TOPIC 1: The concept and function of “property” and real property: intro to real property

Question 1

Meaning of property -

Answer 1

Yanner v Eaton:

- property a right, not a thing –> “bundle of legal rights”

Question 2

What relationship does property create

Answer 2

legal relationship btw a person and a thing

Question 3

Outcome of issue in Yanner v Eaton: Was effect of s 7(1) Crown absolute ownership over the “property” of the fauna?

Answer 3

No - Crown’s rights weren’t absolute, but a bundle of rights that could co-exist with Yanner’s native title Rs.

Question 4

What do rights in rem depend on?

Answer 4

the continued existence of something

can be enforced against the ‘whole world’

Question 5

property vs contractual rights

Answer 5

Property Rights: limited no. Rs granted at CL

Contractual Rights: wide range of terms & rights can be contracted for.

Question 6

Outcome of issue in King v David Allen & Sons Billposting: Did the agreement btw the King and the Billposting Company create an interest in the land?

Answer 6

No: the rights created btw them were not proprietary but binding in contract only (only thus enforceable against the King but not against 3rd parties incl. the lessee).

Question 7

In King v Sons Billposting what did the King’s agreement contain?

Answer 7

implied term that King wouldn’t disable himself from carrying out his contractual obligation.

King breached that condition and was liable in damages to Billposting Company.

Question 8

Real property =

Answer 8

real if law gave you ‘real/action remedy to vindicate rights’ –> form of heraditament

Question 9

Personal property

Answer 9

= entitled only to personal rem (would give you damages instead of ur house back)

Question 10

for the grantor to successively transfer a proprietary right to the grantee, the bundle of rights the grantor wishes to vest must

Answer 10

correspond to one of these categories:

1) Legal Fee simple
2) Legal life estate
3) Easement
4) Profit a prendre
5) Chattel ownership
6) Bailment of chattel

Question 11

1) Legal Fee simple

Answer 11

Intention to grant exclusive possession of land ‘forever’

Question 12

2) Legal life estate

Answer 12

Intention to grant exclusive possession of land for the duration of one’s life

Question 13

3) Easement

Answer 13

Intention to grant rights which burden the grantor’s land and benefit the grantee’s land

nonpossessory right to use and/or enter onto the real property of another without possessing it. It is “best typified in the right of way which one landowner, A, may enjoy over the land of another, B”.

Question 14

4) Profit a prendre

Answer 14

R to go onto someone else’s land and remove the natural produce of the land

Question 15

5) Chattel ownership

Answer 15

Right to grant exclusive possession forever

Question 16

6) Bailment of chattel

Answer 16

Right to delivery of exclusive possession with an obligation to redeliver

Question 17

Possession without ownership

Answer 17

a temporary right

Question 18

Ownership

Answer 18

has potential for permanence

- law protects ownership by enforcing the owner’s possession or right to possession

Question 19

Doctrine of tenure

Answer 19

when the Crown has exercised its sovereign power to grant an interest in land

recognised that people could have a proprietary interest in one piece of land at the same time (noting that the Crown is ultimate owner of all land who grants people tenure to have the land)

Question 20

Doctrine of estate

Answer 20

by relying on duration allows for the creation of successive interests (present and future) in the same piece of land

Question 21

The “owner of the land” does not own the land but

Answer 21

owns an estate interest in the land, holding as a ‘tenant’ for the Crown

Question 22

types of estate interest that could be ehld upon trust for another/purpose

Answer 22

1) Fee simple
2) Life estate
3) Fee tail

Question 23

1) Fee simple

Answer 23

• Exclusive possession for unlimited duration - equiv to full ownership of the land

Question 24

2) Life estate

Answer 24

Exclusive possession for duration of one’s life (at end of which it automatically passes to another)

Question 25

Doctrine of tenure and Native Title

Answer 25

radical title of the Crown is consistent with the recognition of native title to land. - Mabo (No 2) Brennan J

