University of Adelaide PROPERTY LAW 1511 Topics: 01 – An Introduction to Property Law 02 – Torrens System and the concept of Indefeasibility 03 – The Doctrine of tenure and Adverse Possession 04 – Native Title 05 – Doctrine of estates, fixtures and the issue of waste 06 – Leases 07 – Subsidiary interests (easements and mortgages) 08 – Co-ownership and strata title 09 – Creation and enforcement of equitable interests 10 – Priorities between registered interests 11 – Priorities between unregistered interests 12 – Revision 1 Topic 01: Property Law PART A: Introduction to Property Perspectives What is property? • There is no universal or agreed upon definition of property. • Property is about the distribution, allocation and control of scarce resources. • The content of property includes three critical aspects: - Things; - Rights; - Social Relationships; Property as Things ‘The intuitive appeal of making things the mediator of the relationship is evidenced by the pervasiveness of ‘thingness’ in the layperson’s understanding of property.’ − David Lametti, ‘The Concept of Property: Relations Through Objects of Social Wealth’ (2003) 53 University of Toronto Law Journal 325: 354. Property Rights • Property rights are created, conferred and protected by law. - Property rights are legal rights (not natural). - What kind of rights? • There are three dominant property rights (liberal triad): - Use - Exclusivity - Abandonment • These rights give owners choice Property as a Social Relationship • Property is about relations between people in respect of control over goods and resources i.e. things. • The source and internal constitution of private property arises from social relationships: ‘Property is something we must collectively define and construct. It is not given to us whole; it does not emerge fully formed like Athena from Zeus’s head. It is closer to a piece of music that unfolds over time. Like music, property gets its sense of stability from the ongoing creation and resolution of various forms of tension.’ − Joseph William Singer, Entitlement: The Paradoxes of Property (2000) 13. Divisibility • There are multiple ways property can be conceived and structured: - Private Property e.g. your own home - State/Public Property e.g. libraries, public parks - Common Property e.g. seabeds, the atmosphere, space PART B: An Introduction to Property Rights Introductory Concepts • Distinction between Real and Personal Property - Real Property: Land and Fixtures 2 - Personal Property: Movables • Possession • Ownership (indicated by satisfying the 3 liberal triads of use, exclusivity, and abandonment) Distinction between Property and Non-Property Rights Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 • 496; distinction between property and non- property rights • 504 – minority judgment; Rich J seeks to find balance two competing rights – right to free prospect i.e. looking over one’s fence against right to have profitable enjoyment of one’s land by drawing upon two ‘unique’ authorities - Article is about an invasion of privacy by a family who was able to observe everything that happened in a dentist’s clinic by forming a unique arrangement of mirrors in their own garden • Majority finds no (quasi-) property right in a spectacle, no nuisance, no unnatural construction that has been built – Victoria Park loses appeal • Held: No property in a spectacle TWO ways to hold a property right: Property right in: General/Torrens Law Equity General law land (old system) Deed, valid chain of title, for a Principles of contract, trust and right recognised at law. fraud. Torrens system land Registration e.g. registering Equity is not abolished. ownership of house with Lands Title Office () n.b.: Law and equity are separated here for conceptual clarity. In practice, law and equity were fused by the Judicature Acts of 1873 and 1875. People either have an interest in LAW or EQUITY. Property Rights at Law – by registration • Property Rights at General Law (in rem) – the old system – Not assessable I. Recognised at Law; e.g. Estates and Interests (Numerus Clausus): Fees Simple, Life Estates, Leases, Easements, Profits, Mortgages, Rentcharges II. Valid Title (i.e. not stolen) III. Deed (an old instrument of seal). • Contemporary importance of General Law rules. 