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Flashcards in Week 2 Deck (14):
1

4 Jurisprudential Property theories

Labour theory
Social utility theory
Marxist theory
Economic analysis theory

2

Explain labour theory

• Labour Theory – John Locke – property was originally owned in common by men, social contract = handing over powers to gov’t in exchange to fundamental right
• Person has property right to the produce of their land, ones labour gave rise to natural right to that property
• Limited application to an industrial or service driven society where something produce may have been the product of multiple peoples labours

3

Explain social utility theory

• Social Utility Approach – Bentham
– “greatest happiness principle”, property ownership created happiness and wealth potential + laws are essential to property

• Believed pleasure was good and pain bad – therefore considered property ownership created happiness and an incentive for wealth creation which would benefit society also accepted private property ownership could create inequality

4

Explain Marxist theory;

• Marxist Approach – Karl Marx
– viewed from a labour perspective and it’s unequal distribution e.g. rich have large land poor have nothing. Marx wanted private property rights abolished and to redistribute wealth more equally

• Argued more worked on the land than those that owned the land (capitalists) creating an “imbalance of exploitation”

5

Explain economic analysis theory

• Economic Analysis Approach – Hardin / Posner – Allocation of resources.

• Highlighted how resources can be misallocated where there are no property rights

• ‘Taggerty of the common’ = land to which there is unrestricted access will eventually be destroyed as there is no disincentive to destruction of land driven by greed (e.g. one more cattle)
*therefore advocate for private property rights.

6

What is 'property'

No one definition of property, no simply a 'thing'

• Possession + control (Yanner V Eaton 1999 201 CLR) property in law = legal relationship with a thing

** Property is a comprehensive term that can be used to describe all or any of the very many different kinds of relationship between a person and a subject matter

Possession is fundamental to the law of property, to have possession one must have control of the thing that is required and intended
‘Control’ of a thing is required in order to possess
can acquire a right to possession:
• By sale
• Gift
• Taking possession
Control – physical control
Things that are attached to land are controlled by the possessor of the land


• Not Just a “thing” but consideration of control giving rise to different kinds of enforceable legal relationships determined by reference to the law and societal conditions

7

Explain notion of possession

Possession is fundamental to the law of property, to have possession one must have control of the thing that is required and intended
‘Control’ of a thing is required in order to possess
can acquire a right to possession:
• By sale
• Gift
• Taking possession
Control – physical control
Things that are attached to land are controlled by the possessor of the land

Intention to posses:
We also need an intention to possess the thing
• It is a property right (others cannot interfere with things you posses)
• Possession provides evidence of ownership
• Possession of a thing for a specific time period can become period

8

To have possession one must

control and have intention to posses the land (ownership not required)

9

Explain competing claims to possession

Difference between Ownership, Title and Possession:
Ownership
• Often includes the right to posses but not always

Title:
• Right or entitlement to a thing
• Documentary evidence of ownership
• Registered title
• Native title

Possession:
• Acquired by consent
• Temporary – bailment
• Permanent
• Acquired without consent

Competing claims to Possession:
• Members of society are under a legal duty not to interfere with others property rights
• If this duty Is breached it is a legal wrong – a tort
• Common torts relating to interference with possession:
Trespass – wrongful interference with other persons or their possession of their things interference must be direct and involuntary

Conversion – similar to trespass, does not apply to land. Unauthorised interference with others possessions

Detinue – doesn’t relate to land, interference with goods and cash, wrongful detention of goods, failure to deliver goods on demand.

Nuisance – smell, noise – interfere with neighbours enjoyment of property

10

Explain common torts relating to interference with possesion

Trespass – wrongful interference with other persons or their possession of their things interference must be direct and involuntary

Conversion – similar to trespass, does not apply to land. Unauthorised interference with others possessions

Detinue – doesn’t relate to land, interference with goods and cash, wrongful detention of goods, failure to deliver goods on demand.

Nuisance – smell, noise – interfere with neighbours enjoyment of property

Breach of duty:
Direct enforcement of the right – usually when party refuses to give up land
Injunction may be an option (trespass and conversion)
Order for specific recovery (Detinue)

11

explain boundaries and interferance

Boundaries + Interference:
Ownership of airspace:
• Airspace can be owned
• Therefore, can an owner maintain an action in tort for trespass
Ownership of subsoil:

The physical boundaries of a parcel of land will be determined by reference to the registered Torrens survey that is registered with respect to the lot

12

explain distribution of property

Distribution of Property:
Public property:
• Allocated to society as a whole
• Large portion of Australia is publically owned as ‘crown land’
• Minerals located in private land

Private Property:
• Allocated to private persons
• Does private mean no government intervention? No, do not have absolute land as houses can be acquired by gov’t e.g. for rail

13

explain fixtures

Fixtures:
Something that is so attached to the land that it becomes part of the land, therefore transfer of title (house) includes all fixture

Tests for determining whether an object is a chattel or fixture:
• Degree of annexation
• Purpose of annexation
If an item is fixed to land to any extent other than resting on its own weight presumed to be a fixture

If an item is not a fixed but merely rests on it’s own weight = not a fixture, burden of proof lies on those who assert otherwise

Fixtures:
Purpose of annexation:
• Better enjoyment of the property
• Nature of the property – what type of property e.g residential v commercial
• Permanency
• Function

Degree of annexation:
• Removal would cause damage
• Mode and structure
• Removal damage
• Removal would exceed costs

14

explain classifications of property

Classifications of property:
1. Real property:
• Incorporeal hereditaments – rights unable to be inherited
• Coporeal hereditaments – things able to be inherited e.g. fixtures
2. Personal property:
• Chattels real – leasehold interest
• Chattels personal – moveable
• Choses in possession – tangible items of personal property (e.g. chairs)
• Choses in auction – e.g. intangible rights e.g. debt, shares