week 1 Flashcards
What are the defining characteristics of property?
A relationship involving rights of excludability and transferability.
How does something become property?
Property is a social construct
- Economic, social, political, moral, cultural justifications / contraints.
What are the two types of property?
- Real property (realty)
- personal property (personality)
What is real property?
Realty - land, houses
What is personal property?
Tangable chattels (goods) and intangable property
What is the Nemo dat quod non habet (Nemo dat) principle?
Nobody can give what they do not have.
- A person’s title to a chattel depends on the title of the person from whom they got it.
How many people can have rights in property of one chattel?
Multiple people can have distinct proprietary rights in the same thing at the same time.
What is an example of multiple people may have distinct proprietary rights in the same thing?
- Landlord/lessee
- Ann’s VW
Are ownership and posession the same thing?
NO! They are very distinct.
What are the three key property torts?
- Trespass
- Conversion
- Detinue
Who are proprietary rights good against?
Proprietary rights are good against strangers
Who are personal rights good against?
Personal rights are good against parties
What are property torts used for?
A way to obtain redress for unlawful interferences with chattels that are grounded in concepts of possession rather than ownership
What is trespass?
Unlawful interference with possession
What is possession?
- Physical control
+ - Intent/the right to exclude others
Can you have posession over something that you are not in physical control of? Example.
Yes. Think cuttlery at a restaurant / dinner party.
what is the right to immediate posession?
- A question of law as opposed to a question of fact
- Where an owner has retained there right to possession of that thing
What are the elements of trespass?
Plaintiff in possession
Intentional act by defendant
Intentional law is unlawful interference
Who can rely on trespass?
Very wide range of people, just need to have possession. Can include thieves.
Examples of trespass:
Theft
Taking, removing, damaging property
Asporation – carrying away something
Destruction of goods
Facts of Wilson v New Brighton Panelbeaters ltd
- Wilson left his car in his driveway carport while at the beach with his family
- “Walters” calls NBP and says it is his car and to move it to another location
- NBP moved the car
- Walters vanishes
- Wilson sues NBP
- Wilson wins
What was the reasoning of the court?
- The car was within Wilson’s possession
- The tow truck operator acts intentionally
- This interference was unlawful as no consent had been given by Wilson
- Therefore NBP found guilty of trespass
What are the facts od Penfolds Wines v Elliot?
- Penfolds sold wine in branded botles; retained ownership of them
- Elliott (hotelier), obtains bottles, consensually, from his brother/customers
- Elliott fills bottles with house wine; supplies to “Branded Bottle Association of NSW”
- Penfolds sued, including in trespass
Held:
- Even though Penfold owned the bottles, the customer was in possession and gave them willingly to Elliott
- Penfold may have right of immediate possession, but Elliott never trespassed on actual possession
What are the consequences of trespass?
A) compensation for loss/damage to property (returning impacted party to state before the trespass)
B) Consequential damages - Thurston v Charles (Covers flow-on costs)
C) Vindictory charges: trespass is actionable per se – without loss
At least for asporation/taking away
Simple intentional touching of a chattel causing no damage is less settled
Thurston v Charles
Charles invaded Thurston’s privacy and caused consequential damages – further talking to employer. This created lasting impacts to her job etc. Thurston was awarded consequential damages.
