Law of Property

Question 1

Property

Answer 1

anything which is owned or able to be owned.

Question 2

Ownership

Answer 2

regardless of type of property, it comprises of

• title
• use and possession
• right to sell it or dispose of it

Transfer of ownership can be by sale, gift, by will or by operation of law. If bankrupt, vests in Official Assignee.

Legal status giving greatest range of rights over property. Contrast with possession which is right to control property.

Question 3

Possession

Answer 3

Physical concept. Right of control over property and usually right of use. Part of ownership but can be separate.

Question 4

Real Property

Answer 4

It is land and all things to do with land to an extent (air space to an extent). Can include interests in land or rights over land (created by contract, statute, will or trusts).
Dealt with Torrens System under Land Transfer Act of 1952.

i.e Land ownership - immoveable property
Easement or leasehold estates

Question 5

Personal property

Answer 5

consists of all other kinds of property that are not real property.
Consists of
- choses in possession (tangible so can be possessed or controlled physically). Delivery can be actual (hand it) or construction (hand means of control over)
- choses in action (intangible). They are rights and transferred through writing both informal or formal. Can enforce rights by Court action. i.e. shares, debt, IP.
- chattels real (lease of land where tenant gets possession for #years in return for rent and made personal property in UK but really real property)

Question 6

Intellectual Property

Answer 6

intangible.
Creation of new ideas, products and processes. Can include reputation as well.

Protected by Confidentiality principle (tort) and patent law, Copyrights laws and Act, Designs Act 1953, Trade Marks Act, FTA 1986, Companies Act 1993.

Question 7

Patents Act 2013

Answer 7

Patent is a monopoly right giving the exclusive use of an invention for up to 20 years. It can be bought, sold, transferred or licensed. Need to file patent in other places for it to work.

New product, process or improvement to either can be patented. New chemical compounds, etc. New method or process relating to testing or control of an existing manufacturing process. Biotechnical matter. Electrical devices and circuits. A new pharmaceutical use for compound. Improvement in computer technology.

Not everything can be patented. Has to meet criteria for novelty inventiveness and utility. Has to be industrially applicable. Contain an inventive step that is not obvious. New or novel (confidentiality).

Has to be worldwide applicable (new change), can refuse if not useful, in line with international patent law. Need to consider Maori (is it something that is traditional or will be contrary to Maori values).

Question 8

Exclusions from Act

Answer 8

• computer program
• human beings and processes for generation
• method of treatment of humans
• diagnosis practices
• plant variety
• public order or morality exclusion (cloning, etc).

Question 9

Assignment and licences

Answer 9

Assigned - ownership rights handed over through deed of assignment and filed in IPONZ.

Licenced - in whole or in part

has to be formalised

Question 10

Penalties for patent infringement

Answer 10

Injunction
Damages - account for profits
Court costs and legal fees
Surrender of infringing articles and machinery used for making the infringing articles.

Question 11

Trade marks

Answer 11

A sign which is capable of being represented graphically and capable of distinguishing the goods or services of one person from those of another. Can include words, logos, colours, shapes, sounds, smells or any combination of these.

Governed by Trademarks Act 2002. Goodwill of product is tied with trademark. Can be licensed or assigned (personal property).

Can only take action if use trademark and provides similar goods or services. In terms of classification of G&S, can’t use mark in relation to g& s it is registered under and can’t use similar mark either.

Question 12

Why register a trademark?

Answer 12

• exclusive rights
• use system to show registered
• legal protection - sue for infringement

There is no legal requirement to register. Have to rely on tort of ‘passing off’ (misrepresentation causing damages to goodwill even unintentionally), FTA (misleading and deceptive conduct). More costly and lengthy and difficult to prove.

Consider domain names.

Question 13

What does not qualify as a TM

Answer 13

• surnames or names
• likely to mislead or confuse
• overly generic
• descriptive terms
• geographical location
• those that are similar to others
• Maori sign (has to be approved by Maori Trade Marks Advisory Committee)

Question 14

copyright

Answer 14

an automatic unregistered right that comes into existence every time an original work is created, published and performed.

Protected by Copyright Act 1994 s14

• literary works (emails, manuals …)
• dramatic works
• musical works
• artistic works
• sound recordings
• films
• communication works (radio)
• typographical arrangements of published works (layout of edition, etc).

Consequently, there are layers of copyright.

Question 15

ownership of copyright

Answer 15

the person who is the author of work is owner of copyright.

Those that commission work are owners.

Question 16

when is copyright infringed

Answer 16

when a person uses a work in a way that is reserved to the copyright owner without permission. Can be whole of work or substantial part of it (distinctive part of work). Can depend on quality rather than quantity.

Question 17

rights of owners

Answer 17

Exclusive rights

• copy, reproduce, etc
• issue copies to the public
• perform or show work
• communicate work to public
• adapt work

Question 18

duration of copyright

Answer 18

50 years from end of year in which author dies or if computer generated, from end of year work is made.

Typographical arrangement - 25 years.

Question 19

Copyright (New Technologies) Amendment Act 2008

Answer 19

Bring law into step with tech advances.

