Table of Contents

LECTURE 1 – INTRODUCTION........................1
PROPERTY LAW – GRAND THEMES................................1
PROPERTY – WHAT IS IT?...............................................1
PROPERTY AS A LEGAL RELATIONSHIP............................1
PROPERTY SEPARATE FROM THE THING ITSELF..............2
PROPERTY INTERESTS.....................................................2
PRIVATE, PUBLIC & COMMUNAL PROPERTY..................2
JUSTIFICATION OF PRIVATE PROPERTY - THEORIES........2
CHARACTERISTICS OF PROPERTY....................................2
ASSIGNABILITY...............................................................2
CATEGORIES OF PROPERTY INTERESTS...........................2
REAL PROPERTY – NUMERUS CLAUSUS PRINCIPLE........2
DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY 3
CORPOREAL AND INCORPOREAL HEREDITAMENTS.........3
PERSONAL PROPERTY.....................................................3
CHOSES IN POSSESSION...................................................3
CHOSES IN ACTION.........................................................3
CHATTELS REAL.............................................................3
FIXTURES........................................................................3
DEGREE OF ANNEXATION...............................................4
PURPOSE OF ANNEXATION..............................................4
SUMMARY OF FIXTURE TEST..........................................4
STRUCTURE FOR FIXTURE ISSUE.....................................4
LECTURE 2 – PERSONAL PROPERTY: POSSESSION AND TITLE 4
WHAT DOES THE RIGHT OF OWNERSHIP EMBRACE?.......4
PROOF OF OWNERSHIP....................................................5
ACQUISITION OF OWNERSHIP..........................................5
POSSESSION.....................................................................5
ELEMENTS OF POSSESSION..............................................5
ATTRIBUTES OF POSSESSION...........................................5
FISHER – RELATIVITY.....................................................5
BAILMENT.......................................................................5
ELEMENTS OF BAILMENT................................................5
TYPES OF BAILMENT.......................................................5
INTEREST OF THE BAILOR...............................................5
OBLIGATIONS OF THE BAILOR........................................6
INTEREST OF THE BAILEE................................................6
OBLIGATIONS OF THE BAILEE.........................................6
SUB-BAILMENT...............................................................6
LECTURE 3 – FRAGMENTATION OF PROPRIETARY INTERESTS ?? 6
THE DOCTRINE OF TENURE.............................................6
FREE TENURES................................................................6

does it mean? Taylor (1937) 58 CLR 479

Lecture 1 – Introduction
Definitions Property Separate from the thing itself
Property Law – Grand Themes
 Moore v Regents of the University of California Moore v Regents of the University of California (1988)
 Think of property as a thing that may have a  “the term property is sufficiently comprehensive  “Being broad, the concept of property is also
number of rights owning to it (i.e an iphone) – to include every species of estate, real and abstract: rather than referring directly to a
not solely one person will have rights to the personal, and everything which one person can material object such as a parcel of land or the
entirety of the thing (i.e no ownership of own and transfer to another. It extends to every tractor that cultivates it, the concept of property
applications). species of right and interest capable of being is often said to refer to a bundle of rights that
enjoyed as such upon which it is practicable to may be exercised with respect to that object.”
1. Possession is nine parts of the law. place a money value.”
2. You actually don’t own anything, you own  It is every interest in real and personal property Property Interests
rights in things. that can be transferred for a monetary value (i.e
3. Various people can own different aspects of an iphone or the licence to use software on that 1. Ownership - highest form of property
property at the same time. iphone). 2. Possession – owner may not be possessor
4. The extent of your property interest is measured (rented)
by how many sticks you have in the bundle of ‘Property’ in different circumstances 3. Security interest –bank has an interest in the
sticks that is property. property by way of mortgage.
