Property Law Principles - Concepts of Property

PROPERTY LAW PRINCIPLES CONTENT - Terminology - Topic 1 Concepts of property - Topic 2: Ownership and Title to Real Property QUESTIONS - \(2) If yes, what kinds of rights and who should have the entitlements that attach to the property label. The right to how a thing can be used s...

PROPERTY LAW PRINCIPLES CONTENT - Terminology - Topic 1 Concepts of property - Topic 2: Ownership and Title to Real Property QUESTIONS - \(2) If yes, what kinds of rights and who should have the entitlements that attach to the property label. The right to how a thing can be used should be vested fully into it's exclusive owner, including extending the property's interest to others in full, equal, lesser and temporary capacity - What is the nature of the right to property? The right to property is a Bundle of rights, the extent of the rights relate with the person\'s relation to the things, which can limit or exclude their interest in the item, thus their ability to use it. ANS= **REMEMBER** Property is NOT 'the object or thing itself' that is capable of being owned. Property is the rights that can be exercised in relation to 'the object or thing' - Against whom can the property right be enforced? Against the State, Holders of interest and third parties. - How was the property right created? The right of property was created with the law, as without laws there is no property, only things.. - Can you list the rights that would indicate a proprietary interest identified by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141? - Do you understand what is meant by the 'bundle of rights' metaphor? As property rights are not created equal, the collection of specific rights one has in relation to a thing can be described as "a bundle" when talking about property rights overall. - Do you understand the meaning of the terms: rights in rem and rights in personam? In rem is enforceable against everyone whereas in personam is enforceable against the parties of the contract. - Can you explain the difference between proprietary and contractual rights? Proprietary rights are the relationship between individuals and goods, contractual rights encompass all considerations of a contract. Proprietary rights can overlap with contractual rights, contractual rights can delegate certain proprietary rights in relationships such as leases. However Proprietary rights can exist individual of a contract PRELEC 1\. DEFINING PROPERTY consider the differences between - private and non-private property rights - property rights as compared to other rights - classifications of property interests 1.1 Ownership and other terms 'Ownership' is having a bundle of rights in relation to a thing, whilst words such as \'possession\' or \'title\' entail different proprietary rights and interests. Each with different limits to a person\'s proprietary rights and interests. "LECTURE" **Terminology** - Estate (in Fee simple) - the extent, duration of, and an interest in land - Fee Simple - Most complete or greatest ownership in land (effectively total ownership) - Lease - s landlord's transfer (leasor) of a lesser interest to a tenant (Leasee) - Mortgage - The borrower's (mortgagor) transfer of interest in land as security for a load advanced by the lender (mortgagee). - Easement - A right over a certain land (the servient tenement) for the benefit of certain other land (the dominant tenement) - EX"allows someone other than the owner to access and use a section of the owner\'s land. It can also restrict how the owner can use that section. Common easements include: the right to walk across land. for the supply of utilities like water, electricity, gas." - Hereditaments (2 Types) - Corporeal Hereditaments - Can be Inherited - Tangible real property, Physical things over which ownership is exercised. For example, land, buildings, minerals, trees. - Incorporeal Hereditaments - Cannot be inherited - Intangible real property.Rights associated with the use of the land as opposed to physical things. For example, easements, rights of way, profits a prendre. - Proprietary rights -Rights of property/rights of ownership. - The holder generally has the free disposition of his/her property. - Title to land (ownership): - Title - the right to ownership of property (the best right to possession). - Good title - the ability to resist any claim for possession and ability to recover property from dispossessor. - Possession - Visible power or control over something, as distinct from lawful ownership. - Possession - generally good against all the world except the true owner. **TOPIC 1 Concepts of property** Property is characterised by the notion of excludability. A property is a legal, political and social institution, as what constitutes as a property right is subject to continuous change, for example the dead notion that slaves are property. TYPES OF PROPERTY +-----------------------------------+-----------------------------------+ | **REAL PROPERTY** | **PERSONAL PROPERTY** | +-----------------------------------+-----------------------------------+ | Land | Goods | +-----------------------------------+-----------------------------------+ | Airspace | Shares | +-----------------------------------+-----------------------------------+ | Mineral Resources | Intellectual Property | +-----------------------------------+-----------------------------------+ | Encumbrances | | +-----------------------------------+-----------------------------------+ | Rights attached to land | | | | | | EX. Native title rights | | +-----------------------------------+-----------------------------------+ MEANING OF PROPERTY 1. Bundle of rights There is no consistent definition, Property law is the law relating to things such as the rights that entitle people to them, property is referred to a **"Bundle of rights"** the largest of which being fee simple ownership of an estate **Case**: Property as a relationship between a person and a thing See **Moore v Regents** of the University of California at 509-510: "Rather than referring directly to a material object such as a parcel of land or the tractor that cultivates it, the concept of property is often said to refer to a bundle of rights that may be exercised with respect to that object." 2. Statutory definition (queensland ex) Acts Interpretation Act 1954 (Qld) s 36: 3. Judicial definitions EX See **Moore v Regents** of the University of California at 509-510: "Property includes every species of estate, real & personal, and everything which one person can own & transfer to another." "Property extends to every species of right & interest capable of being enjoyed as such upon which it is practicable to place a money value." 