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Law Notes Property, Equity and Trusts 1 Notes

The Concept Of Property Notes

Updated The Concept Of Property Notes

Property, Equity and Trusts 1 Notes

Property, Equity and Trusts 1

Approximately 320 pages

The old Property, Equity & Trusts subject at UNSW. Dealt primarily with old system. Contents include detailed case notes (and super summaries ideal for use in an open book exam) and article summaries on the following classes:
Class 1&2 – The Concept of Property
Class 3&4 - Goods
Class 5&6 - Possession of Land
Class 7 - Limitation of Actions
Class 8 - The Doctrine of Tenure and Estates; Determinable and Conditional and Future Interests, The Doctrine of Waste, Fragmentation of legal/beneficial...

The following is a more accessible plain text extract of the PDF sample above, taken from our Property, Equity and Trusts 1 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

The Concept of Property

Some points brought up include:

Introduction

  • The approach to property law in capitalist societies was to give extensive protection to private property because it was an essential incentive of wealth creation

  • Property, like most other fields of law, can’t be fully explained in doctrinal terms; the social and political context must be taken into account

What is Property?

  • Property can be best described as a relation between persons in relation to things (Felix Cohen)

    • Wesley Hohfield suggests a tension between two definitions of property – one focussed on a physical object to which legal rights and privileges are attached and the other to legal interests in that object

    • Kevin and Susan Francis Gray“It is infinitely more accurate, therefore, to say that one has property in a thing than to declare that the thing is one’s property”

  • Kevin and Susan Francis Gray (The idea of Property Law) focus on the gradations of property that one may have in a resource as the central idea in land law.

    • They suggest three predominant models of property: empirical facts, artificially defined rights or “duty laden” allocations of social utility and that the concept of property oscillates between considering property as fact, right or responsibility

  • In Millirpum v Nabalco Blackburn J suggested that property implies:

    • The right to enjoy or use

      • But this does not necessarily imply full/exclusive ownership (Yanner v Eaton [1999])

      • The dominion of the owner over property does not remain fixed but varies with different types of property (Wily v St George Partnership Banking [1999])

    • The right to alienate

      • There are many examples of non-alienable property (R v Toohey; Ex parte Meneling Station Pty Ltd [1982]) including those expressly decided so b statute or even the right of a beneficiary through a will for permanent residence (Re Potter [1970])

    • The right to exclude

      • In general property does entail this right – one that can be exercised against others

      • Jointly enjoyed rights (e.g. to fish/navigate) are not proprietary but rather public rights

      • In Stow v Mineral Holdings (Australia) Pty Ltd Aickin J distinguished between the right of any citizen (e.g. the Warden of a National Park) to the right of someone actually holding an estate or interest in land (wich could include legal interests such as a leasehold estate or incorporeal interests like easements and profits

Questions
1.13

  • The right to walk through a national park is a public, rather than property right, because this right is not proprietary and does not involve the holding of an actual interest in the land (Stow v Mineral Holdings)

  • Yes, I do agree (mainly because it logically follows from the idea of ownership) – in the case of a right to fish and navigate they are not property rights because it has no hallmark of property aside from the right to enjoy or use.

  • No, the landlord does not – but the concept need not be transferred. The giving of a lease can be seen as transferring part of a property right to another for a certain period of time

  • It is not necessarily true to follow the line of reasoning that someone who may exclude has a property right. Blackburn J’s indicia in Millirpum are not exhaustive and neither of the three are necessary or sufficient conditions for something to be property. A government servant, for example, who may exclude others from using a park, does not necessarily have an interest in that park.

Property Rights and Contractual Rights

  • Property rights are rights over things, against other persons; contractual rights are rights against particular persons – but property rights may arise from a contract (e.g. specific performance)

  • In general, contracts in relation to land attract the remedy of specific performance

  • But there are distinctions where a right granted by the owner is insufficiently substantial to confer on the non-owner and definable interest in the item (e.g. licenses don’t give rise to proprietary interests)

Licenses: bare, contractual, coupled with an interest

  • Licenses arise where permission is given by one to another to do an act which would otherwise be a trespass

  • There are three broad kinds of licenses:

    • Bare license – no association with a contractual relation and may be revoked at the will of the licensor for any reason whatsoever (Wood v Leadbitter) and upon doing so the licensee must leave within reasonable time

    • Contractual license – arises from a contract and subject to ordinary principles of contract. If revoked, breach usually sounds in the value of the ticket but may be increased if pleasure or enjoyment is an implied promise in the contract (Jarvis v Swan Tours)

    • Proprietary License – a licence is coupled with the grant of a proprietary interest – cannot be revoked

King v David Allen & Sons, Billposting Ltd (1916) 2 AC 54

Facts: The appellant held the fee simple in premises and made an agreement with the respondents to give them permission to advertise on a wall of a theatre erected on the premises. Before the license expired the appellant agreed with a company about to be formed to assign a 40 year lease with the interest in the agreement between the appellant and respondent ratified b the new company. The agreement was never incorporated into the lease and upon attempting to post their bills on the wall the respondents were forcibly removed. The respondents commenced action against the appellants who tried to bring the company in as a third party but were refused.

Lord Buckmaster LC:

  • The contract between K and D creates nothing more than a personal obligation – the sole right of the respondent is to fix bills against a flank wall and this does not arise from a relationship of landlord/tenant, grantor/grantee of an easement.

  • But whatever rights have been created have undoubtedly been taken away by the actions of Mr King in enabling the prevention of the respondents from exercising their rights and he is accordingly liable in damages

  • ...

Buy the full version of these notes or essay plans and more in our Property, Equity and Trusts 1 Notes.