5. The dividing line between chattels and land is  Income Tax Assessment Act s136AA - Property 4. Leasehold Interest
fixtures. includes services
6. You are safe when you get registered - except  Commonwealth Constitution s51xxxi - In this Note: A number of people can have property in an object
when you are not – need to have a rule as to who context property does not include money - at the same time
definitively owns something. Mutual Pools and Staff Pty Ltd (1994) 179
7. It is a rush to the register. First in time is best. CLR155 at 195-196 Example: A owns a book – Owner Lends to B –
8. If the registration system works against you, you  but see Personal Property Securities Act s 10 – possession  C steals from B - C has
will be compensated - except when you don’t includes money possession  B and C subject to A’s interest
deserve it. (Won’t be compensated if fraudulent) = Fragmentation of proprietary interest
9. Under the PPSA possession can trump Property as a legal relationship
ownership. Private, Public & Communal Property
Welling - 3 parties in a relationship:
Property – What is it? a. The State  Private property predominates in western culture
b. the person the State has concluded is the holder  Even if property owned by State it is owned in
 Noun: My “property” includes the following - ie of a specified form of property
same way as private owners
book, car and land c. any other person whom the State has concluded
does not hold the specified form of property
 Communal Property - Mabo decision
 Legal relationship: Person>thing; person>land
o I have “property” in that land – what Justification of Private property - Theories
Victoria Park Racing and Recreation Grounds Co Ltd v
 and environment to detriment of the whole  Incorporeal Movable (rights in goods)
The Occupation theory  Incorporeal Immovable (rights in land)
Characteristics of Property
Property and Sovereignty; Cohen, Morris R. 13 Cornell Real Property – Numerus Clausus Principle
L. Q. 8 (1927-1928) National Provincial Bank v Ainsworth [1965]
 The party who is original discoverer and  “before a right or interest can be admitted into Brendan Edgeworth The Numerus Clausus Principle in
occupant is entitled to dispose of this property the category of property, or a right affecting Australian Property Law (2006) 32 Mon LR 387
 Has echoes in land law with adverse possession property it must be definable, identifiable by
and in relation to the best right to possession of third parties, capable in its nature of assumption ‘Closed list rule’ – landowners are not at liberty to
chattels by third parties, and have some degree of customise land rights – they must fit into established
 Today few things acquired by being found but permanence or stability.” pigeonholes and the law permits only a small and finite
rely on the labour of others or by sale and number to be considered as an in rem property right (as
purchase 1. Definability distinct from an in personam right) even if a novel
2. Identifiability interest is desirable and practical and has been agreed
The Labour theory 3. Assignability between the parties
4. Durability
 A person is entitled to the full produce of their  In rem means a right with respect to the property
labour to encourage labour and productivity Assignability  In personem is right with respect to the person
 Came from middle class desire to overcome o Two separate transactions – one
hereditary ownership of land Not accepted as a test in all cases supporting the other.
 But difficult to separate efforts of labour
contributions and how to deal with ancillary Note: Australian Capital Television Pty Ltd v EXAMPLE
requirements ie police who protect the peace but Commonwealth (1992) 177 CLR 106 - may indicate that BANK  100k Loan JOE.B
who do not produce things lack of assignability is suggestive against a finding of (In Personum) JOE. B  agrees on % Int over a term
property BANK
Idealist Personality theory
In re Potter [1970] VR 352 – Beneficiary under a will JOE. B owns a property.
To protect the deal, the BANK will take a ‘right’ from
 A person’s ability to act as a free personality
Hamilton v Porta [1958] VR 247 – Tenant does have an that property in the form of a mortage (In Rem)
requires the ability to have do minion over
property assignability right
Numerous clausus says that property owner cant attach
 A person should be able to deal with his/her
Categories of Property Interests different rights to this land.
property freely

The Economic theory Hallmark of Common Law  Compare with flexibility of contract law

 Private property creates the environment where Division between Real Property (land or realty) and Reasons for principle of numerous clausus:
maximum productivity is created under the Personal Property (personality) is a
profit motive - corn analogy  to maximize use of land by removing
 Involves a belief in the distributive and - compare - feudal obligations that impeded efficient use of
controlling influence of the market land
 Market is not a perfect vehicle and profit motive Civil Law (European)  to simplify conveyancing
will create an oversupply; under-supply  to support the science of property law
or monopolies  Corporeal Movable (goods)
 May lead to exploitation of people  Corporeal Immovable (land) Query if these policy issues as important in modern world
where we have Torrens system of land registration. below
(Torrens- if it js not registered we aren’t interested) Fixtures
Choses in Possession
Distinction between Real and Personal Property  Tangible personal property What is a fixture?
 Synonymous with goods and chattels  A chattel (personal property) becomes real
Two Types of actions: property when it becomes a fixture.
