TOPIC 1: The concept and function of “property” and real property: intro to real property Flashcards
Meaning of property -
Yanner v Eaton:
- property a right, not a thing –> “bundle of legal rights”
What relationship does property create
legal relationship btw a person and a thing
Outcome of issue in Yanner v Eaton: Was effect of s 7(1) Crown absolute ownership over the “property” of the fauna?
No - Crown’s rights weren’t absolute, but a bundle of rights that could co-exist with Yanner’s native title Rs.
What do rights in rem depend on?
the continued existence of something
can be enforced against the ‘whole world’
property vs contractual rights
Property Rights: limited no. Rs granted at CL
Contractual Rights: wide range of terms & rights can be contracted for.
Outcome of issue in King v David Allen & Sons Billposting: Did the agreement btw the King and the Billposting Company create an interest in the land?
No: the rights created btw them were not proprietary but binding in contract only (only thus enforceable against the King but not against 3rd parties incl. the lessee).
In King v Sons Billposting what did the King’s agreement contain?
implied term that King wouldn’t disable himself from carrying out his contractual obligation.
King breached that condition and was liable in damages to Billposting Company.
Real property =
real if law gave you ‘real/action remedy to vindicate rights’ –> form of heraditament
Personal property
= entitled only to personal rem (would give you damages instead of ur house back)
for the grantor to successively transfer a proprietary right to the grantee, the bundle of rights the grantor wishes to vest must
correspond to one of these categories:
1) Legal Fee simple
2) Legal life estate
3) Easement
4) Profit a prendre
5) Chattel ownership
6) Bailment of chattel
1) Legal Fee simple
Intention to grant exclusive possession of land ‘forever’
2) Legal life estate
Intention to grant exclusive possession of land for the duration of one’s life
3) Easement
Intention to grant rights which burden the grantor’s land and benefit the grantee’s land
nonpossessory right to use and/or enter onto the real property of another without possessing it. It is “best typified in the right of way which one landowner, A, may enjoy over the land of another, B”.
4) Profit a prendre
R to go onto someone else’s land and remove the natural produce of the land
5) Chattel ownership
Right to grant exclusive possession forever
6) Bailment of chattel
Right to delivery of exclusive possession with an obligation to redeliver
Possession without ownership
a temporary right
Ownership
has potential for permanence
- law protects ownership by enforcing the owner’s possession or right to possession
Doctrine of tenure
when the Crown has exercised its sovereign power to grant an interest in land
recognised that people could have a proprietary interest in one piece of land at the same time (noting that the Crown is ultimate owner of all land who grants people tenure to have the land)
Doctrine of estate
by relying on duration allows for the creation of successive interests (present and future) in the same piece of land
The “owner of the land” does not own the land but
owns an estate interest in the land, holding as a ‘tenant’ for the Crown
types of estate interest that could be ehld upon trust for another/purpose
1) Fee simple
2) Life estate
3) Fee tail
1) Fee simple
• Exclusive possession for unlimited duration - equiv to full ownership of the land
2) Life estate
Exclusive possession for duration of one’s life (at end of which it automatically passes to another)
Doctrine of tenure and Native Title
radical title of the Crown is consistent with the recognition of native title to land. - Mabo (No 2) Brennan J
NT is considered a proprietary right but,
it sits outside the doctrine of estate and system of tenure
Radical title is required to support:
1) doctrine of tenure
2) plenary power of the Crown
plenary power of the Crown
crown exercoses its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory
unless sovereign power is exercised by 1) doctrine of tenure or 2) Crown’s plenary power
territory will continue to be subject to NT! (NT not extinguished by the acquisition of sovereignty)
Definition of NT
NT is the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory (Brennan J - Mabo No 2)
Content of NT
comes from traditional law and customs,
- can’t be transferred but can be surrendered to Crown
- possessed by community/group/individual
- subject to being extinguished by interest granted by the Crown
- May be proprietary/personal/usufructuary
If land is terra nullius then, the Crown acquires both
radical title and full beneficial ownership
Even if there is NT Crown has right to
1) appropriate land for own use
2) alienate land to grant it to others
Requirements for NT: ATSI group must have ‘substantially maintained’ their traditional connection with the land by continuing to
1) acknowledge traditional law of the group
2) observe traditional customs of the group (as much as practicable)
If NT ext then it’s
effective against world at large, but limited to traditional uses of land
If NT not established then
can’t be revived for contemporary recognition –> Crown’s radical title expands to full beneficial title
Principle re extinguishment of NT
Sovereignty carries power to create and extinguish private Rs and interests in land within the Sovereign’s territory
Can NT be deliberately extinguished by state law?
NO - a state law purporting to do so is inconsistent (s 109 Const) w. Racial Discrimination Act 1975 (Cth) - Mabo No 2
Methods of extinguishment
1) Valid statute
2) W/o legislative backing (doctrine of tenure; exercise of plenary power)
Per WA v Brown test, NT extinguished where
rights granted by Crown and NT rights are legally inconsistent to the extent of the inconsistency (logically inconsistent such that the existence of one necessarily implies the non-existence of the other)
NT extinguished were
i) exclusive possession is granted (doctrine of tenure)
ii) state appropriates/uses land for permanent public works (plenary power)
NT not extinguished where 1)
1) State’s appropriation of land for permanent public works is CONSISTENT w continued concurrent enjoyment of NT over land (eg national park)
NT not extinguished where 2)
2) grant of Rs to use land for purpose if not accompanied by grant of a R to exclude anyone from the land for any reason - WA v Brown
NT not extinguished where 3)
3) If grant/appropriation gives lesser interest (so is compatible) any practical clash between NT and the grant/appropriation rights will be resolved in favour of the granted Rs BUT when this ceases, the NT Rs are revived (WA v Brown)
Mabo No 2 (1992) Principles
1) NT exists
2) Sovereignty does not extinguish NT
In WA v Brown (2014) was NT extinguished by the grant of the mineral leases?
NO - mineral leases did not confer a R to exclusive possession, but rather the R t go onto the land and to get and remove iron ore
In WA v Brown (2014) NT holders could have
exercised all their rights anywhere on the land w/o breach of any of the lessees’ rights - so thus Rs weren’t consistent!
In WA v Brown (2014) Rights which joint venturers had taken, continued to take priority over the Rs and interests of the NT holders for so long as
the joint venturers enjoyed and exercised those Rs