3 Topic 02 – An introduction to the Torrens System and the concept of Indefeasibility Introduction to the Torrens System Title by registration • Deeds and private conveyancing system – complicated and did not provide a simple, speedy and inexpensive method for conveyancing and dealing with interests in land. • You don’t have a legal title which you then go and register – it’s the process of registration that gives you the legal title - Once registered, you are said to have an indefeasible title Indefeasibility treats the registered proprietor’s interest as paramount (good against the rest of the world), except in the case of fraud or statutory qualification. Indefeasibility of title does not apply to land under old system title. • The Torrens System is a system of title by registration. The title to land is displayed on the Certificate of Title which discloses ownership and all other encumbrances to which that land is subject. Relevant (New Zealand) authority; Frazer v Walker [1967] 1 AC 569 Frazer’s Prior equitable interest vs. subsequent legal interest • Mr Frazer claiming equitable interest due to (1) wife’s forgery against Walker who now holds the legal interest Walker • Pp. 577-78; Lord Wilberforce delivers material facts Mortgage o Ms. Frazer has forged signature of her husband, unbeknownst to him, to (2) obtain loan from Radomskis; their property acting as mortgage Radomski’s o Radomskis sell property to Walker, who registers her new interest (protected by s 69) o Frazer’s claim that he is victim of forgery and seeks duress • 585B; n.b. NZ’s Land Transfer Act 1952 = AUS’ Real Property Act o Walker is a registered proprietor, not a party to the forgery and therefore holds indefeasible legal title that no one, including the defrauded Mr. Frazer, may be able to challenge successfully against – under the rules of the Torrens System o N.b. different outcome had the Walkers been directly involved in the fraud 4 Topic 03 – The Doctrine of tenure and Adverse Possession • Real property is about social relationship - Grant of property has been given to you by the Crown or the State 3.1 The Feudal System of Tenure Personal relationship of dependency between lord and tenant o Brennan J in Mabo (No.2) (1992)- ‘tenure is a [social] relation between the tenant and the lord, not the tenant and the land’ o Organised into a system in England by William the Conqueror ▪ Distinguish allodial and tenurial ownership − Allodial; having DIRECT ownership of the land – there is no intermediary between yourself and your ‘home’ − Tenurial; relationship between you and someone else i.e. the Crown who GRANTS us the possession (ownership) of the land ▪ Land is 'held of’ the Crown − rather than Crown owning all the land A cascading chain of ownership: ▪ Pyramid structure with Crown granting to • King/Queen is the ultimate ‘tenants in chief’ in return for services. owner over all of the land 3.1.1 Types and Incidents of tenure (ownership over land during the - Able to gift land to feudal period) those favourable to Originally wide variety, sometimes very personal or bizarre him/her i.e. nobles and 1. Military (service): knight service, guarding castles, honorary barons official roles • Nobles/barons able to gift 2. Religious (service): frankalmoin, pray for soul or masses land to others for services 3. Socage-residual services commuted to money payment (still performed exists today): • Eventually reaches the • Free and common socage; peasants who perform the • Incidents - aids (payment), wardship, homage and fealty. agriculture work on the 3.1.2 Evolution of Tenure land, however, they don’t receive direct ownership – • Became more centralised and standardise. only ownership of the land • The END of Subinfeudation (tenants under their superior cannot as a result of the chain of carve out new and distinct tenures in their turn by ‘sub-letting’ relationship above them or alienating a part of their lands) - o Statute Quia Emptores 1290 - alienation or substitution, so only tenants in chief eventually holding from the Crown ▪ Still in force today in South Australia • Tenures Abolition Act 1660: Remaining vestiges of tenures and incidents removed - Military service cannot be traded for ownership of land 5 Topic 04 – Native Title Land Rights Milirrpum v Nabalco (1971) 17 FLR 141; • Challenge to mining project • 1963; Prime Minister Menzies announced Cth govt. was going to excise piece of land from Arnhem Land for creation of mine with Swiss consortium Nabalco • Yolngu people objected on basis they were not consulted with, along with other essential social concerns (drinking, etc.) o Presented a ‘bark’ petition which was signed by 17 leaders • Brings issue to NT Supreme Court – “I am very clearly of the opinion, upon the evidence, that the social rules and customs of the plaintiffs cannot possibly be dismissed…The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me…I hold that I must recognise the system revealed by the evidence as a system of law.” − Justice Blackburn • Despite saying this, Blackburn J eventually holds that customary (/traditional) land laws were not capable of being recognised inside of a Western legal system – he rejects the Yolngu’s claim Key factors in Blackburn J’s reasoning are 3-fold; 1. Indigenous land laws lacked essential characteristic of a property right (i.e. use, exclusivity, alienability) 2. Blackburn J noted that even if he were mistaken about this, any native title right being claimed that once existed were extinguished by the British proclamation of sovereignty (and radical title) 3.