1. Real actions - where the thing (‘res’) could be Fisher - 3 characteristics:  Definition: ‘an object which was once a chattel,
recovered 1. Tangibility but which has become, in law, land because it
2. Personal actions - where the court could order 2. Capable of physical acquisition has become affixed to the land’
the defendant to return the thing or provide value 3. Movable  Eg. Shed delivered and then was built and
in money - concreted to land then becomes fixture
Choses in Action
Only Freehold interests in land (estate in land of uncertain  Two tests:
duration) in land could be the subject of real actions - real A residual category - Colonial Bank v Whinney a. Degree of annexation
property (1886) 11 AC 426 at 440 b. Purpose of annexation

Corporeal and Incorporeal Hereditaments Rich J in Loxton v Moir (1914) 18 CLR 360 at 379 Degree of Annexation
“a right enforceable by action. It may also be used to
Sub-categories of Real Property describe the right of action itself, when considered as part  If a chattel is attached to the land, other than by
of the property of the person entitled to sue. A right to sue its own weight, it is prima facie a fixture even if
1. Corporeal hereditaments - actual physical things for a sum of money is a chose in action and is a the degree of annexation is very slight.
over which ownership could be exercised eg proprietary right.”
trees, dirt, buildings Conversely:
2. Incorporeal hereditaments - intangible, non Characteristics - Fisher:  If a chattel is only attached by its own weight,
physical rights affecting the land eg easements, 1. Enforceability - by the right holder against the prima facie the chattel is not a fixture, even if it
profits a prendre (a right to take from the land) duty holder has become embedded in the soil.
2. Incorporeal and intangible - an immaterial legal
Easement - nonpossessory right to use and/or enter onto object Purpose of Annexation
the real property of another without possessing it. 3. Bare right - without any occupation or
enjoyment Holland v Hodgson (1872) L.R. 7C.P.328
Personal Property eg entitlement to recover debt, shares, patents  ‘it is a question which must depend on the
circumstances of each case, and mainly on two
‘Chattels Personal’ Chattels Real circumstances, as indicating the intention, viz;
1. Choses or things in possession (the physical the degree of annexation and the object of
thing) Leasehold annexation’
2. Choses or things in action (intangible such as  Unique status – dual nature
insurance or software)  Leasehold interest – personal property Butt Land Law 5th ed 2006 para 303
 Historically treated as contracts  ‘Under the present rule, whether an item has
Note: s3 Sale of Goods Act 1896 - deals with become a fixture depends primarily on the
transactions relating to goods defined as all chattels Property Categories (Basic) intention with which the affixer put the item in
personal other than things in action or money place. If the affixer’s intention was the better
use or enjoyment of the land, in the sense of
‘Chattels Real’ furthering the use to which the land is put,
3. Chattels real – leasehold – anomaly discussed then the item is likely to be a fixture; but if the
 intention was the better use or enjoyment of the prima facie answer can be remove without damage
item itself (as distinct from the land ), the item is Step 2: The degree of annexation also determines upon
likely to be a chattel. Of course, the intentions whom the onus lies to prove the object has: Case Law – Landlords Fixtures
may overlap; it then becomes a question of a. remained a chattel
identifying the dominant intention.’ b. become a fixture  Vesco Nominees Pty Ltd v Stefan Hair Fashions
Step 3: Look at the intention of parties and all other Pty Ltd (2001) Q Conv R 54-555 – restaurant
Summary of Fixture Test circumstances to determine purpose of annexation balcony
 Curtin v Meadlow Holdings Pty Ltd [2001] Q
Chattel: An object which is attached to the land only by Relevant tips Conv R 54 552 – cold room
its own weight is not part of the land unless the  Was it attached only to assist in use or
circumstances are such as to show that it was intended to Lecture 2 – Personal Property: Possession and
be part of the land; and the onus of showing that it was so enjoyment of chattel i.e. to keep it steady – may
Title
intended is on the person who has asserted that the tend to suggest chattel
object has ceased to be a chattel.  incorporated into building – may suggest fixture
Ownership
 It will be difficult to remove without damage – Welling p35 – “Holds possession of the thing which no
Fixture: Conversely an object which is fixed to the land,
may tend to suggest fixture one is at liberty to interfere with.”
even slightly, is considered to be part of the land unless
the circumstances are such as to show that it was intended  The party who attached intended it to be a
fixture – primarily use objective test, but  If there is no condition attached to the
to continue as a chattel; and the onus of proof is on the
expression that something belongs to somebody
person who is trying to show that the object has remained subjective issues i.e., function and length of time
than it is an absolute and that absolute is defined
a chattel. object intended to be affixed may be relevant. as unusual.
