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Week 2 Classification and Property Boundaries between types of property -…
Week 2 Classification and Property Boundaries between types of property
Terms
Real property, “realty” – LAND
historically “real” property was the only property that could be recovered in common law
recovery was obtained through a “real” action
Personal property, “chattels” – GOODS
foundational distinction is between land (real property) and personal property (‘goods’) is: land is immovable, personal property is not.
divided into two categories
Chattels real - covers lease hold interests
Chattels personal (pure personality)
Choses in posssion
covers movable, physical objects such as books or furniture
Choses in Action
includes intangibles such as patents, copyrights, shares and goodwill
Boundaries of Land
Shelfer v City of London Electric Lighting Co
[1895] 1 Ch 287
Smith LJ, created the “
good working rule
” to determine boundary disputes
Jaggard v Sawye
r [1995] 1 WLR 269
'Good working rule' was applied which also discussed appropriate remedies where an injunction is not appropriate
Defendant proposed to build a driveway over their land to a second property at the back of his land. As an injunction was not able to be awarded, the defendant was awarded damages (see Good working rule)
Good working rule
If the injury to the plaintiff's legal rights is small;
and is one which is capable of being estimated in money;
and is one which can be adequately compensated by a small money payment;
and the case is one in which it would be oppressive to the defendant to grant an injunction; then the damages in substitution for an injunction may be given.
If the defendant by their conduct has commenced works to the point to avoid an injunction, then damages may be assessed in substitution of an injunction.
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd
(2007) 20 VR 311
In considering the Good working rule (GWR), Damages were not awarded in lieu of an injunction with regards to the removal of some cladding, it was said that the GWR did not require the balancing of harms to each party, what needs to be shown is that the hardship caused by the D by granting an injunction is significantly disproportionate to the relief obtained by the P so that to grant it would not be greatly oppressive.
Rights over Air Space
Depsun Pty Ltd v Tahore Holdings Pty Ltd
(1990) 5 BPR 11,314
Bernstein of Leigh (Baron) v Skyviews and General
[1978] 1 QB 479
Griffith J reasoned:
‘[T]he problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of airspace.’
Griffith J: ‘…The best way to strike that balance in our present society was to restrict the rights of an owner in the airspace above his land to such height
as was necessary for the ordinary use and enjoyment of his land and the structures upon it
, and to declare that above that height he had no greater rights in the airspace than any other member of the public.’
Bendal Pty Ltd v Mirvac Projects Pty Ltd
(1991) 23 NSWLR 464 APL
Considered Height - construction facilities and object encroaching upon the air space above adjacent land constituted a trespass fi they were of a nature and a height that would interfere with the ordinary use of the land
Remedy; Injucntion to prohibit flight, there is also the ability to award damages
see good working rule application and applicable cases above
Rights to subsoil and rights to minerals
Bocardo SA v Star Energy UL Onshore Ltd
[2010] 3 WLR 654
‘the rights of the owner of the surface land to the strata beneath it stops at “the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth worrying about”.’
The regulation of minerals under the soil is not governed by both Commonwealth and Queensland legislation.
Mineral Resources Act 1989
(Qld) s 6;
Petroleum Act 1923
(Qld); and
Atomic Energy Act 1953
(Cth) s 35.
The common law continues to govern ownership of subsoil apart from minerals and the legislation referred to above. In this regard, two issues have come before the courts:
(a) extent of a landowner’s rights to minerals vis-a-vis the Crown; and
(b) whether separate title to minerals is recognised under the Property Law Act 1974 (Qld)
Cuius est solum, eius est usque ad coelum et ad inferos
;
“Whoever owns the soil, holds title all the way up to the heavens and down to the depths of hell.”
Fixtures
A fixture is a piece of personal property (a chattel), which has part of the land. In other words, in being affixed to the land (hence the term “fixture[s]”), the chattel has lost the characteristic of being personal property and is now characterised as forming part of the land (real property).
All of the naturally affixed resources such as trees and streams will automatically pass, but so too will other constructed fixtures which have been physically attached to the land for the purposes of benefiting the land.
