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General – Concepts of Property

‘Bundle of rights’ – Yanner v Eaton

Main rights (Milirrpum v Nabalco) – Right to:

o Use and enjoy; exclude others; alienate.

Enforceable against world-at-large, unlike contracts personal obligations (King v David

Allen).

Court-created property:

o Restrictive covenants (Tulk v Moxay).

o NOT in a spectacle (Victoria Park Racing v Taylor; ABC v Lenah Game Meats).

o NOT human body/tissue (Moore v Regents).

Terminology:

o Real property

Incorporeal hereditaments (Rights unable to be inherited – e.g. easements).

Corporeal hereditaments (Things able to be inherited – e.g. fixtures).

o Personal property

Chattels real (leasehold interest).

Chattels personal (movable property).

Choses in possession (tangible items – e.g. chair).

Choses in action (intangible things – e.g. outstanding debt).

Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs. Credit: Christopher Angus.

http://law.timdavis.com.au/

Doctrine of Fixtures

How can you tell if something is a fixture, not a chattel?

o Two-step test (Belgrave v Barlin-Scott), but regard all circumstances of a case

(NAB v Blacker):

1. Degree of annexation.

o Prima facie fixture if attached to land to any extent except own

weight.

o If PF fixture, burden of proof on whoever argues it is chattel.

o If PF chattel, burden of proof on whoever argues it is fixture.

2. Purpose of annexation.

o Fixture if object is to remain there permanently for a

indefinite/substantial period of time.

o If only there temporarily, then chattel.

o If can be removed without expense/inconvenience/damage to

property, likely to be chattels (NAB v Blacker).

Removal of Fixtures

Tenant must get landlord’s consent to install fixtures (Residential Tenancies Act s 64(1)).

Tenant who installs fixtures in rental property owns then and can remove them before

lease terminates. (Property Law Act s 154A(1)).

o However, can’t remove fixtures once agreement ends.

o Must restore original look of premises, or compensate accordingly (s 154A(2);

RTA s 64(2)).



Title, Ownership and Possession

Land

Possession:

o ‘a conclusion of law defining the nature and status of a particular relationship

of control by a person over land’ (Toohey J, Mabo v Queensland (No 2)).

1. Title:

o Gives rise to title good against all but a better claim (Mabo; Perry v Clissold).

Goods

2. Possession/Title (Jeffries v Great Western Railway Company):

o Person in possession of goods has as good a title as any stranger.

o Others must demonstrate better title to claim rightful possession (The

Winkfield).



Adverse Possession

1. How long until title gained by AP?

Land - 15 years (Limitation of Actions Act s 8).

o Not Crown property (s 7).

Goods - 6 years (s 6).

Title extinguishes after required time passes (s 18).

2. When does AP start?

Owner out of possession (s 9(1)), AP in possession (s 14(1)).

3. What is considered ‘possession’?

Factual possession - evidence that land being used.

o ‘Open, not secret; peaceful, not by force; adverse, not by consent’ (Mulcahy).

Admission of title not inconsistent with AP being in possession (J A

Pye v Graham; Whittlesea).

However, obtaining consent from owner to be there means AP

defeated (Whittlesea).

o AP must have sufficient degree of physical custody and control (Whittlesea v

Abbatangelo).

Enclosing land (Buckinghamshire).

Sole access to land, e.g. key to gate (J A Pye).

Use of land for recreation/commerce, maintenance performed

(Whittlesea).

Intention to possess.

o Must show intention to exclude others from land, including titleholder

(Buckinghamshire).

o Nature of acts irrelevant if no intention can be proven (J A Pye).



4. What if there are a series of APs (Mulcahy v Curramore)?

Has to be continuous and uninterrupted AP by trespassers - previous APs only

dispossessed (i.e. still hold claim to land).

o If consensual sale of land occurs a break is acceptable since it takes time to

move between properties.

cf. If one AP abandons property and at a later time period another AP

comes along, time cannot continue running.

NOTE: If multiples APs from A-E, E would win claim against titleholder but lose

against A-D.

o Unless other AP titles extinguished as well (i.e. been out of possession for 15

years).

5. How do you stop time running?

Initiate court proceedings – stops from that date (s 16).

