Unit 1 - The Nature of Property

Question 1

What are the 3 main sources of Law?

Answer 1

— Common law
— Equity
— Legislation

Question 2

What are the 3 main acts in property law

Answer 2

— Property Law Act 1969 (WA)
— Transfer of Land Act 1893 (WA)
— Native Title Act 1993 (Cth)

Question 3

What is property

Answer 3

English legal word for the study of relationships between people, the resources they use, and the relationship among people concerning these resources.

Therefore, property is relationships and rights, not just things.

Question 4

How does common law define property?

Answer 4

— Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 272: “…property, in its many forms generally implies the right to use and enjoy, the right to exclude others and the right to alienate…”

— Yanner v Eaton (1999) 166 ALR 358: “The term property can be used to describe very many kinds of relationships between a person and a subject matter”.

Question 5

What are the characteristics of property?

Answer 5

1) Property is a right and not a thing.
2) Property is only enforceable by law.
3) Several property interests may exist in a single object.
4) Not everything is capable of being owned.
5) Private property must involve the right to exclude others from doing something.

Question 6

What are the types of property?

Answer 6

The word ‘property’ includes in some contexts money and the right (under statute of the general law) to receive a payment of money

— Assignability (transferability) of the right, interest, or thing is a consequence of its being property, not a definitive test as to whether or not it is property:

— Personal rights (such as the right to performance of an executor contract), knowledge, and confidential information (unless recognised and protected by the law of patents, copyright, or similar intellectual property regimes) are not strictly property:

Question 7

What are the types of rights

Answer 7

A) Rights in personam (person) – rights enforced against particular persons, without regard to the things they might have.

B) Rights in rem (thing) – rights people have concerning particular things; rights enforceable against the rest of the world. A right in rem depends on the existence of a thing.
- Property law is primarily about rights in rem.

Question 8

What are the classification of property rights

Answer 8

A) Land and goods
B) Real and personal property
C) Tangible and intangible
D) Corporeal and incorporeal
E) Legal and equitable

Question 9

What are the two areas of property law

Answer 9

1) Proprietary rights: Enforceable against the whole world

2) Contractual rights: Enforceable against the parties to the contract only

Question 10

What is Land?

Answer 10

Definition:
- The soil and surface layer of the Earth and all physical things that are attached (corporeal hereditaments).

• Intangible rights that can be enjoyed over the land (incorporeal hereditaments) – e.g. an easement.

Question 11

Explain the concept of ownership of land

Answer 11

• Ownership: Ultimate title
• Possession: An incident of property ownership
  Example: Ben buys an investment property and leases it to Sam.
  What are their respective property rights?
• Ben: Ownership
• Sam: Possession

Question 12

What is a fixture?

Answer 12

• A fixture is a thing, once a chattel, which has become in law land through being fixed to the land.
• “The question whether a chattel has become a fixture depends on whether is has been fixed to the land and if so for what purpose”
• Therefore, the landowner is entitled to the fixture by virtue of his or her ownership of the land.

Question 13

What is the relevance of fixtures?

Answer 13

• Sale of land – fixtures pass to the buyer
• Mortgages – mortgagee’s security includes fixtures.
• Leases – items attached may become the property of the landlord.

Question 14

What are the tests for fixtures?

Answer 14

1) Degree of annexation
2) Purpose of annexation

Degree of annexation test – considers the physical attachment to the land 9bolted down, etc)

Purpose of annexation test: whether the fixture has been placed there as an improvement or part of the architectural layout.

Question 15

Explain the Holland vs Hodgeson case

Answer 15

• Holland tells us to look first at whether the object is attached in any way to the land.
• If it is attached, then it is to be classified as a fixture unless
  there is good reason to classify it as a chattel.
  If it is not attached, the presumption is reversed: it is to be classified as a chattel unless there is good reason to classify it as a fixture.

Ratio of the case:
- “There is no doubt that the general maxim of the law is that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of the case, and mainly two circumstances, viz the degree of annexation and the object of annexation”

Lord Justice Blackburn:
As a general rule, those things which are annexed to the land become part of the land. But it is difficult to say with precision what would constitute sufficient connection.
Need to look at the circumstances of the case in particular the degree and object of the annexation.
It was held in this case that spinning looms bolted to the floor were fixtures.