objects. Rather intends to refer to aggregate of various rights of control including the right to establish a regulatory regime HELD: this is less than full beneficial or absolute ownership HELD: NT to hunt crocodiles not extinguished
Key notes ^ Why Crown “property” is not equivalent of full or absolute ownership Difficulty to identify what fauna is owned by Crown Meaning of full and beneficial ownership of wild animals? Wild animals at common law: limited property rights Property in Act cannot be equated to property of domesticated animals Ownership connotes right to have and dispose of possession (fauna outside possession and disposition) Reasons for vesting fauna in Crown: desirability to provide for some vesting to create royalty system Comment: State holds fauna in sense of imperium (and not in sense of dominium) : guardianship of resources CB1.7 “referring to the conclusions of Professor Kevin Gray who stated that much of our ‘false thinking about property stems for the residual perception that “property” is itself a thing or resource rather than a legally endorsed concentration of power over things and resources…’ and that (the “ultimate fact about property is that it is an illusion’ and that talk of property is merely talk without substances because upon closer inspection it is a concept which vanishes into thin air.
Summary Property is about a relationships between people and objects
Property law helps to order these relationships
Objects are usually tangible, expanded to meet new social needs and moral perspectives
Property rights are in rem cf in personam
Bundle of rights include right to use, exclude, transfer, alienate
Strict definition of property illusory ( Yanner v Eaton )
Property rights can only exist if there is a legal and social framework to support and enforce (Bentham – property and law live and die together)