Explanation of purpose of Annexation Test: What does the right of ownership embrace?
Right to remove a fixture –
‘Under the present rule, whether an item has become a
1. Vendor and purchaser: all fixtures pass to the
fixture depends primarily on the intention with  An owner has a residuary right in the thing
purchaser unless otherwise provided in the
which the affixer put the item in place. If the owned ie ownership is the right once one
contract (i.e., typical contractual provisions –
affixer’s intentioœn was the better use or subtracts the totality of rights one can have in
‘items excluded in sale/improvements
enjoyment of the land, in the sense of furthering regard to real and personal property ie
included in sale’)
the use to which the land is put, then the item is possession, security interest
likely to be a fixture; but if the intention was the
2. Mortgagor and mortgagee: mortgage of land
better use or enjoyment of the item itself (as Knapp v Knapp (1944)
gives mortgagee security over all fixtures
distinct from the land), the item is likely to be a “The general right of ownership embraces subsidiary
chattel. Of course, the intentions may overlap; it rights, such as exclusive enjoyment, to destroy, to
3. Landlord and tenant: A tenant who attaches
then becomes a question of identifying the alienate or to alter, and, of course, the right to maintain,
fixtures to land donates them to landlord except
dominant intention. and to resume and recover possession from other
for trade fixtures e.g. Printing press for tenant
Purpose of annexation test: Holland v Hodgson persons.”
business. Can remove if it can be removed
1. Intention -
without damage.
2. Better use or enjoyment of the land -  i.e Ownership embraces these rights to have
3. Dominant Intention exclusive enjoyment – if you have the rights to
 Trade fixtures are fixtures attached for the
purposes of the business - e.g. machinery - will exclusive enjoyment to a piece of property, and
be interpreted broadly – in favour of tenant you have the right to destroy it, someone other
Structure for Fixture Issue  But if ornamental or domestic fixtures - will go than you does not that his right, this ability to
to the landlord - but interpreted narrowly - destroy something is a element of
Step 1: Look at the degree of annexation - this provides a usually tenant can remove if perfect in itself & ownership/assists us in providing ownership.
  Ownership has certain indicators to help fragmentation of ownership and possession of
understand who is an owner. The Tubantia (1924) p78 – passenger ship which sunk. personal property between those parties.”
Parker v British Airways Board (1982) – lost and found
argument: at what point do you get possession. Bracelet  Re s Davies and Co- Where delivering personal
Proof of Ownership case. chattels to another in trust or by way of a
contract
 Possession is prima facie evidence of ownership. Attributes of Possession
Subject to contrary evidence. Elements of Bailment
 Boat and car rego – do not provide proof of 1. Exclusive
ownership but some evidence.  “exclusiveness is essential. That, of course, does Bailor – Owner
not mean that several persons may not in Bailee – Possessor
Acquisition of Ownership concert have and exercise that exclusive
possession against the rest of the world.” 3 Elements
1. Original acquisition Moores v Bourke (1919) 1. Actual or constructive delivery of goods by
bailor to bailee
Creation of new property ie copyright, acquisition of 2. Indivisible 2. The voluntary or consensual assumption of
ownerless things eg wild animals, finding something  no provision for present and future interests as in possession of goods by the bailee
abandoned (Copyright – have to ensure the thing you real property 3. The bailee is knowingly in possession of those
generate is original). goods.
