These notes were used to achieve a High Distinction in Property A at Monash University, and include both policy and problem question notes. Be aware that at the time this exam was taken Property A was a closed book exam so these notes were used to study and memorise content. The notes cover all course content.
They include clear and easily usable exam problem structures including all relevant cases and legislation, as well as suggestions for likely policy subjects.
The notes are easily navi...
The following is a more accessible 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:
Concept of property 4
Nature and essence of property 4
Hohfeld’s three conceptions of property 4
Felix Cohen article 4
Other notes 5
Justifications for and criticisms of private property 5
Property theories: Ziff’s Hierarchy 5
Justification theories (first order theories in Ziff’s hierarchy) 5
Characteristics of property (second order theory) 8
The characteristics 8
Milirrpum v Nabalco (1971): legal meaning of property, characteristics 8
Mabo v Queensland (No. 2) (1992) 9
Property rights differ from contractual rights 10
Subjects and objects of property 10
Recognition of new forms of proprietary interest 11
Tulk v Moxhay: restrictive covenants 11
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937): property in a spectacle rejected 11
ABC v Lenah Game Meats (2002) 11
Native title 11
Mabo v Queensland (No 2) (1992) 11
Recognition of new rights at current 12
Property in the human body 12
Constitutional protection of property rights 13
Vic CHRR 13
Title to land in Victoria 13
General law title 13
Torrens system title 14
Native title 14
Fragmentation of proprietary interests 15
Fragmentation by reference to time: doctrines of tenure and estate 16
Doctrine of Tenure 16
Doctrine of Estates 17
Fee simple estate (absolute and modified) 17
Life estate 19
The doctrine of waste 21
Fee tail estate 21
Fragmentation by reference to legal and equitable interests 22
Equitable interests 22
Trusts 22
How trusts arise 23
Expressly 23
By operation of equitable principles 23
Fragmentation by reference to time: leasehold estates 23
Definitions 23
Classification of leases 24
Fixed term 24
Periodic 24
Tenancy at will (quasi-leasehold estate) 24
Tenancy at sufferance (quasi-leasehold estate) 24
Characteristics of leases 25
Right to exclusive possession 25
Certainty of duration 25
Regulation of leases 25
Leasehold covenants 25
Express covenants 25
Covenants implied into particular leases by statute 25
Assignment of leases 25
Contractual licences 26
Bare licence 26
Contractual licence 26
Licence coupled with a grant 26
Leases vs contractual licences 27
Wrongful revocation of licences 27
POLICY Q: should contractual licences be a new type of property interest? 28
Servitudes 28
Easements 28
Definition 28
Positive and negative easements 28
Policy questions 28
Security interests 28
Types of security interest 29
Reasons for security interests in lending 30
Mortgages vs term contracts 30
General law mortgage 30
Torrens system mortgages 32
Differences between legal and equitable mortgages 32
General law 32
Torrens system 32
Clogs on the equity of redemption: 33
Unconscionability 33
Acquisition and transfer of proprietary interests: an overview 33
By transfer (from another who already has an interest) 33
By original acquisition 33
Insurance for equitable interests in land (between contract and settlement) 34
Possible policy question 34
Creation of leasehold interests 34
Is an agreement for a lease as good as a lease? 34
Possession and adverse possession 35
Principles of possessory title 35
Justifications for adverse possession 35
Policy issues 36
Limitation periods 37
Adverse possession and human rights 37
A thing (object) in which rights are held
The rights a person (subject) has in relation to a thing (object)
The rights a person (subject) has over other persons in relation to a thing (object).
F Cohen (374) To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private citizen Endorsed: The state |
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Notes: Any definition of property, to be useful, must reflect the fact that property merges by imperceptible degrees into government, contract, force and value’ (374) Cohen
Bentham Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases. (Quoted in F. Cohen 371)
F COHEN (374):
To the world: (slides)
Tax: the state enables you to have your property in the first place and then takes a fee for this.
From reading of article:
Property is not a collection of objects, but the relationship between people and those objects.
Private property is subject to limitations based on the rights of other individuals, therefore people do not generally have the right to do whatever it is they want with their property.
The institution of property may or may not involve external physical objects, but it always involves relationships between people.
Not only is there valueless property, but propertyless value. Property is not wealth (eg if there is no scarcity of an item, that item may cease to be property – eg air. But if there is a scarcity of air, air may be property that can be exchanged for consideration).
Productivity, certainty, enforceability and fairness may be considerations.
Private property may or may not involve a right to use something oneself. It may or may not involve a right to sell, but it will always involve a right to exclude others from doing something.
However a power to exclude will not always involve a property right. The kind of power to exclude that is essential to property rights is the power when you can count upon the state to assist you to enforce your rights (ie there is a predictable action the state will take – “established expectations” per Bentham. Property is a function of government and sovereignty.
In conclusion: “private property is a relationship among human beings such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision.” (Note that the word “exclude” in relation to property relates to the WHOLE WORLD).
Property is a bundle of rights (eg more than one person may hold rights, or one person may hold many rights)
Different societies have different systems
Private property –individual...
Buy the full version of these notes or essay plans and more in our Property A Notes.
These notes were used to achieve a High Distinction in Property A at Monash University, and include both policy and problem question notes. Be aware that at the time this exam was taken Property A was a closed book exam so these notes were used to study and memorise content. The notes cover all course content.
They include clear and easily usable exam problem structures including all relevant cases and legislation, as well as suggestions for likely policy subjects.
The notes are easily navi...
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