Tenant’s Fixtures and Right to Remove Fixtures
Residential Tenancies in Queensland
Governed by rules and common law
Right to remove
D’Arcy v Burelii Investments Pty Ltd
(1989) 8 NSWLR 317
Tenant has a reasonable time after the termination of a lease to remove fixtures
New Zealand Government Property Corp v HM & S Ltd
[1982] 1 All ER 624
If after expiration or surrender, a tenant remains in possession by virtue of a new tenancy express or implied, which follows immediately, the tenant is usually still entitled to remove the tenants fixtures
Bain v Brand
(1876) 1 App Cas 762 at 772
While the lease is in force and the fixture is attached to the land, the lessor is said to be the owner of he fixture subject to the tenant;s right of removal
Agricultural Tenancies in Queensland
Governed by Legislation
Pt 8 Div 6 Property Law Act 1974 (Qld): s 155
Elwes v Maw
(1802) 2 East 38; 102 ER 510*
Personal property (Chattels) annexed to land without permission
Concept of “unjust enrichment” see text 1.98 - 1.99 for case examples
s 196 Property Law Act 1974 (Qld) deals with the problem of mistaken improvements
Chateau Douglas Hunter Valley Vineyards Ltd v Chateau Douglas Hunter Valley Winery and Cellars Ltd (Receivers Appointed)
[1978] ALCD 258
Brand v Chris Building Society Pty Ltd
[1957] VR 625
unjust enrichment rejected as principles could not be established by counsel
Doctrine of Fixtures
In determining whether an item of personal property has become a fixture consideration has to be had to two issues
(i)
The first is to evaluate the
degree
of annexation that the chattel has in relation to the land
.
The degree of
annexation test
objectively determined
was it the intention of the owner of the chattel that the chattel remains in a fixed/unmovable position so as to be of benefit to the land now and in the future?
This test requires a consideration of how the chattel is affixed to the land. Consider these questions:
• Is the chattel resting with its own weight on the land, or in some way “connected” to the land?
• Is the chattel able to be moved?
• Is the chattel able to be moved without causing damage to it and/or to the land?
• If the answer to these questions is ‘no’ then the degree of annexation test may suggest that the chattel has become a fixture.
Palumberi v Palumberi
(1986) 4 BPR 9106 Supreme Court of NSW, Equity Division
‘…there has been a perceptible decline in the comparative importance of the degree or mode of annexation, with a tendency to greater emphasis being placed upon…t
he intention with which the item is placed upon the land. This shift has involved a greater reliance upon the individual surrounding circumstances
…’
National Australia Bank v Blacker
[2000] FCA 1458 (as cited in in
Agripower v Blomfield
(ii) The second is to consider the
purpose
or object of annexation of the chattel in relation to the land.
Whether the attachment was for the better enjoyment of the property generally or for the better enjoyment of the land and/or buildings to which it was attached
The nature of the property the subject of affixation;
Whether the item was to be in position either permanently or temporarily; and
The function to be served by the annexation of the item.
National Australia Bank v Blacker [2000] FCA 1458 (as cited in Agripower v Blomfield
Boundaries between adjoining landowners
Doctrine of Accretion
Southern Centre of Theosophy Inc v South Australia
[1982] AC 706
Land ownership with water boundaries includes what is “added to or subtracted from..”
gained by gradual and imperceptible means (accretion) is deemed to be the property of the adjoining landowner
In Qld; is affected by s 10 Land Act 1994 (Qld). The doctrine of accretion applies to Torrens land
under this doctrine the land boundary does not change and the land gained becomes the property of the Crown (the State). Only Queensland has legislated in relation to this issue.
McKeown v Cavalier Yachts Pty Ltd
(1988) Aust Torts Reports 80-172
Land Bounded by Water
At common law, if a non-tidal river was a boundary between 2 lots, the common law presumed that the adjoining landowners owned the alveus ad medium filum (“up to the middle line- literal translation).
The position is now governed in Queensland by legislation. Section 13A Land Act 1994 (Qld) has a
bolished the common law ‘ad medium filum’ rule.
At common Law:- Owner owns the water up to the mean high watermark
Attorney-General v Chambers (1854) 4 De GM & G 206
The owner also owned the alveus – the “bed” or land beneath the water.
Orr Ewing v Colquhoun (1877) 2 AC 839
Encroachments
Disputes concerning buildings erected under mistake
Property Law Act (Qld), Pt 11 Ss 196-197
Encroachments by buildings onto adjoining land
Property Law Act (Qld), ss 182-194.
s 197 Property Law Act 1974 (Qld) remedies
Doctrine of Accession
The doctrine of accession is related to the idea of ‘intermixture’ where separate items of personal property become so intermixed as to be indistinguishable from each other.
i.e. they cannot be separated - chattel affixed to another chattel
Rendell v Associated Fiances Pty Ltd
[1957] VR 604 APL 1.110C
involved the placement of a different engine in a vehicle which was then repossessed.
Accessories continue to belong to their original owner unless it is shown that as a matter of practicability they cannot be identified, or, if identified they have been incorporated to such an extent that they cannot be detached from the vehicle
Closely related to Doctrine of Intermixture
Separate objects are mixed so that they are indistinguishable
Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25; [1979] 3 All ER 961