3. Possession is prima facie evidence of ownership
2. Derivative acquisition  possession is a relative title ie may not succeed Types of Bailment
against owner but be enforceable against
Sale (note Nemo dat quod non habet rule s24(1) SGA), subsequent possessor Coggs v Bernard 92 ER 107
gift, assignment, operation of law - bankruptcy, death,  Gratuitous safe keeping eg dog
accession, commingling, destruction.  Gratuitous loan eg car
Fisher – Relativity  Delivery of goods for carriage or services on the
Possession goods without reward
 If I have possession of a chattel (borrowed a  Commercial hire eg hire of a chain saw
computer with authority), then someone takes  Pawn or pledge eg pawn shop
 “possession denotes a relationship between a
the computer without any authority. Then there  Delivery of goods for carriage or services on the
person and some material object. It is a relation
are 3 elements: possessor 1, possessor 2 and goods for reward eg courier service or delivery
subsisting in fact. The “right” of the possessor
owner. of car for repairs or service
to the chattel (or object) arises out of the factual
 Owner will always have a superior right to
situation.” Button v Cooper (1947).
possession – dependant on the contractual Or another categorization is simply: Gratuitous (nothing
 Possession can provide a root of title
relationship between the parties. contractual) or Commercial bailment
 If a party has possession of a chattel it is fair to
assume (subject to other evidence) that they have
Bailment Interest of the Bailor
ownership of that, prima facie.
 Possession and ownership are two different
 Bailment is when an owner of personal property  During term of bailment the interest of the bailor
things.
gives possession to some other party to care for is qualified by the bailment
that PP for a period of time.  Bailor has a reversionary interest – The terms of
Elements of Possession
the arrangement is the bailee will hold the item
 Definition – Fisher: “a legal relationship but will always return to the bailor.
1. Control: physical element requiring some
between two parties which centres upon tangible  During bailment at will (no time stipulation) the
degree of power over goods
personal property (goods), and on the bailor has immediate right to possession.
2. Mental element: an intention to possess
  If bailment is for a term (with time stipulation) o Pitt Son and Badgery Ltd v Proulefco
the entitlement is suspended when that term (1984)  Spiritual- Frankalmoin - eg perform prayers for
ends. Unless term is not stipulated, the bailor has  Duty to return goods - Jackson v Cochrane the deceased lord
rights to possession immediately.  Duty to retain possession  Knight Service - provision of soldiers for battle
 Bailor can deal with his or her interest by  Serjeanty – supply of soldiers and personal
transfer, gift etc Sub-Bailment services ie King’s butler; steward; swordbearer
 Socage - most common “ the great residuary
Obligations of the Bailor  On voluntarily taking possession of the goods by Vendor Purchaser
the sub-bailee knowing of the existence of the
Commercial Bailment head bailor - creates a legal relationship between
Prior to K Legal /Equitable Fee 0
 Bailee has a possessory interest in the goods Simple
head bailor and sub-bailee without necessity for
carved out of the bailor’s interest contract Execution L title (in trust) for E (if K unconditional)
 If the bailor recovers the property in breach of So… purchaser
the bailment the bailor may be subject to an  An exception to privity of contract concepts
action for trespass or conversion Completion Bare Legal title Equitable fee simple
 Sub- bailee has the same duties as original bailee
 On expiry of bailment bailor is entitled to to bailor
restoration of the goods or direct bailee to Also note… Registration 0 Legal/Equitable fee
deliver goods to a third party  Bailee needs consent for sub-bailment which simple

may be express or implied by circumstances – as tenure” -provision of produce or cattle

Gratuitous Bailment bailee has duty to retain possession.
 Have right to bail goods, ie are they the owner or  Unfree Tenure – villeinage – no certainty of
 If no consent then bailee has strict liability for what services required
have possession allowing sub-bailment loss.
 Make good damage or injury caused by faulty
goods
 Probably duty to warn of potential hazards in
Lecture 3 – Fragmentation of Proprietary
case of gratuitous loan
Interests ??
Interest of the Bailee
The Doctrine of Tenure
 Bailee has a possessory interest in the goods
1066 - William the Conqueror conquered the Saxons in
carved out of the bailor’s interest
England
 If the bailor recovers the property in breach of
the bailment the bailor may be subject to an Fuedal Ladder
action for trespass or conversion
 On expiry of bailment bailor is entitled to The King - ultimate owner of all land
restoration of the goods or direct bailee to
deliver goods to a third party  No allodial land in England ie there was no
land that was not held from the king or through
Obligations of the Bailee any lord (ie absolutely owned land
 In Australia no allodial land as ultimate owner
 Subject to contract is the Crown and persons own estate in land ‘of
o Jackson v Cochrane [1989] 2 Qd R 23 the Crown’
 To use reasonable care in relation to goods
o Jackson v Cochrane Free Tenures