Transcript PROPERTY A - Monash Law Students' Society

PROPERTY A
POLICY/REVISION SEMINAR
JUST LEADERSHIP PROGRAM
Throughout semester 2, approximately 30 students will be selected to be exposed on about a weekly
basis to amazing guest speakers and panel discussions who are leaders in their field
These speakers will form the basis of practical group projects such as a written submission or community
project. Last year participants produced a policy submission that was published by the Australian Law
Reform Commission. Select students also had the opportunity to complete internships and volunteer
with participating organisations.
The time commitment is about 2 hours every week, mainly evening sessions.
Speakers that we have confirmed for 2011 are:
The Hon. Michael Kirby AC, CMG
Victorian Attorney-General Robert Clark
The Hon. Chief Justice Marilyn Warren AC
Judge Paul Grant SC, President of the Children's Court
1. NEW PROPERTY
Rare that courts
recognise new category
Novel
category?
1. Whether
thing
should be
object of
property?
Moral
issues
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•
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Should it be subject to
control (fairness, human
rights, developing market)
Power relation per Gray
Increase/decrease in value
•
•
•
Victoria Racing: refused to recognise
property in spectacle;
cf Callinan J in Lenah Games Meats
who thought time was ripe
Georgeski: refused to recognise
contractual licence as property right
– see Edgeworth article re numerous
clausus principle
But does happen:
• Mabo: native title
• Tulk v Moxhay: restrictive covenant
• Legislation
Use, alienate,
exclude: Milirrpum
Bentham’s social utility
theory: will it give rise to
greater productivity?
Theories
Hegel’s property and personality theory:
will it allow external expression of
individual will and personality?
Posner’s economic efficiency: will
recognising object as property promote
efficient use of resources
1. NEW PROPERTY
First occupancy
theory
Locke’s labour
theory
2. Who should
have rights in
property
‘Finders keepers’
Should be rewarded for work – if
labour of a number of people?
Bentham’s social
utility theory
Greatest happiness for
the greatest number
Hegel’s property and
personality theory
External expression of individual
will and personality
Posner’s economic
efficiency theory
Should promote economic
efficiency and prevent waste
1. NEW PROPERTY
 Eg 2008 Exam
From the cases studied throughout this semester, select
1. ONE case in which a court recognised a new type of property right
or extended the scope of an existing type of property right;
AND
2. ONE case in which a court declined or refused to recognise a new
type of property right or to extend the scope of an existing type of
property right.
What kinds of considerations or factors led the court to recognise a new or
extended form of property in case (1) and not in case (2)? Do you agree with
the factors and considerations that were taken into account by the court
when reaching their conclusions?
1. NEW PROPERTY
 Possible answer structure
Introduction
1.
2.
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Courts generally reluctant to introduce new property interests
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Edgeworth ‘numerous clausus’ principle: limits recognition of new property and
expansion of existing interests
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Eg Victoria Park Racing – court refused to recognise property in a spectacle
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Cf Tulk v Moxhay – court recognised restrictive covenant for first time
Victoria Park Racing
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Brief outline of facts/decision
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Reasons for not introducing no new property interest: no precedent, not justified on
facts
•
Per Latham CJ and McTiernan J – no exclusivity in spectacle (Cohen argues exclusivity
is essential characteristic of property)
•
But persuasive dissent by Evatt J – time and money spent by Victoria Park Racing
(labour theory); unjust enrichment of neighbours
1. NEW PROPERTY
 Tullk v Moxhay
•
Brief facts
•
Inequitable
•
Court influenced by fact subsequent purchaser had knowledge of the covenant and intended to
ignore it nonetheless
 Opinion
• Introduction of Torrens system has made it easier to keep track of property rights – perhaps paving
way for increase in protection of property holders?
 Conclusion
2. PROPERTY IN HUMAN BODY
 Eg 2005 exam:
‘The common law refuses to recognise that human remains or
living tissue excised from a human body can ever be anybody’s
property, and rightly so.
Do you agree with this statement? Give reasons for your
opinion, referring to articles and/or cases and/or texts studied
this semester.