6. Are there unique situations where other rules apply?

Wills – if you inherit a will, you can take action from date of death (s 9(2)).

Leases – a person can AP the lease of another.

o Reversionary:

Once lease expires reversionary interest goes back to lessor. Time

against lessor starts when lease ends (s 10(1)).

o i.e. A get AP over B’s lease, but once lease expires reverts to C.

A then has to wait another 15 years before claiming AP against

C.

o Remainder:

If lease left in remainder, lessor has different time limit to claim

possession and prevent title being extinguished:

o 6 years, or remainder of APs time limit - whichever longest (s

10(2)).

Tenancy-at-will (i.e. person living rent-free on property):

o Time limit of 16 years

15 + 1 extra year to sort things out (s 13(1)).

Periodic tenancy (e.g. month-to-month, yearly):

o After expiry of first time period without payment of rent, time limit for AP

begins (s 13(2)).



Fragmentation

Doctrine of Estates – Types of interests

Fee simple

Life estate

Fee tail – Used to keep land in one family.

Estate pour autre vie – life estate to another.

Conditional fee simple – If criteria not met, lose title.

Determinable fee simple – Ends if certain incident occurs (e.g. A remarries).

Future Interest

Reversion

Remainder

Contingent remainder – e.g. A for life, then A’s oldest child. Contingent on A having

child.

Interest vested in possession – When B dies and C gets interest.

Interest vested in interest – C will have definite interest in land once A dies.



Leases

Lease - required characteristics

1. Is there exclusive possession and control of the land?

If exclusive possession present, more likely to be lease.

Substance of agreement of primary importance, not words used (KJRR v State

Revenue; Radaich v Smith).

2. Is there certainty of duration?

Must have a specifically defined end date - if uncertain, lease invalid.

o Examples:

End of war (Lace v Chantler) and end of peanut harvest (Bishop v

Taylor) too uncertain.

‘When other party wishes to use land’ uncertain, more so if party no

longer has proprietal rights over land (Prudential Assurance).

3. Is rent necessary?

Probably not – may be regarded as consideration under a contract.

Can still have property interest without consideration.

Contractual License - rights

1. Does licensee have any rights under property law?

At law, no - owner can revoke contract (Cowell v Rosehill Racecourse).

Breach of contract damages can be awarded, not injunction under law though.

2. Does licensee have rights under equity?

Possibly if wrongful revocation:

o Must be future license, notice to revocate must be too short, must show why

damages inadequate (Heidke v SCC).

o Implied clause in contractual licenses that licensor does not wrongfully revoke

license - i.e. licensor unlikely to be granted injunction if at fault (Sigma v

Maryvell).

3. Does licensee have any rights against third parties?

If no proprietary interest, cannot enforce rights (David v King Allen).



Licensees cannot sue for trespass if no proprietary interest (Georgeski v Owners

Corp).

4. So to summarise, what remedies are available for breaching a license?

Law – damages only.

Equity – injunction/specific performance only if can show damages insufficient.



Trusts

What type of trust is it?

Express trust - in law.

o Must be in writing - Property Law Act s 53(1).

Resulting trust - in equity.

Constructive trust - in equity.

Resulting Trust

1. Is a resulting trust presumed in this situation?

Yes if person contributes to purchase price but name not on title.

Gives each purchaser interest in property proportional to contribution amount

(Calverley v Green).

o No trust if proportions equal…

2. Can this presumption be rebutted?

Possibly – person rebutting has burden to proof to establish:

o Effective gift from purchaser to transferee (person on title).

o Presumption of advancement applies (Cummins v Cummins).

Only husband-wife, parent-child, not vice-versa or de factos.

Can also be rebutted if evidence that purchaser intended to retain

interest.

Constructive Trusts

1. Do facts fit into one of the following?

Common intention both parties have interest?

o Go to CICT.

If no common intention, joint endeavour/relationship?

o Baumgartner trust.

Common Intention Constructive Trust (CICT; Ogilvie v Ryan )



1. Is there a common intention that both parties would have beneficial interest in property?

Conduct of parties relevant, formal agreement unnecessary.

2. Did claimant act to their detriment, on reliance of common intention?

e.g. Claimant looked after titleholder, spent money maintaining home.

