Property A Characteristics Of Property Notes

Characteristics of Property:

1. The right to use or enjoy

   • It is not necessary that ‘the dominion of the owner be absolute or fixed’ Wily v Saint George Partnership Banking Ltd

2. The right to alienate

   • Not always an essential characteristic but is generally correct Mason J in R v Toohey

3. The right to exclude

   • This is a private right exercisable against the general public

Title: ownership rights over property as recognised by a legal system

Ownership: the right recognised by the law, in respect to a piece of property to exercise with respect to that property all such rights as by law are capable of being exercised.

The Victorian Charter of Human Rights and Responsibilities Section 20 provides that a person: “must not be deprived of his or her property other than in accordance with the law”

1. Classification of property

   1. Real (Land) immovable

      1. Incorporeal (intangible rights). Describes lesser rights over land

         • Easement

      2. Corporeal (tangible rights). Possessory right.

         • Land (an estate in land)

   2. Personal (Goods) movable

      1. Chattels real (leases)

      2. Chattels personal

         • Tangible: Chose in possession eg. books and furniture

         • Intangible: Chose in action eg. shares, damages

2. What type of land is involved?

   1. Torrents System Land

      1. Registered interest under the Transfer of Land Act 1958

      2. Registering your interest will cure any defect that you had in your interest

   2. General Law Land

      1. Section 44 Property Law Act: Must show chain of title dating back the last 30 years

      2. Ownership must be transferred via deed.

   3. Doctrine of Tenure

      1. The Crown owns all land absolutely

      2. Operated pre-Mabo to obstruct recognition of Native Title

3. Is the interest legal or equitable?

   1. Legal

      1. Through Torrens System registration

   2. Equitable (not enforceable against purchaser of a legal interest who gives value and takes without notice of the equitable interest) Tulk v Moxhay

      1. Restrictive covenant

      2. Beneficiary under Trust: Separates the legal holder and equitable holder of the land

         • Methods:

           1. Person seeking to establish a trust retain the legal/equitable interest in the property, but declares that it is held on trust for the beneficiary

           2. Holder of legal interest may transfer the interest to a 3^rd party (the trustee) with a direction that the interest is to be held on trust for the beneficiary.

         • Express trust:

           1. A conveys land to T on trust for B

           2. It requires writing to create it – section 53 (1) PLA

           3. May be created inter vivos or by will

         • Person may declare him or herself the trustee of property:

           1. A owns Land. A declares himself as trustee of land for B

         • Created via will:

           1. A devises land to T on trust for B1 for life, remainder to B2

         • Remedies (trusts which are imposed by a court exercising equitable jurisdiction)

           1. Constructive trust: one party is placed at a special disadvantage to another and the latter party take unfair advantage of the opportunity

           2. Resulting Trust: title holder of property is a purchaser who has not provided all the funds. In certain circumstances the title holder is deemed to hold the property on trust for the party providing the money

              1. Exception: if you parents have chipped in

              2. Presumption can be rebutted

4. Nature of Title

   1. Title by possession

   2. Adverse possession

      1. If the land is under Torrens system and someone has stayed on your land without consent for more than 15 years, your title is extinguished. The person who stays there was a type of title for those 15 years, not good against owner but others eg. trespassers.

5. Nature of interest

   1. Possessory

      1. Lease

      2. Fee simple

      3. Fee state

   2. Non-possessory (Right of use and enjoyment)

      1. Restrictive covenant

         • A ‘negative agreement’ by which a person (third party) refrains from doing something.

         • It is an equitable right.

         • Did the party know about the RC? Did it ‘go to his conscience? Tulk Moxhay

         • What was the price paid for the land? Was it a lower price to reflect the RC? Tulk v Moxhay

      2. Easement

      3. Profit a prendre

         • Enables a person to take part of the soil or produce of land that someone else owns. It is a right to take from the land, as in the mining of minerals.

      4. Security interest: eg. mortgages

      5. Property in a spectacle

         • There is no property right in a spectacle Victoria Park Racing v Taylor

           1. The law cannot erect fences the Plaintiff is unwilling to provide

           2. Property rights are not unfettered

         • Mere fact information is obtained as a result of trespass does not make it confidential ABC v Lenah Game Meats

         • Property rights are not unfettered. Even if you have ownership it doesn’t mean you can be free from all interferences Victoria Park Racing

      6. Property in the human body

6. Estates

Subjects of the Crown do not ‘own’ land in an absolute sense (Doctrine of Tenure) but hold it ‘of the Crown’ (Doctrine of Estates).

Freehold estates provide the closest interest to ‘ownership’ (as opposed to leasehold estates). They are on uncertain duration.

1. Freehold

   1. Fee simple

      • Equivalent of full ownership Gumana v NT

      • Indefinite duration

      • Methods of alienation:

        1. Inter vivos disposition is a grant during the life of the grantor

        2. Testamentary disposition is a grant by will

      • The crown will assume absolute ownership of that parcel if no one is entitled to it when you die

   2. Life estate and fee simple

      • Two types:

        1. Life estate for the life of the grantee

        2. A life estate for the life of a person other than the grantee (life estate pur auture vie)

      • If life estate was given to B for the life of A, B’s interest is terminated when A dies

        1. What if B dies before A? Doctrine of occupancy: if heirs were specifically mentioned in the grant then it would go to...

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