Concept of Property 2 Common law and equitable interests in land 3 Old System Priorities 5 Torrens 7 Indefeasibility and Exceptions 8 Unregistered Interests and Priorities 11 Common Ownership 12 Strata Title 15 Mortgages 19 Leases 26 Residential Tenancies 34 Easements 38 Freehold Covenants 44 Native Title 47 Personal Property 51 Concept of Property • 3 elements: dominion, exclusion and external things • interfering with property rights leads to other laws in torts and criminal • A M Honere’s 11 elements for the basis of property rights (not all must be present) 1. right to possess 2. right to use 3. right to manage 4. right to the income 5. right to the capital 6. right to security 7. power of transmissibility 8. absence of term prohibition of harmful use 9. liability to execution 10. residuary rights • it is better to think of property rights in relation to bundles of rights and legal relations to others • thinking of property solely as a thing disregards public interest Land Fixtures and Chattels Land • corporal rights ! rights to the land itself • incorporeal rights ! rights over land • What is land? o Earth, airspace, minerals, vegetation, buildings o Airspace " A landowner can use airspace to build to any height " Owner has rights to a height that is necessary for the ordinary use of the land – Bernstein of Leigh v Skyviews " Plaintiffs can be granted injunctions for airspace intrusions " Injunctions will not be granted if the trespass is trivial, or if the plaintiff has rejected reasonable compensation – Woollertson v Costain " Permanent intrusion (billboards) are usually trespass – Kelson v Imperial Tobacco o Subsoil: similar rules to airspace; ‘reasonably necessary’ o Natural rights: support from adjacent owners, rights to water • Boundaries o Artificial: fixed until adjacent landowners agrees to move them o Natural: may shift with land o With land bounded by tidal waters, the owner owns the land up to the mean high-water mark (land below belong to the Crown) o Owners have rights up to where the land and water meet, if surrounded by non-tidal waters – Crown Lands Act 1989 o Erosion: boundaries will change if the natural change is so gradual it cannot be seen by the naked eye o Sudden changes in land (earthquakes) will not move boundaries Fixtures • fixtures are chattels which become part of the realty by annexure • General Principles: o Holland v Hodgeon: degree of annexation, purpose of annexation (determined objectively) o Assumption: if an object rests on its own weight it is a chattel o Sanwa Australian v National Westminster " Nature of chattel " Manner utilised " Degree of annexation " Amount of time affixed " Purpose of annexure " Intention o National Australian Bank Limited v Blacker " Irrigation equipment o Attached chattels are presumed to be fixtures, degree of attachment is proportionate to assumption o Tenants Fixtures " Tenants have no rights to attached chattels after the lease expires " Penton v Robart: • Tenants can attach and remove chattels during the lease • During the lease, fixtures belong to the landlord subject to the tenants right to remove them " S 133B (2) Conveyancing Act ! if improvements can be made as a term of the lease, the landlord cannot refuse reasonable requests to do so (not for residential properties) " If the tenancy is ended for forfeiture or surrender, the tenant can remove items as long as they remain in possession ‘under colour of right’ " Exceptions: • Agricultural tenancies: tenant have the right to remove fixtures, subject to the landlords right to purchase at a reasonable price o Chattels annexed by mistake " Brand v Chris Building • House build on land, mistakenly believes to belong to builder ! plaintiff had no remedy, and the house became part of the realty (belonged to the true landowner) " Same principle applies to chattels Estates and Interest in Land Freehold Estates • fee simple: largest estate in land • life estate: estate of freehold, but not inheritance o ordinary life estate – used when the donor doesn’t want to create a line of inheritance o pur autre vie Leaseholds • used to be classified as personalty Re Cancer Care Institution of Australia Pty Ltd [2013] NSWSC - radiology machine was affixed to the floor by the concreting of a steel frame - argument that the machine needed to be looked at as a whole (machine and frame), but court found that the parts had viability separately (can insert new machine into old frame) - argument that the parts were purchased together, so should be considered together ! but other items were also purchased in the same order that were not at all relevant - fact that the operator frequently moved machines was relevant - fixture status was determined by o objective intention of chattel owner o degree of fixation - machine is not a fixture – it was attached strongly for the better operation of the machine Common Law and Equitable Interests in Property • forms of title: crown, old system, Torrens, native Law, Equity and Trusts Legal and Equitable Ownership • equitable remedies are available to those who succeed in litigation, but when common law remedies are not available • property rights are divided into legal and equitable rights Standard Conveyancing 1. exchange of contracts - two identical contracts are prepared, signed then exchanged - purchaser pays deposit - purchaser gains equitable interest, no transfer of legal title yet 2. settlement - vendor hands over deed (old system), or transfer and CT(Torrens) - purchaser pays balance - purchaser takes possession Creation and Transfer of Interests in land at LAW • Deeds o S 23 B (1) Conveyancing Act – interests in land must be transferred by deed (including mortgages and easements) o Deeds must be signed, sealed and delivered o Deeds must be witnessed by someone who is not a party o Deeds are not require in Torrens title land o Unregistered Torrens transfers must be in the form of a deed • Legal Interests created by parol or by conduct o S 23B (2)(d) – leases not require to be in writing if they are for less than 3 years, at market price, take effect immediately and have no fine (lump sum payment) o No writing requirement ! Implied yearly tenancies at common law, and general periodic tenancies • Interests in personalty can be created without documentation (exceptions: e.g. shares) Creation and Transfer of Interests in land at EQUITY • Creation of equitable interests; trusts, specific performance, part performance, estoppel • General o Contract ! a promise to sell land AFTER balance of payment has been received o Actions regarding contracts for the sale of land must have a contract that; describes the land, parties and refers to transaction (ANZ Banking Group Ltd v Widin) – if the contract refers to a document with these characteristics, they can be read together • Auctions o Banging of hammer signifies oral contract only, there has been no part performance and therefore no equitable interest arises o Contract then must be signed • Specific Performance o Order of court directing a party to complete a contract o Contract +equitable remedy = equitable interest in land (DOCTINE OF CONVERSION) ! Purchaser acquires an equitable interest after exchange of contracts, and is the owner in equity o After exchange of contracts the vendor becomes a trustee for the purchaser – Lysaght v Edwards • Entitlement to Specific Performance o Equitable remedies are only available if a legal remedy is inadequate o Equitable relief is only available if the plaintiff is not guilty of inequitable conduct o Transaction must have been for value ! equity will not help a volunteer o Plaintiff must be ‘ready, willing and able’ to complete the contract at the time of bringing the action o Specific performance mustn’t harm 3rd parties • Duties and Rights of a vendor o Bunny Industries v FSW Enterprise ! vendor becomes trustee for purchaser o Vendors must keep the property in the same condition as when it was sold o If a vendor hands over possession before all payments are received, he retains an equitable interest until funds are paid • Passing of risk ! Purchaser obtains risk after exchange of contracts, not at settlement • Doctrine of Part Performance o Prevents s 54A (written requirement) from being used in fraud – Penrith Whitewater Stadium v Lesvos o When one party performs their part of the contract (to the extent that it as unequivocally for the purpose of the contract) the rest of the contract will be enforced (strict test) o Mere payments of money is not enough for part performance o Mortgages " An equitable mortgage will be created when the mortgagor hands over the title deed as security " Deposit of mortgager counts as part performance by both parties, the contract will be enforced upon both parties Ogilvie v Ryan - R lived in a house owned by a cinema company, when company wanted to sell R’s home O offered to buy a for them to live in together - O would then grant R a life estate after his death, in exchange for R’s housekeeping services - O named his son in the will, not R - R had part performed her contract, but it was found her actions could not be unequivocally explained by the contract (she may have done it because they were in a relationship) Tanwar Enterprises Pty Ltd v Cauchi (2004) 217 CLR 315 - T entered into contract to purchase land from C - There was no ‘time of the essence clause’ - T couldn’t come up with the money, C granted extension - T continued to attempt to postpone settlement, C eventually terminated contract - ISSUE: can the court order specific performance if the vendor