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Week 1 Concept of Property - Coggle Diagram
Week 1 Concept of Property
Personal Property Securities Act 2009
(Cth)
regulation of personal property interests
See Week 1 lecture material for common definitions
•
Property
– means in a legal sense rights, which people have, to things and in turn legal rights can be divided into personal rights and property rights.
Arguably, terms like, tangible, intangible, corporeal and incorporeal, have increasingly less significance in the law of property. However, the essential distinction between the right to possession and other property rights remains important’.
•
Tangible and Intangible
– also referred to as corporeal and incorporeal.
Tangible (corporeal)
includes the right to possession of some “thing”
intangible (incorporeal)
property rights do not’.
In the Australian context, in terms of property law, we now have basically two frameworks.
First, the framework of legislation, common law rules and equitable principles governing property especially in relation to land and originally derived from the UK through colonial settlement but now entrenched in well developed Australian property law jurisprudence (which we will consider in various topics in this Unit and in LAWS12066 Land Law).
Second, Aboriginal law based on common ownership (including Native Title which we will consider in this Unit).
Australian Constitution through s 51 (xxxi) contains an important constraint on the Commonwealth in relation to the acquisition of property
Property Rights
Nature of rights
A ‘right’ provides a legitimate justification to affect and direct the actions and conduct of right-holders and others.
The distinction between personal rights and property rights is captured in law through the distinction between
rights in personam and rights in rem
.
In rem
- Property law is mostly about rights in rem. The in rem characteristic means that the right is exercisable as against the rest of the world.
In personam
- is a personal right only enforceable as between the particular parties to the contract/relationship
Equity recognises various maxims, one of which is ‘Equity acts in personam’.
Nonetheless, it has been acknowledged by learned authors in the field that this maxim is an incomplete guide to the nature and effect of equitable remedies and the rights and interests they protect.
Many equitable rights and interests are proprietary in nature and are not limited to a personal chose in action against another party.
Individuals need certain fundamental rights within a community in achieving goals. This is the goal-based justification of rights and has been described as the rights as trumps argument (R Dworkin, 1978: 366)
Rights should be viewed in terms of a right-holder’s interest as constituting a sufficient reason to hold others under a duty. This is the duty-based justification of rights. (J Raz, 1986: 166-192)
Nature of property rights
The right to alienate
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 - Assignability is not in all circumstances an essential characteristic of a right of property. By statute some form of propert are expressed to be inalienabe. ..... a proprietary right must be capable in its nature to assumption by third parties
The right to exclude
Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295
This case involved an objection to the grant of a mining licence over land in Tasmania pursuant to the Mining Act (Tas) by an objector. The basis of the objection under the Act was not based on an interest or estate in land. Rather, it was based upon the fact that
Aickin J held,
‘A person holding a prospector’s or exploration licence or a miner’s right would…have an “estate or interest” in the land since he has at least some rights to occupy and take minerals from the land…and is described as “holding the land”.’
In Aickin J’s view, the objectors did not have an estate or interest in the land.
The right to use or enjoy
Yanner v Eaton (1999) 201 CLR 351 - term property does not necessarily mean full, exclusive of beneficial ownership
Wily v St George Partnership Banking Ltd (1999) 84 FCR 423 - property comprised of a legal relations not things and that it was not necessary that 'the dominion of the owner be absolute of fixed'
Boundary between Property and Contract
Cowell v Rosehill Racecourse Co Ltd (1936) 56 CLR 605
P went to a race track and was ejected for being rowdy. The P sued fro assault as he claimed he had a licence and as such had a proprietary interest.
a ticket to a race event is not a licence that instills a proprietary right, it is a contract and as such can be subject to terms of termination.
CJ Latham said that purchasing a ticket to see a spectacle is nothing more that a contractual right, for which there would be remedies, however the remedies applicable to the protection of proprietary interest are not legally or equitably appropriate in this case. There is strictly no grant of any interest.
NSW Rifle Association v Commonwealth (2012) 293 ALR 158
Commonwealth sought to transfer land to the NSW government for conversion into a national park, this would be inconsistent with the P existing use of the land. The P had a contractual arrangement to use the land for a rifle range.
Equity intervened to prevent the transfer of the property to the NSW Government by the Commonwealth government unless there was a agreement remaining in place that allowed the P to continue to enjoy their existing right.
Bare Licence
- a licence that is not associated with contractual relationship between the licensor and licencee, nor with the grant of a proprietary interest in the land - i.e. camping or having a picnic
Licence
- this arises when permission is given by one person to another to act on the licensor's land in a manner that would otherwise constitute trespass.