Neutral framework which introduces new concepts.
Says
- copying extends to digital works
- owners can broadcast material on websites
- limited exception from infringement for copying with no economic significance
- allows copies by educational bodies
- personal use (see next flashcard)

Came into force on 31 October 2008 (except S92a)

Question 20

Personal use

Answer 20

Format shifting so can allow copying if made legitimately (not stolen or pirated), own recording, etc. of something else (record in different format)

Copy has to be for personal use or for member of household. Can make one copy for each device you own. Can’t copy communication works.

Allowed back up copy if you own program. Can’t do if infringing copy or against copyright owner.

Does not include copying for friends or on-line file-sharing.

it is possible to enter a contract that can override terms of format shifting exception. Can’t format shift other works even if you own item.

Can do time shifting - view at more convenient time.

Question 21

Section 92

Answer 21

Anti piracy clause.

ISP could suspend accounts of repeat offenders.

Resistance

Question 22

Copyright (Infringing File Sharing) Amendment Act 2011

Answer 22

S92A is repealed (see earlier).

Changed to a graduated response. Owners notify fixed line ISPS that they believe a internet subscriber is infringing their copyright through peer to peer file sharing.

ISP send warning notices. After 3 notices (detection, warning and enforcement), can then take it to Copyright Tribunal.

DC can order IP address provider to suspend account.

Power to terminate has been frozen. GG and Cabinet decide.

Question 23

Personal Property Securities Act 1999

Answer 23

provides for creation and enforceability of security interests in personal property.

determination of priority between security interests in the same personal property.

established a personal property securities register. Can register your stuff

Question 24

registration

Answer 24

business can register security interests in personal property.

If buying personal property that already has a secured registered interest on it, it may be seized. Check register.

Question 25

eminent domain

Answer 25

ownership of land in NZ is based on assumption that only Crown can own land absolutely.

Question 26

estates in land

Answer 26

instead of absolute ownership – have estates in land.

Estate in fee simple – max estate is called freehold

Estate in leashold - governed by lease, legal estate but less

Life estate - not ownership but has interest in land for a number of years only

Question 27

joint tenants

Answer 27

can own land by yourself or together. Neither has exclusive interest or right to possession of any particular part of land. All dealings must be carried out by both parties. Interest in lad passes to surviving tenant in case of death

Question 28

tenants in common

Answer 28

owners hold an equal or unequal divided share in fee simple. each co-owner can deal with share without consent of other and no right of survivorship (leave to someone else in will)

Question 29

deeds system

Answer 29

deed was a written paper or document which set out the parties’ transactions and signed by them. A deed was needed a lot. This is prior to intro of Land Transfer System.

Question 30

problems with deed system

Answer 30

• title or ownership was always eat by an unbroken chain of deeds going back in time. any gaps cast doubt on title of owner.
• purchaser always has to make a long careful check to ensure buying from legal owner
• large and bulky but had to be protected for surety

Question 31

torrens system

Answer 31

in 1870, it was introduced as

• simple
• easier to administer
• available to public
• once ownership of land is registered and certificate is issued (no one can question it with some exceptions)

Applies to all land except for Crown land and Maori land. All land that has certificate of title where recordings of dealings are put. They are stored online. Get a copy from LINZ.

Question 32

Certificate of title

Answer 32

• Number
• Number of previous title
• Description
• Area
• Diagram
• Legal description of land
• Details of other interests in land (memorials)

Question 33

effects of registration

Answer 33

• mirror principle - CT reflects all relevant legal facts relating to it
• curtain principle - on registration of an interest in land, a curtain comes down over past events. They can’t affect current owner unless fraud.
• insurance principle - state guarantees that register can be relied on so if incorrect, not your fault and can expect compensation.

Question 34

indefeasibility

Answer 34

supremacy of title. Undisputed unless fraud.

Land Transfer Act protects concept of this by limiting people who can sue for recovery of land from owner

• mortgagee or lessor
• those deprived of land by fraud of current owner or someone else with the current owner not being a bona fide transferee for value (didn’t pay right price)

Question 35

Frazer v Walker (1967)

Answer 35

Facts: Joint owners but mortgage signed by Mrs Frazer who forged her husband’s signature. Mortgage registered against title. She defaulted and so it was sold. Mr Frazer tried to get it back due to forgery.

Judgement: Mortgagees acted in good faith. Mortgage could not be set aside. So, Mr Walker had indefeasible title to land.

Question 36

Morrison v BNZ (1991)

Answer 36

Facts: Claim bank was unable to claim monies owing under 2nd mortgage due to sale of property following matrimonial property division due to forgery of signature.
Judgement: No evidence of fraud on behalf of Bank so valid mortgage.

Question 37

fraud

Answer 37

dishonesty (not clearly defined in Land Transfer Act 1952).

Object is to cheat someone or the dealing takes away some existing legal right in a way that is morally wrong.

Question 38

Efstratiou, Glantschnig and Petrovic v Glantsching

Answer 38

Fact: Mr and Mrs G bought house. House registered under husband’s name. They separated. He sold the house and spent all the money himself. Buyer and agent aware of circumstances of sale and bought quickly (no inspection and undervalue)

Judgement: Mr E (buyer) did not have indefeasible title as he knew about wife’s unregistered interest and was party to scheme to deprive wife of interest.