Propery Flashcards
(35 cards)
What is Property
Something which a person owns, or which is capable of ownership
Property object v property rights
property object - thing itself eg keys
property rights - the right to act related to the property object (not absolute rights, they can travel with property)
eg the right to:
use and enjoy it
to sell it
dispose of it by will or gift
retain possession of it for any period
mortgage it and let it
destroy it
Intellectual property definition
Intellectual property describes the results of human intellectual effort and the goodwill built up in names, logos, trademarks etc
JUSTIFICATIONS FOR THE INTELLECTUAL PROPERTY (IP) LAW
*Protects new technological developments
- prevent free riding
- incentive to innovate
*As security to ensure that people who funded research get payoff
*Protects rights of original inventor or creator as well as those who acquire the IP from them can transfer ownership and licence of it
–IP rights not just about the right to own, but also the right to exploit and stop others doing so
*Protects business reputation and good will
Geographical indications (wine and spirits) registration act 2006
*In New Zealand, in the case of wine and spirits, it is possible to
In NZ you can register the name of a region or locality to wine and spirits if its tied to something spesific (rain, soil etc) from that region which has a given a particular quality.
–There are currently 23 registered
*Due to a European Union Free Trade Agreement New Zealand also provides protection for 1,975 EU geographical indications (GIs) used on a wide range of products, mostly foods and beverages
Europeans came up with this concept, happen all over the world
NZ and EU mutually protecting each others geographical indications
land ownership in NZ - history
*Historically all the land belonged to Māori.
*1840 transfer of sovereignty to the Crown when Māori land came under the English doctrine of tenure
–i.e. all title is derived from the Crown and the Crown owns all land (except Māori customary land, foreshore and seabed)
land ownership in NZ - current
‘estate’ in relation to the land is the most comprehensive ownership of land
*Land can be co-owned
Tenancy in common (land is owned together in equal or unequal shares potentially depending on contribution)… eg buy with flatmate, can sell share when they wanna go
Joint tenancy (2 or more people own as if single owner) buy together and sell together, as one unit
Torren’s system
ownership and transfer of ownership management
- used since 1870 system of land registration
- all land cert of title (the electronic register) shows all current legal interests in that land
- use is compulsory, no legal interest in land may be created except by registration under the Land Transfer Act 2017.
Torren’s system principles
- mirror principle. Register accurately + completely reflects the state of title
- curtain principle. purchaser should not worry about trusts / other interests behind curtain of register
- Insurance principle. provides a state guarantee to the title and the interests registered on it
And the state provides for losses incurred as a result of errors in the registry. - give people confidence
Dealings with land
everything that happens with land is affected by the registration of an appropriate document
- transfer of ownership (buying / selling)
joint tennant
Tennancy in common
- easement (right of way across land)
- mortgage (on cert title)
- caveat / notice of claim
warning, a claim to the land
eg. someone warning to take your land for payment of something else
- covenant eg fencing, which ones are you responsible for
- notices under the resource management act 1991
transfer of ownership / title in personal property
gift, sale, will, operation of law (eg made insolvent)
This is generally governed by the sale of goods provisions in the Contracts and Commercial Law Act
*A contract for sale transfers ownership from seller to buyer - immediately or in the future
*Ownership is not equivalent to possession of the goods
Can own to sell… own to rent out
*Ownership can pass with payment for the goods but does not necessarily.
Eg buying goods in future but paid for them, now
transfer of intangible property
–Even though intangible property has no physical existance, it may have a physical presence (such as a share certificate), this is a record of the underlying rights that ownership of a share provides
- Intangible property may still be Sold/gifted/transferred.
- Different rules and procedures apply according to the type of property but transfer through formalised documentation is common.
relevance of ownership of personal property
why do we care who owns personal property
–Who can sell the goods or use them as collateral
–Who takes the loss if the goods are lost or damaged…
–Obligations to insure or ability to claim on insurance
–The rights to the goods if the buyer/seller becomes insolvent or bankrupt.
(Who owns goods relevant to buyer/seller becomes insolvent / bankrupt… insolvency = lots of creditors wanting to take goods… if they know / can prove its their goods, they can take it, otherwise miss out)
–Ability to sue third parties
TRANSFER OF OWNERSHIP OF GOODS - when
Ownership in goods passes when the parties intend it to pass.
To determine intention
–the terms of the contract
–the conduct of the parties
–and the surrounding circumstances
One party taking out insurance of the goods, intention to own
Nemo dat rule
“one who does not have title cannot pass title”
Eg if someone took car ownership papers from you, pretended to sell the car to someone else, the “seller” doent have title so they cant give title to new owner = You will still have ownership ….. New owner paid for it, they are innocent, but a way to decipher who gets to keep goods
*Nemo dat favours the owner: i.e person with title
–Exceptions to the nemo dat rule may arise where the rightful owner has intentionally or neglectfully allowed a miscreant to represent themselves as the true owner.
If owner acted in a way to create impression that person selling car was their agent
–There are also some exceptions under the Personal Property Securities Act 1999
why learn rental law
effects us, can use the knowledge to get result we want… knowing rights people treat us better
max bond
4 weeks rent (increase/decrease with rent) decrease refund to tenant
landlord who contravenes this section of the act commits a unlawful act could get a fine of up to 3K
rental law NZ history
before 1980, residential tenancy law not very distinct
residential tenancies act 1986 tenancy law gathered in one place
recognise power imbalance between renter and tenant
landloard’s property, tenant’s home
Family violence - when can you leave
At least 2 days’ notice to the landlord if
(A)the notice is accompanied by qualifying evidence that either or both of the following apply:
(i) the tenant has been a victim of family violence while a tenant of the premises:
(ii) the tenant’s dependant has been a victim of family violence while residing at the premises with the tenant; and
(b) the notice is in the approved form and includes the prescribed information.
tenant’s responsibilities - damage/repairs
section 40 - notify the landlord of any damage to the premises or any need of repairs
If landlord doesn’t do repairs, can you do repairs and get compensated?
residential tennancies act
section 45 D
Compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where - all apply
- not from breach of tenancy
- likely to cause injury to persons or property or is otherwise serious and urgent
- the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so
how to find tenancy law
residential tenancies act 1986
standard form tenancy agreement
tenancy services
community law manual
citizens advice bureau - best?
tenancy tribunal decisions
reddit?
healthy home standards
no cause evictions
no cause eviction = no enforceability of healthy home standards…. you tell your landlord they arent meeting healthy home standards, they evict you
national govt bought back no cause evictions = can evict tenant without giving them a reason
residential tenancy law = consumer protection legislation, there ‘should’ be minimum standards
cant be evicted in retaliation for enforcing your rights - but hard to prove
balancing power between landlord and tenant
renters united (pressure group), tenants union wanted to get rid of no cause eviction - need to give people a reason.
alters the balance of the rights and obligations and the enforceability of those rights of one of the parties
Gives too much power to landlord