A licence does not confer a sufficent plentitude of rights over the land to qualify as a proprietary right
King v David Allen & Sons, Billposting Ltd
[1916] 2 AC 54
This is still the preferred position of licensees vis-a-vis (in relation to) third parties.
numerus clausus
principle
'the closed list principle'
do not allow a contractual right to become a right in rem
This is the principle implicitly evoked by the
Law Lords in King v David Allen
where they suggested that if an easement or lease had been created by the parties, either would have qualified as a fully-fledged proprietary interest and would then have bound the incoming tenant. A licence, by contrast, does not come within the class of recognised proprietary interests.
Landowners are not at liberty to customise land rights, the sense of re-working them in an entirely novel way to suit their indivivdual particular needs and circumstances.
Rather any new rights must fit within firmly established pigeon holes, of which the law permits only a small and finite number.
Bropho v Western Australia
[2007] FCA 519
Basically there is no enforceable right of licence against third parties.
Licence - A licence arises when a licensor grants a licensee a contractual right to occupy premises in return for the payment of a licence fee. In law, a licensee is not entitled to exclusive possession of the premises. (
https://jws.com.au/ja-jp/insights/articles/2017-articles/lease-or-licence-know-the-difference#:~:text=Fundamental%20differences%20between%20a%20lease%20and%20a%20licence&text=In%20particular%2C%20a%20lease%20grants,of%20tenure%20as%20a%20lease.&text=a%20lease%20runs%20with%20the%20land
.)
Property Rights and the Rights of Persons
Are Persons Property
Moore v Regents of the University of California (1990) 793 P 2d 479
This is a US case relating to the use of a leukemia patients cells to create a commercial product for the benefit of the doctors. Moore sued for conversion but was unsuccessful. The court found that Moore had no property rights to his discarded cells or to any profits made from them.
Australian legislation example;
Human Tissues Act 1982
(vic) prohibits the trade in human body parts in most circumstances.
English case have determined that if there has been an application of skill with regards to the preservation of a body, then that item is able to be considered property i.e. preservation, embalming etc
Pecar v National Australia Trustees Ltd [1996] NSWSC 2518
Court recognised that a deceased body held in paraffin blocks satisfied the requirement for the requisite of skill to be determined property relying on the decision in the h case of
Doodeward v Spence
Doodeward v Spence (1908) 6 CLR 406
established that if skill was applied in storing a body part then it would amount to being considered property
Roche v Douglas
(2000) 22 WAR 331
contrary view point
determined that human tissue samples are property and the reasoning of work and skill in Doodeward was not required with regards to this determination.
Property Rights and Privacy
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 HCA
The action was one in nuisance regarding the use and enjoyment of the plaintiff’s land. There was an allegation of the ‘unnatural’ use of Taylor’s land. The contention was that, the plaintiff had made its land suitable for use as a racecourse, that the defendants had deprived it to some extent of its ability to use its land for that purpose and therefore there was an unlawful interference with the use and enjoyment of the land
Latham CJ; a spectacle cannot be owned
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199
Grosse v Purvis [2003] QDC 151
Callinan J:
‘..principles for an Australian tort of privacy … need to be worked out on a case by case basis in a distinctly Australian context.
Passing off - the use of a trade name in order to lead the purchaser to believe the gods or services provided belong to the Plaintiff when they do not.
Property and the right to work
Can ones skills be considered property
Dorman v Rodgers
(1982) 148 CLR 365
Gibbs CJ; a right to practice is in itself not capable of being valued
Stephen J; whatever loss may be suffered following deregistration of a medical practitioner is no measure of the value of registration but only reflects the monetary value of the loss of one or more of those personal qualities which doctors are required to possess if they are to engage in the practice of their profession.
Property Rights and Civil Rights
On many occasions civil and political rights will be in conflict with property rights, and courts are frequently required to balance these
Davis v Commonwealth
(1988) 166 CLR 79
This case involved a dispute between the Australian Bicentennial Authority (ABA) and other persons in relation to the use of symbols and expressions and the use of some of these by the ABA for the Commonwealth to celebrate the Bicentenary.
Bicentennial Authority Act 1980 (Cth) were beyond legislative authority of the Commonwealth and that monies appropriated for the ABA and to celebrate the Bicentenary were not authorised under s 83 of the Australian Constitution.
Davis had sought permission to use symbols from the ABA including the figures ‘1788’ and ‘1988’ and had sought to surround a symbol used by the ABA with the words ‘200 YEARS OF SUPPRESSION AND DEPRESSION’
Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power.
Property Rights and Human Rights