Question 26

NT is considered a proprietary right but,

Answer 26

it sits outside the doctrine of estate and system of tenure

Question 27

Radical title is required to support:

Answer 27

1) doctrine of tenure | 2) plenary power of the Crown

Question 28

plenary power of the Crown

Answer 28

crown exercoses its sovereign power to appropriate to itself ownership of parcels of land within the Crown's territory

Question 29

unless sovereign power is exercised by 1) doctrine of tenure or 2) Crown's plenary power

Answer 29

territory will continue to be subject to NT! (NT not extinguished by the acquisition of sovereignty)

Question 30

Definition of NT

Answer 30

NT is the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory (Brennan J - Mabo No 2)

Question 31

Content of NT

Answer 31

comes from traditional law and customs, - can't be transferred but can be surrendered to Crown - possessed by community/group/individual - subject to being extinguished by interest granted by the Crown - May be proprietary/personal/usufructuary

Question 32

If land is terra nullius then, the Crown acquires both

Answer 32

radical title and full beneficial ownership

Question 33

Even if there is NT Crown has right to

Answer 33

1) appropriate land for own use | 2) alienate land to grant it to others

Question 34

Requirements for NT: ATSI group must have 'substantially maintained' their traditional connection with the land by continuing to

Answer 34

1) acknowledge traditional law of the group | 2) observe traditional customs of the group (as much as practicable)

Question 35

If NT ext then it's

Answer 35

effective against world at large, but limited to traditional uses of land

Question 36

If NT not established then

Answer 36

can't be revived for contemporary recognition --> Crown's radical title expands to full beneficial title

Question 37

Principle re extinguishment of NT

Answer 37

Sovereignty carries power to create and extinguish private Rs and interests in land within the Sovereign's territory

Question 38

Can NT be deliberately extinguished by state law?

Answer 38

NO - a state law purporting to do so is inconsistent (s 109 Const) w. Racial Discrimination Act 1975 (Cth) - Mabo No 2

Question 39

Methods of extinguishment

Answer 39

1) Valid statute | 2) W/o legislative backing (doctrine of tenure; exercise of plenary power)

Question 40

Per WA v Brown test, NT extinguished where

Answer 40

rights granted by Crown and NT rights are legally inconsistent to the extent of the inconsistency (logically inconsistent such that the existence of one necessarily implies the non-existence of the other)

Question 41

NT extinguished were

Answer 41

i) exclusive possession is granted (doctrine of tenure) | ii) state appropriates/uses land for permanent public works (plenary power)

Question 42

NT not extinguished where 1)

Answer 42

1) State's appropriation of land for permanent public works is CONSISTENT w continued concurrent enjoyment of NT over land (eg national park)

Question 43

NT not extinguished where 2)

Answer 43

2) grant of Rs to use land for purpose if not accompanied by grant of a R to exclude anyone from the land for any reason - WA v Brown

Question 44

NT not extinguished where 3)

Answer 44

3) If grant/appropriation gives lesser interest (so is compatible) any practical clash between NT and the grant/appropriation rights will be resolved in favour of the granted Rs BUT when this ceases, the NT Rs are revived (WA v Brown)

Question 45

Mabo No 2 (1992) Principles

Answer 45

1) NT exists | 2) Sovereignty does not extinguish NT

Question 46

In WA v Brown (2014) was NT extinguished by the grant of the mineral leases?

Answer 46

NO - mineral leases did not confer a R to exclusive possession, but rather the R t go onto the land and to get and remove iron ore

Question 47

In WA v Brown (2014) NT holders could have

Answer 47

exercised all their rights anywhere on the land w/o breach of any of the lessees’ rights - so thus Rs weren't consistent!

Question 48

In WA v Brown (2014) Rights which joint venturers had taken, continued to take priority over the Rs and interests of the NT holders for so long as

Answer 48

the joint venturers enjoyed and exercised those Rs