4. The Nature of property REMEMBER Property is NOT 'the object or thing itself' that is capable of being owned. Property is the rights that can be exercised in relation to 'the object or thing' 5. Characteristics of property \(i) Is there a connection between property and value? Consider: is it possible to have property in a thing that is worthless? Yes, consider enyoment \(ii) Is property a legally recognised relationship between a thing, its owner and society in general? Yes Property is the legal relationship and not things. **The most important concept in Property** is that property is a person's right to a thing (legal relationship) not the thing itself, as ruled within ***Yanner v Eaton*** (1999) 166 ALR 258. \(iii) Is law necessary for the recognition of private property? (Bentham) "Property and Law were born together and die together. Before laws were made there was no property, take laws away and property ceases": Bentham. Property as a legally **enforceable** relationship **between**: The **State**: which recognises the holder of the specified property right. \(b) The person recognised as being the **holder** of a specified form of property right: (The State suppresses third parties rights to the recognised holder of property.) \(c) **Third parties**: anyone not recognised as holding the specified form of property. \(iv) Is property a collection of rights? + Land interest characteristics Property in a thing is the rights, privileges and powers that a person has in the thing. The characteristics/rights of Property Interests Case: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. - - - -Blackburn J \(v) Can property in a thing be subject to different types of proprietary (ownership) interests? Property can be the subject of multiple interests, the fragmentation of proprietary interests essentially divides rights amongst a number of users. For example some fragmented interests in land: A owns one hectare of land -- A is the owner in fee simple. B leases A's house: B is a leaseholder in possession. C holds a security interest over A's land -- a mortgage. D a neighbour uses part of A's land to access her property (easement). E enters A's property to take the timber growing there (profit a prendre). EX... Ownership - highest form of property. Possession. Security interest. Leasehold Interest. \(vi) Is property ownership a perpetual right? Yes with an exception of leases. It is perpetual through transmitting ownership via succession ENFORCEABILITY OF PROPRIETARY INTERESTS Rights in Rem: - Proprietary rights: rights of property in the thing (the land) itself. - Property rights are enforceable against third parties - "the whole world". Rights in Personam: - Personal obligations or contracts between the parties. - Enforceable against the person who granted the right - the doctrine of privity of contract. - Not enforceable against third parties. - See King v David Allen CREATION OF PROPERTY RIGHTS IS OWNERSHIP THE SAME AS A PROPERTY RIGHT Not necessarily... The distinction comes from certain rights held by an owner that do not belong to a person with a right to possession, or full ownership. - - - - - - - the power to transmit, to devise or bequeath; - the absence of a term to one's ownership rights, i.e. the potential to last indefinitely; - responsibilpity for harmful use; - liability to execution; and that - there will be rules governing the reversion of lapsed ownership rights. - Professor A M Honore, "Ownership" (1961) PROPERTY DISPUTE CASE LIST - King v David Allen \[1916\] 2 AC 54. - Victoria Park Racing v Taylor (1937) 58 CLR 479. - Milirrpum v Nabalco (1971) 17 FLR 141. - Yanner v Eaton (1999) 166 ALR 258. - Moore v Regents of the University of California (1990) 793 P 2nd 479 - National Provincial Bank v Ainsworth \[1965\] AC 1175. TOPIC 1 OVERALL SUMMARY  Property rights are: - Definable. - Identifiable (by 3rd parties). - Assignable (can be transferred to 3rd parties). - Durable (some degree of permanence).  **TOPIC 2: Ownership and Title to Real Property** Title to Land \(i) What is land? \(ii) Fixtures \(iii) Mistake of title and Encroachments MS© WHAT IS LAND 1\. Statutory definition Interpretation Act 1984 (WA): 2\. Land as a legal concept "*Cuius est solum eius est usque ad coelum et ad inferos*" To whomsoever it belongs, it is his all the way to the heavens (and all the way to hell) This concept's modern meaning means land extends below and above it's surface area to a point. SEE PRETRI PREP FOR CASES HEAVENS - Davies v Bennison. - Kelson v Imperial Tobacco. - Wollerton & Wilson v Richard Costain. - Jaggard v Sawyer \[1995\] 1 WLR 269\@278. - Graham v KD Morris. - LJP Investments Pty Ltd v Howard Chia (1989) 24 NSWLR 490. - Bendal Pty Ltd v Mirvac Projects (1991) 23 NSWLR 464. MS© HELL ENJOYMENT - Mining Act 1978 (WA). - Petroleum and Geothermal Energy Resources Act 1969 (WA). - Atomic Energy Act 1953 (Cth). WATERS A landowner's rights in relation to waters are knows as Riparian Rights, Riparian means "bounded by rivers." Such rights include water usage and water boundaries. The rights are largely state based, the common law position is that there is no ownership of the water itself, however legislation replaced common law ruling with statutory rights, thus all water is generally vested in the crown's rights of the state. 1994 COAG (Council of Australian Governments) agreed on a water reform framework. In 2004 National Water Initiative (NWI) provided high-level policy on water management. (Note: that the NWI is not legislation. It relies on States to legislatively implement these policies. ) Some Legislation: \(i) Usage of Non-Tidal Waters \(ii) Usage of Tidal Waters At common law no private riparian rights existed in relation to tidal waters. WATER BOUNDARIES Non-tidal water boundaries: Rivers and Lakes Note, tidal and non-tidal water boundaries could be ambulatory. WATER BOUNDARIES COMMON LAW: ad medium filum rule. WATER BOUNDARIES STATUTORY LAW TIDAL WATER BOUNDARIES ACCRETION AND EROSION\ There is a common law doctrine of accretion and erosion where a gradual and imperceptible natural shift of river/shorelines causes a corresponding shift to be made with the boundary of the land Accretion case list - AG of Southern Nigeria v John Holt - The Southern Centre of Theosophy v SA. - Verrall v Nott (1939) 39 SR (NSW) 89. LAND USE RESTRICTIONS - Few restrictions were imposed by the common law on a landowner. - However, laws regulate activities and uses on privately owned land and impact on the rights of a private landowner in Queensland. These laws include the: - Planning Laws. - Environmental Protection Laws. - Heritage Laws. - Aboriginal Cultural Heritage Laws. Note: no detailed study will be undertaken of these laws in Property Law Principles.