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Characteristics Of Property (Second Order Theory) Notes

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This is an extract of our Characteristics Of Property (Second Order Theory) document, which we sell as part of our Property A Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property A Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Characteristics of property (second order theory) The characteristics Ownership (the ultimate right other than Crown rights) of an object generally includes the right:To use: can use in any way you want. However this is not unrestricted. On land - you can prevent people coming on racist/sexist conditions. Can't cause a nuisance.To exclude others from the thing: there are restrictions on this eg can't exclude certain state organisations (eg police) in certain casesTo alienate: ie to dispose of one's interest in the thing eg selling, gifting. Not a feature of all property rights - eg Native Title cannot be alienated other than to the Crown.

Note overlap with Posner's theories here. These are characteristic and all may not always be present Milirrpum v Nabalco (1971): legal meaning of property, characteristics Case regarding the legal meaning of property.

? Members of Yolgnu people at Yirrkala claimed mining lease interfered with their native title rights which existed from time immemorial
? Their claim was rejected by Blackburn J (NT Sup Crt) Concerned the Gove Peninsula. Yolgnu claimed mining lease interfered with their Native Title which had existed from time immemorial. Their claim was rejected by Blackburn J (NTSC). Blackburn J's Decision
? Held: Although Ps had proved an established recognisable system of law existed, the usage of the land did not fall within our system of interests which we ascribe as private property
? Plaintiffs had a right along with members of other clans to use and enjoy the land, but no right to exclude others or to alienate Note: Cf 2+3 (justfications for PY - labour theory and selfrealisation) - many first Australians believe they belong to the land rather than that the land belongs to them: T&D 1.3 Blackburn denied the claim because although Y showed they had a system of law, the usage of the land did not fall within the CL system of interests which we ascribe as private property. He went through the three criteria: ticked on criteria 1 (to use) but failed to have rights under criteria 2 (exclude others) and 3 (alienate the land). As a result the proprietary interest was not recognised. (1.8) Note that Blackburn J emphasised that not all 3 of the characteristics mentioned have to be present in every case for a property right to exist.

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