Property Law Midterm Flashcards
What is a right in rem?
A right in rem is a property right that relates to a specific thing such as goods, land, animal, intellectual property etc and is enforceable generally against others (Milirrpum case)
what is a right in personam?
A right in personam is a personal right that is enforceable only against a specific person or persons, such as debt, bank account, licence to use land (King v David Allen case)
What are assignable rights?
All rights (in rem and in personam) that can be transferred to someone else.
What are non-assignable rights?
All other rights that aren’t assignable rights and can only be enforced by specific persons whom they were granted (such as university degree, right to vote etc.)
What was the ruling from Milirrpum v Nabalco pty ltd?
A property right is the right to use or enjoy, exclude others, and alienate (transfer rights to someone else).
What was the rule that came from King v David Allen?
Licenses and contractual rights are rights in personam. Only rights in rem are enforceable against third parties
What is quasi-property?
Quasi-property is assets or interests that are not technically considered property but are still subject to legal protect and regulation.
What is the normal remedy for breach of property rights?
Damages is the normal remedy for breach of property rights.
Explain confidential information in terms of property law.
Confidential information is a type of intellectual property. Every right to confidential information has a duty not to misuse the information. The right is created by contracts such as employment or confidentiality but contracts aren’t required. Secrets between lovers is an example of non-contractual undertaking of duty of confidence. it can be expressed or implied and imposed on those who undertook so it is a right in personam.
Can a right to confidential information be enforced against those who do nothing but receive the info?
Yes, it was held in AG v Guardian (No 2) that a right to confidential info can be enforced against those who do nothing more than receive the information -> right in rem
When can you be released from duty of confidence?
When the information ceases to be confidential, all are released from duty of confidence.
What is the best-known right to possess something indefinitely?
Ownership.
What was the rule that came from Perry v Clissold?
When resolving disputes over property, the common law does not care who owns the things but merely which claimant has a better right to possess them.
How does Honoré describe ownership?
ownership can be described as greatest possible interest in a thing which a mature system of law recognizes.
What does Honoré list as the standard incidents of ownership?
1) Right to Possess - right to control a specific thing and exclude others from it;
2) right to use - right to use and enjoyment;
3) right to manage - right to manage how it is used;
4) right to income - right to hire out for value and keep income from it;
5) right to security - right to be free from interference
6) right to capital - right to dispose of by selling, giving away, consuming, or destroying.
7) transmissibility - the ability to transfer rights to someone else;
8) prohibition of harmful use - condition on rights that uses harmful to other members of society are forbidden - owners also owe duty of care not to harm animals, sometimes land, and historic resources (Backhouse case);
9) Liability to execution - the ability to be seized and sold to pay the owner’s debts;
10) absence of term - ownership has potential to go on indefinitely;
11) incident of residuarity - right to possession will always be returned to owner.
In Honoré’s list of standard incidents, all apply to both possession as well as ownership except three. Which are those three?
1) right to capital
2) absence of term
3) incident of residuarity
Explain Crown ownership.
Crown land is held on behalf of people of Canada, some of it off-limits to public, some of it members of public routinely have access like parks.
While government can restrict access and regulate use of public spaces, it does not have same degree of control as a private person would have over their spaces.
Crown also owns wildlife and natural resources, but ownership is a device for regulation of the resources and is not absolute ownership
What are the two elements necessary for legal possession?
1) control - factual possession
- limiting or regulating access to land or goods by other people;
- fences can be used to control land, but it is neither necessary nor sufficient to establish control.
- wild animals are controlled by keeping them from escaping
2) intention to possess
- intention to control thing and prevent (or at least regulate) others using it for one’s own behalf or one’s own benefit.
- it is possible for a person to intend to possess something that they do not know it exists, if the thing is found inside something they control and intend to possess such as private home, car, backpack etc.
What was the rule from JA Pye (Oxford Ltd v. Graham (2002) UK?
The rule was that two elements are required for legal possession: 1) factual possession/control and 2) intention to possess
What is conversion?
occurs when a person without authority or permission intentionally takes the personal property of another or deprives another of possession of personal property
What was the rule in Flack v National Crime?
an intention to possess something (such as a house) includes an intention to possess anything inside it, known or not
What is a possessory title?
right to possession is enforceable generally against others, except someone with a better title
What is relativity of title?
when two parties have competing claim to the same thing, the question is not who has the best possible title, but who has the better title.
What is Nemo dat quod non habet?
No one can give what they do not have. This is the starting point for resolving dispute between competing legal property rights.
For example, original owner of stolen property still has a right to possession even if it has been sold.
What was the rule arising from Armory v Delamirie?