2. PROPERTY IN HUMAN BODY
 CURRENT LAW
 Moore’s case (California, so persuasive only)
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Majority arguments:
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Factually/legally distinct
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Fiduciary law provides adequate protection
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Canadian legislation regulates area
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No precedent
Mosk J:
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Challenged above four arguments
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Unjust enrichment
Broussard J:
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Majority does not reject property right, only that patient retains a property right in
cells after excision
2. PROPERTY IN HUMAN BODY
 ARGUMENTS FOR/AGAINST
 Mortimer
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Found arguments of majority in Moore’s case unsatisfying
•
Argued lack of tissue not as disturbing as the prospect of trade in human body
 Nicol
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Argued property rights would not necessarily improve the patient’s position
 Potts
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Recognition of property rights necessary to organ shortage (Posner’s economic efficiency theory)
•
Rejects arguments against:
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Rich will get benefit in preference of poor (such is the case in private medicine)
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Poor will be exploited ‘organ farm’ (ignores regulation)
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Threat to human dignity, integrity and individuality (outweighed by benefits)
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Black market (already exists)
 Cohen
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Property is a form of sovereignty – should give people power to protect that which is most precious
 Theories
 Own opinion
3. FIXTURES
 RULE: chattels so attached to the land as to become part of the land are
fixtures and run with the land: NAB v Blacker; Belgrave Nominees
 Exception: contractual provision
 Question of objective intention (Belgrave Nominees), determined at time of
annexation
1.
Degree of annexation
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2.
Apportion proof – even ‘slight’ affixing sufficient to raise presumption of fixture (Belgrave
Nominees)
Whether removal would cause damage to land or item
Whether removal would cost more than item worth
Mode and structure of annexation
Object of annexation
•
•
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Whether attachment for better enjoyment of land or item
Whether item in position permanently or temporarily
Ordinary use of item and purpose of annexing it
Relation and situation of party making annexation vis a vis owner
3. FIXTURES
 Special case: Tenant’s fixtures
•
•
IF RTA applies  s64 RTA
•
(1) T must not install fixtures without LL’s consent
•
(2) Before tenancy agreement terminates, T must restore premises to previous condition or
pay LL reasonable compensation (unless agreement provides otherwise or LL and T
otherwise agree)
OTHERWISE  s154A PLA
•
(1) T retains ownership of fixtures and may remove before relevant agreement terminates
or during any extended period of possession but not afterwards
•
(2) T who removes fixtures must restore premises to previous condition or pay LL
reasonable compensation
•
(3) Unless lease provides otherwise or LL and T otherwise agree
3. FIXTURES - POLICY
 Abbs article
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Law of fixtures in urgent need of recasting
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Same test artificially employed to whole variety of situations
•
Need to recast test for specific situations
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Need to realign test with what judiciary actually considers
4. ESTATES
 Freehold (uncertain duration) or leasehold?
•
Freehold – fee simple or life estate
•
Leasehold – fixed term, periodic, at will, at sufferance
 Future interest?
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Reversion – reverts back to grantor or grantor’s estate
•
Remainder – grant of future interest to someone not previously entitled to an
interest in the land
 Entitlement to interest: vested or contingent interest?
•
Vested: presently entitled to possess, or bound to take effect in possession at future
date
•
Contingent: one which may or may not take effect as some contingency must be
met before vesting occurs
4. ESTATES
 Duration of interest: absolute determinable or conditional?
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Absolute – unlimited duration
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Determinable – automatically determines on occurrence of some specified event
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‘while’, ‘as long as’, ‘until’, ‘during’
Conditional – occurrence of specified right gives right to re-entry, so estate
continues until right exercised
•
‘provided that’, ‘on condition that’, ‘but if’
 Waste
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Ameliorating waste: improves value of land  nominal damages only
•
Permissive waste: failure to keep in satisfactory state of repair  not liable unless
instrument creates obligation to repair
•
Voluntary waste: positive act doing injury to land  liable unless ‘unimpeachable for
waste’ clause: s132A PLA (BUT even if clause, equity may intervene where tenant
unconscionably damages land at expense of remainderman)
5. LEASES - CHARACTERISTICS
1.
Exclusive possession
 RULE: mere existence of right to exclusive possession sufficient, regardless of parties’
intention (Radaich)
2.