3. Is it unconscionable for legal owner to retain claimant’s benefit?

e.g. No home for claimant, loss of income/time/etc.

Baumgartner Constructive Trust ( Baumgartner v Baumgartner)

1. Was there a joint endeavour/relationship?

2. Were resources pooled for joint endeavour?

e.g. Money jointly went to pay mortgage off, or claimant’s income went to

maintaining home.

3. Did relationship end without attributable blame?

Relationship breakdown not included - no moral concerns.

4. Is it unconscionable for legal owner to retain claimant’s benefit?

e.g. No home for claimant, loss of income/time/etc.

NOTE: CICT and Baumgartner equitable remedies, so must consider all circumstances to

decide if such a remedy appropriate and necessary (Boumelhelm).

Remedies – Estoppel

1. Have the following elements been satisfied (Inwards v Baker)?

Representation, reliance, detriment, unconscionability.

Primary focus is unconscionable conduct.

Representation replaces common intention.

2. What damages can the claimant get if estoppel upheld?

Generally expectation (i.e. interest in property).

However, if this causes further unjustness, reliance may be alternative (e.g. damages;

Giumelli v Giumelli).



Co-ownership*Relevant if someone in question has died and dispute over ownership.

Co-owners can be:

JT at law and in equity - starting point.

TIC at law and in equity.

JT at law, TIC in equity - Malayan Credit.

o NOT TIC in law, JT in equity (?)

Which co-ownership initially?

Joint Tenancy (JT)

1. Have multiple parties registered the property together?

Presumption of JT at law - TLA s 30(2):

2. If this isn’t the case, are the following elements present?

Four unities:

o Possession - Tenants simultaneously entitled to land use.

o Interest - All tenants hold same.

o Title - Hold title under same disposition (conveyance, Will).

o Time - Received property at same time.

No words of severance in instrument (Robertson v Preston)

o e.g. ‘Property left to A & B equally’

Jus accrescendi - right of survivorship (PLA s 184)

If above met, JT likely.

o If not, tenancy-in-common (TIC).

Tenancy-in-common (TIC)

1. What elements constitute TIC?

Distinct shares of property - only requires unity of possession.

o If TIC is possible to argue resulting trust (?)

2. When are TICs favoured?

In equity, particularly when:

o Unequal purchase price contributions (Bull v Bull).

*Calverley v Green - research further re: mortgages.



o Mortgagee advances funds and in return gets proprietary interest (Re

Jackson).

o Business partners (Lake v Craddock).

Even if JTs in law, if property clearly held jointly for business

purposes (i.e. divided rent, space, outgoings) likely TIC in equity

(Malayan Credit).

Sole ownership at law, concurrent ownership in equity?

*i.e. One person on title, but actually JT or TIC?

Yes (Baumgartner).

Can argue for both JT and TIC if sole ownership at law (Vedejs)

o If common intention to be JTs established, claimant can argue CICT and get

whole property via jus accrescendi.

o If not possible, can at least claim TIC interest via other forms of trust (e.g.

Baumgartner).



Severance

Has JT been severed?

At law?

o Needs registration to do so (TLA s 30(2)).

o Encumberance?

o If severed at law, will also sever at equity.

At equity? Summary below, followed by examples:

o Alienation (unilateral).

Interest to stranger by:

Effective gift (Corrin v Patton).

Sale.

Declaration of trust.

Interest to another JT (Wright v Gibbons).

Interest to oneself (PLA s 72(3)).

o Mutual agreement – express written/oral (Abela).

o Merger

o Course of dealing (Williams v Hensman).

o Homicide – Forfeiture rule.

o Bankruptcy (Bankruptcy Act s 58(2)).

Alienation (Unilateral)

Interest granted to stranger

If A and B JTs, and B grants interest to C:

o A and C are held to be TICs (Corrin v Patton).

If A, B, C JTs, A grants interest to D:

o B and C JTs - 2/3rds of property.

o D TIC - 1/3rd property.

This is because unity of time/title ended.

Interest granted to another JT

If A, B, C JTs, A transfers interest to B:

o B TIC for 1/3rd property.



o B & C JTs for 2/3rd property.