First finder of something will have best possible title except for original owner; older rights prevail.
How does possession work in public spaces?
1) Owner of a space where public is routinely invited does not have possession of everything brought into that space by customers. (Bridges v Hawkesworth)
2) Members of public invited to public space, such as a park, they do not have a right to possession of things found in areas in which the public was not invited (such as beneath the soil). (Waverly Borough Council v Fletcher)
What happens if possession was acquired wrongly?
common law doesn’t usually care if possession was acquired rightly or wrongly, just who has the best right (often who had it first)
Bird v Fort Frances : boy trespasses and finds money and cops took it, owner didn’t come forward. Held boy had better right than police.
Baird v British Columbia: Baird used stolen money and traveller’s cheques and cops caught him and took the stolen goods. Baird sued for recovery but was held that sometimes claim can be so tainted with criminality or culpable immorality that as a matter of public policy that court will not assist in recovery.
What is an estate?
Estate is a right in rem to possess land for some period of time.
When does a change in an estate occur?
when there is a change to any of its four dimensions: 2 horizontal (area), 1 vertical (volume) and one temporal (time).
How is time/duration of an estate measured?
Either by lives (freehold estate) or defined periods (leasehold estate).
What was the rule from Didow v Alberta Power LTD?
owner is entitled to freedom from permanent structures which impinge on actual or potential use and enjoyment of land.
What was the rule from Edwards v Sims (1929)?
whatever is in a direct line between the land’s surface and the center of the earth belongs to the owner of the surface.
What are the types of freehold estates?
1) fee simple
2) fee tail/entailed fee
3) Life estate
What is a fee simple estate?
largest estate possible - equivalent to ownership of land.
Granted by crown to a tenant and their heirs -> if a tenant died it passes to an heir and continues unless tenant dies without heirs.
If the tenant dies without heirs, the estate is escheat, meaning the end of an estate due to the lack of an heir and land returned to the Crown.
What is an entailed estate/fee tail estate?
created by grand of land to a tenant and their lineal descendants.
What is a life estate
an estate existing for duration of tenant’s life. Once life tenant dies, right to possession belongs agin to fee simple holder.
If life tenant transfers life estate to someone else, new tenant holds a life estate which comes to an end when the original life tenant dies.
What is a leasehold estate?
right to possess land for a defined term (lease or tenancy). it is a combination of an estate and a contract.
What are the types of leases?
1) Fixed term
2) Periodic tenancy
3) tenancy at will
4) lease for life.
What type of lease is this: like a fixed-term lease that automatically renews when each period comes to an end unless landlord or tenant gives notice to end tenancy.
Periodic Tenancy
What type of lease is this: duration of term is uncertain; each party can choose to end by giving reasonable notice to the other.
Tenancy at will
What is a lease for life?
Similar to life estate, term is uncertain as tenant has right to possess land for their life - lease (as opposed to life estate) often comes with obligation to pay rent.
Explain what a fixed-term lease is.
The start and end of a fixed-term lease must be specified at the outset. If there is any uncertainty over its term, it’s not a valid fixed-term lease and instead will take effect as a tenancy at will or periodic tenancy. They often contain options for renewal in which the tenant can choose to have one or more additional terms.
What are the differences between a lease and a license?
1) A lease is a right in rem enforceable generally against others, including the landlord, while a license is a right in personam usually, and if enforceable, it is enforceable against the person who granted the licence.
2) lease creates a right to exclusive possession of land while licence creates a right to occupy or use premises in a certain manner or for specific purpose and does not create an interest in land.
3) Lease has a definite duration while License doesn’t require a definite duration.
Give examples of licenses to use land.
1) bare or mere licence: allows mere permission to use land (inviting someone in to your house would be giving that person a license to be there but the person has to leave)
2) Contractual license: a personal right to use land and also license created by estoppel. (landowner cn say get out, even if they are in breach of contract, because you don’t have possession.)
3) Property right to use the land: a license coupled with an interest. Not just a personal right to use the land but there is a property interest in the land as well.
What is the difference between a tenant and a lodger?
A tenant has an estate. They have possession of land and a property right to control premises and is enforceable generally against others.
A lodger has a license, they are not a tenant because they are sharing space with others and only have a personal right to occupy or use the premises and is enforceable only against estate holder.
Which case is referred to when examining if it is a lease or a license?
Street v Mountford 1985 uk: the language of an agreement and intentions of parties can be used to determine whether there is a lease or license (by looking for exclusive possession)
Landlord gave tenant a room lease but could only use it as a space for laundromat. Landlord sold to new landlord, new landlord not honoring lease claimed it was a license, court held no, it is a lease because that’s the language used and the intent.
