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

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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.