Property Law

Question 1

What is real property?

Answer 1

Real property describes certain estates in land or certain rights or interests in land.

Question 2

What is a remainder with respect to real property?

Answer 2

Where a person attains ownership of something after the death of the previous owner

Question 3

What is a Reversion with respect to real property?

Answer 3

When a person’s interest in a property is relinquished, i.e. at the end of a lease, the person whom the ownership is transferred back to gets it by reversion.

Question 4

What is it called where you can take produce from land?

Answer 4

Profit a prendre

Question 5

What three classifications can personal property be given?

Answer 5

Chattels Real, Chattels personal, Choses in action.

Question 6

What are chattels real?

Answer 6

These are interests that are less than actual ownership and include leasehold interests in land.

Question 7

What are chattels personal and what is another name for them?

Answer 7

Choses in possession.

Tangible items that can be physically held.

Question 8

What are choses in action?

Answer 8

These are rights that may only be enforced by taking action in the courts.

These may be Shares or intellectual property rights.

Question 9

What is a lease?

Answer 9

A lease is an agreement where:

an owner of land (the lessor)
gives exclusive possession of the land 
to another person (the lessee)
for an agreed period
usually in return for payment (rent).

Question 10

What is the difference between chattels and fixtures?

Answer 10

Chattels are items of personal property that can readily be removed from a house; for example, refrigerators, washing machines and microwave ovens. Chattels are not fixtures and therefore not sold with a house property, unless they are mentioned in the contract.

Chattels should be distinguished from fixtures, which are part of the land, and are therefore real property and would be sold with a house.

A fixture is an article that is considered to be part of the land. Once a chattel becomes fixed to the land it ceases to be personal property and becomes real property.

Question 11

When does an article lose its classification as a chattel?

Answer 11

An article loses its classification as a chattel and becomes a fixture when it satisfies these three basic principles:

1) The degree of annexation: Can the object be easily removed without damaging it or the premises?
2) The purpose of the annexation: Is the object there for the permanent and substantial improvement of the premises, merely for a temporary purpose, or for the more complete enjoyment and use of the chattel as a chattel?
3) The intention of the parties as determined from the circumstances: Do the circumstances suggest that the parties intended the chattel to be fixed? If the chattel is to some extent attached to the premises, it will be considered to be a fixture unless the circumstances show that it was intended to remain as a chattel. Whoever denies that an object is a fixture has to establish that it was never intended to be used as a fixture.

Question 12

What is the Nemo dat rule?

Answer 12

You cannot give a better title than you yourself have.

Question 13

What are the three fundamental principles of our land transfer system and what do they mean?

Answer 13

The mirror principle - The certificate of title reflects all relevant legal facts that relate to the title

The curtain principle - On registration of an interest in land, a curtain comes down on all past events

Insurance principle - The state guarantees that the register can be relied on.

Question 14

What is indefeasibility of Title?

Answer 14

If a purchaser buys a property from a seller who is the registered owner, and registers the property, the following will be true, according to the Land Transfer Act:

Any other interest that is not registered will have no relevance or effect unless the purchaser does not act in good faith (s 182). If a third person comes along and says they are the true owner, their claim will be irrelevant because it is not registered (unless the purchaser does not act in good faith).

A purchaser is not bound to check the background as to how registration in the seller’s name came about, as long as the purchaser acts in good faith. So, if the seller is registered as the owner, the buyer can assume this to be correct. They do not have to do additional checks – unless it was not done in good faith.

Indefeasibility means that the person being registered as proprietor becomes registered as the proprietor (owner) of that interest and has a guaranteed title

Question 15

What are three examples where a proprietor’s interest can be defeated?

Answer 15

Section 63, Land Transfer Act 1952

• a mortgagee sale occurs
• a registered lease is forfeited because of a breach of its terms
• the person registered became registered through fraud.

Question 16

What does Section 183 of the Land Transfer Act 1952 say about how a purchaser must act to gain indefeasible title?

Answer 16

They must be acting in good faith

They must be acting without fraud

They must pay a valuable consideration.

Question 17

What was found in Frazer v Walker?

Answer 17

A person who acquires property in good faith from a person who acts fraudulently, causing loss to another person still has indefeasible title.

Question 18

What was held in Efstatiou Glantschnig and Petrovic v Glantschnig?

Answer 18

Where a purchaser obtains title of a property and are a party to fraud in obtaining the title, they will not obtain indefeasible title even if it is registered.

Being a party to the fraud can be proven circumstantially such as, haste of registration, the low price and the knowledge of the deception.

Question 19

What was held in Boyd v Mayor of Wellington?

Answer 19

Where there is no fraud, just mistake in process, a registration of interest in land can still result in indefeasible title.

Question 20

What is ownership?

Answer 20

Ownership is the fullest set of rights that a person can have in respect to property. The owner has what the law calls ‘title’ to the property.

Question 21

What is possession?

Answer 21

Possession is the right to the physical custody of property.

Question 22

What are four ways title can be transferred?

Answer 22

• gift
• sale
• operation of law (for example, through the mortgagee sale of a house property, or the death of an owner of jointly owned property)
• succession – a gift through a will that is effective on the death of the person who made the will.