If A and B cross-transfer interests?

o Effective at severing JT (Wright v Gibbons).

Interest granted to oneself

Can alienate to upon registration of property (PLA s 72(3)).

o Unilateral declaration of intention to sever.

Mortgages/Leases

Mortgage will not of itself sever JT (Lyons v Lyons).

Other types of severance

Mutural Agreement

If express agreement (written or oral), then can be performed (Abela v Public Trustee).

o In above case express oral agreement meant that court would not grant JT right to

wife after separated husband’s death.

Course of dealing

Severance possible if conduct indicates tenants treated one another as TICs, not JTs

(Willams v Hensman).

o Payment of proceeds of sale of JT into separate bank accounts sufficient (Abela).

Homicide

Severance occurs immediately – forfeiture rule.

Bankruptcy

Severance occurs:

o Trustee in bankruptcy holds property as TIC for creditors (Bankruptcy Act s

58(2)).

Adverse Possession and Co-ownership

Can AP another co-owner.

o However, co-owner can stop this by seeking account of profit (PLA s 234).



Rights and duties of co-owners

Right to possession

Control over whole of land, trespass cannot be instigated between co-owners unless one

has excluded the other from possession.

Occupation rent?

No order for rent unless occupying co-owner seeking compensation, has been excluded

from occupation or suffered detriment as not practicable to occupy land (PLA s 233(3)).

Order for compensation/accounting on divide or sale

Co-owner can order division/sale of land or goods (PLA s 225).

o VCAT can make any order to see just and fair sale (s 228).

o Sale/division preferred to physical division (s 229).

o VCAT can divide land differently from co-owners’ entitlements or compensate

accordingly (s 230).

VCAT may order (s 233(1)):

o Compensation/reimbursement for improvements (a);

o Adjust interest in land to take account of amounts payable by co-owners (c).

VCAT must consider (s 233(2)):

o Whether co-owner has improved/maintained property, paid higher share of

rent/whether should pay rent, caused damage.

Orders for account of profits

VCAT may order account at sale/division (s 233(1)(b)), or during co-ownership (s 234).

Co-owner liable to account for receipt of more than just/proportionate share (s 28A).

o Common law:

Can bring action against co-owner for receiving more than fair share

(Statute of Anne).

However, not applicable if profits fruits of one’s own labour (Henderson v

Eason).



Acquisition of Property Interests

Can be done by:

Derivative acquisition – Transfer from someone already with property interest.

o Sale or gift (consensual transactions).

o Action of law/equity (bankruptcy, imposition of trust).

Adverse possession

Original acquisition – Title created/manufactured, brand new.

Formalities for acquiring interest in property

Sales of Real Property

Legal interest?

1. What interest is it (e.g. fee simple, life interest)?

2. Has there been a legal transfer?

Torrens System - Registration of an instrument of transfer (Transfer of Land Act s

40(1)).

o Once registered, acts like a deed (s 40(2)).

General law – Deed transfer (Property Law Act s 52(1)).

o Must be signed/sealed and delivered (s 73(1)).

3. If no, then not a legal interest - see equitable interest.

Equitable Interest?

1. Is it a valid contract?

Must contain offer, acceptance, consideration, intention to create legal relations.

o If no consideration, may be gift instead.

2. Are appropriate contract formalities satisfied?

Agreement in writing and signed by party to be charged (Instruments Act s 126).

o Memos may be accepted, as will multiple documents referencing each other

(ANZ v Widin).

3. Is there sufficient part performance (if oral agreement)?



Must be unequivocally referable to alleged agreement (Maddison v Alderson; ‘Strict

test).

o Acts must be sufficient:

Mason v Clarke - set snares, paid helpers, took rabbits.

Regent v Millett - P improved house, took keys, moved in.

o If mortgage: Deposit of title documents constitutes part performance, even if

by third party (Theodore v Mistford).

Also possible to assess on ‘balance of probabilities’ (Stedman v Stedman), but not

expressly approved by HCA (Regent v Millett).

4. Is contract specifically enforceable?

Must be SE at time contract made (Bunny Industries).

o If so, constructive trust imposed on vendor on purchaser’s behalf.

o However, if sold to another party since specific performance not possible

(though vendor still holds profits on trust for purchaser).

