Proprietary rights in land

Question 1

What is a proprietary right and can it be enforced against a third party?

Answer 1

A proprietary right in land can be enforced by an action in rem, meaning that use or possession of the land can be recovered. The holder of the right does not have to settle for damages if they are deprived of their right.

A proprietary right is also capable of being enforced against a third party.

Question 2

Why is the distinction between personal and proprietary rights important?

Answer 2

The distinction is important in the context of:

*The remedy available to someone who is deprived of their right; and

*The enforceability against third parties.

Question 3

What is a personal right and can it be enforced against a third party?

Answer 3

A personal right in land can only be enforced by a personal action for damages if the right is breached. Use (or occupation) of the right cannot be recovered.

Personal rights will bind only the original parties to the right, there can be no recourse against a third party.

Question 4

What is the list of proprietary rights?

Answer 4

*Leasehold
*Freehold
*easement
*mortgage
*restrictive covenant
*estate contract
*beneficial interest in a trust of land

Question 5

How do you determine if a right is proprietary or personal?

Answer 5

Need to look at the nature, creation and protection of the right.

Question 6

What is the process for determining whether a right is personal or proprietary?

Answer 6

Fixed list: is it on the list of recognised proprietary rights in land?

Nature of a right: does it satisfy any substantive characteristics for the particular proprietary right?

Creation of a right: Has it been created/acquired in accordance with the formalities for the particular right?

Protection of a right: if a right is proprietary, you then need to ask if it is enforceable against a third party.