Parties must show ready and willing to perform (Tanwar v Cauchi).

Gifts of Real Property

1. Have the proper formalities been adhered to?

Torrens System registration - TLA s 40(1).

General Law deeds - PLA s 52(1).

2. If not, can equity intervene?

5-step process for registration - execute transfer, hand over transfer, arrange for

certificate of title, lodgement of title, registration.

If donor has done everything he/she needs to do (i.e. up to Step 3), equity can

intervene (Corrin v Patton).

o However, stricter test by Deane J approved in Costin v Costin (NSW):

o Must not be able to get title back, so Step 4 (possibly Step 3, but donor can

revoke authority to obtain certificate).

Other equitable interests in real property

Trusts



o Express trust, evidence in writing (PLA s 53).

o Resulting trust.

o Constructive trust.

Estoppel

o False representation causing detriment - however, financial remuneration given if

unconscionable to award specific performance.

Leases:

o Legal

Torrens - Can register lease if 3 years or longer (TLA s 66(1)).

GL - Lease must be created by deed, except for ones not exceeding 3

years, that take effect in possession, at best rent reasonably obtained

without taking a fine (PLA s 54(2)).

o Equitable

Formed if in writing (s 126); or

Sufficient part performance - Agreement for lease as good as formal lease

if demonstrable that essential terms finalised (Walsh v Lonsdale).



Formalities for acquiring interest in goods

Sales of Goods

1. Is it a formal sale?

If goods transferred, yes. If not, only agreement to sell (Goods Act s 6).

2. Is the buyer a minor, drunk or otherwise incompetent to contract?

Reasonable price must be paid (s 7).

3. How can a sale contract be made?

Writing, orally, bit of both, conduct of parties (s 8).

4. When does property pass?

When parties intended it to pass - based on evidence (s 22)

5. How do you ascertain intention?

If unconditional contract, intention occurs when contract created (s 23).

Gifts of Personal Property

1. Does donor have:

Legal capacity to give gift (i.e. own property)?

Intention to give gift?

o Oral or symbolic intention suitable (Rawlinson v Mort).

2. Has gift been:

Accepted by giftee?

Delivered to giftee?

o Counts as delivery if giftee in possession at time (Re Stoneham).

Must be exclusive possession though (Re Cole).

If giftor still has potential control gift fails (Jones v Lock).

o Symbolic delivery also acceptable so long as giftee has sole control over

property.

Examples: Key (Wrightson v McArthur); Ownership documents

(Rawlinson v Mort).



Statutory Regulation of Land Sales

Cooling Off

Purchaser has 3 business days to give vendor signed notice terminating contract for sale

of land (Sale of Goods Act s 31(2)).

o Notice given directly to vendor or left at address of vendor (s 31(3)).

Purchaser entitled to all money back bar $100 or 0.2% of purchase price, whichever

greater (s 31(4)). Vendor keeps this leftover money.

Above N/A if purchaser an estate agent, has received independent legal advice or has

already bought land from vendor on substantially similar terms (s 31(5)).

If a conspicuous note giving 3 days notice not present with contract as required (s 31(6)),

purchaser can rescind contract at any time before taking possession/receipt of rent or

profits (s 31(7)).

NOTE: Any provision trying to modify this section is void and has no effect (s 31(8)).

Vendors’ Statements

Vendor must give signed statement to purchaser (s 32(1)) containing, inter alia:

o Particulars of mortgages over the land, easements/covenants/other restrictions.

If vendor falsifies this information or doesn’t supply it all, purchaser can rescind contract

before gaining possession/receipt of profits and rents. (s 32(5)).

o Vendor will pay fine if guilty of above knowingly/recklessly (s 32(6)).

o Purchaser can’t rescind if vendor made honest mistake and purchaser in

substantially as good a position as if statute complied with (s 32(7)).

Insurance

If dwelling destroyed/damaged and unfit for habitation, purchaser can rescind contract

within 14 days (s 34).

If the land (not dwelling) is destroyed, purchaser can take advantage of vendor’s

insurance contract (s 35).

o However, if vendor can return land to previous condition then s 35 cannot apply to

the situation (s 36).



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