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So terms used by parties generally irrelevant (eg ‘licensors’ in Radaich not decisive)
•
Consider:
•
Physical control of premises to exclusion of others (eg key in Radaich)
•
Right to quiet enjoyment (eg limited rights of re-entry in Street)
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Nature of use (eg milk bar business only able to be effectively run with exclusive
possession in Radaich)
Certainty of duration
 RULE: maximum duration of lease must be capable of determination at time of entry
into lease (Lace v Chantler – ‘for the duration of the war’ uncertain)
•
Periodic leases are of certain duration (Prudential Assurance)
5. LEASES - CREATION
 Legal
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GL land = by deed: s52 PLA
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Torrens land = registration: s66 TLA
•
Exception: oral lease taking effect in possession for term ≤ 3yrs (whether or not power to
extend term) at best rent which can be reasonably obtained without taking a fine: s54(2)
 Equitable
•
RULE: Equity will enforce agreement according to its terms if specifically enforceable
(Walsh v Lonsdale)
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Specifically enforceable:
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Note or memorandum in writing signed by party to be charged: s126 Instruments Act; OR
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Oral agreement and sufficient acts of part performance
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AND consider:
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Not subject to approval/consent of third party which has not been given
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LL has good title to land
•
Not inequitable to do so
5. LEASES - REGULATION
RTA
1.
Application
2.
Requirements
3.
Rights and duties of LL and T
4.
Breach of duty procedure
5.
Termination
6.
Notice to vacate
Retail Leases Act 2003
5. LEASES - REGULATION
 Application of RTA
•
s3: tenancy agreement means agreement, whether or not in writing and whether or not express
or implied, under which person lets premises as a residence
•
s6 :
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(1) Act does not apply if
•
(a) fixed term exceeds 5yrs; and
•
(b) agreement does not include provision enabling LL or T to determine agreement by notice
(otherwise than on grounds of breach of agreement) before end of 5yrs after agreement is made
(2) Despite (1), does apply if –
•
(a) TA or other document gives T a right or option to purchase premises; and
•
(b) TA not K of sale or mortgage; and
•
(c) TA entered into after commencement of s28 of Consumer Credit …Act 2008
•
s5: applies to assignees and transferees
•
Does not apply to:
•Premises used for holiday: s10
•Premises used for farming and grazing: s11
•K for employment (s12) or sale or mortgage (s13)
•Hotels and motels (s20) unless > 60 days
• Education and training institutions: s21
•Temporary crisis accommodation: s22
•Health or residential services: s23
5. LEASES - COVENANTS
 Express
 Implied by CL:
 Implied obligations of LANDLORD:

Implied condition of fitness for human habitation at commencement of lease

Covenant for quiet enjoyment
 Breach = substantial interference with ordinary enjoyment of premises (Hawkesbury Nominees)
 *If RTA applies – LL must take all reasonable steps to ensure T has quiet enjoyment: s67 RTA
Covenant not to derogate from grant
 Breach = substantial interference rendering land unfit or materially less fit for purpose of grant
(Aussie Traveller)
 Liability for acts of 3rd parties
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RULE: LL may be liable for acts of 3rd party if:
 In position to correct 3rd party behaviour and fails to do so (Aussie Traveller)
 Interference reasonably foreseeable at time of entering lease with 3rd party


LL authorised or encouraged interference
* RTA s60 puts into all residential tenancies term that T shall not use or permit use of land in
manner that causes nuisance (so LL may be liable even if no term of agreement (as in Aussie
Traveller) if fails to take action and RTA applies)
5. LEASES - COVENANTS
 Implied obligations of TENANT:
 Covenant to use premises in tenant-like manner
 Duty not to commit (voluntary) waste
 Covenant to yield up possession
 Implied by statute: s67 TLA; s71(4) TLA
 Can be expressly excluded: s112 TLA
5. LEASES - ASSIGNMENT
 Assignment = transferring balance of term of lease
 If LL consent required, shall not be unreasonably withheld unless lease contains express
provision to the contrary: s144 PLA
 If RTA applies:
 Cannot assign or sub-let without LL’s consent and attempt to do so will be invalid: s81(1), (3)
 LL must not unreasonably withhold consent: s81(2)
 If RLA applies:
 LL may only withhold consent in specific situations: s60(1) RLA
 Procedure for obtaining consent to assignment: s61 RLA
 LL may reserve right to refuse consent to sublease, mortgage, etc: s63
 Sub-lease = ‘subletting’ premises for period less than balance of term of lease
5. LEASES – ENFORCING COVENANTS ON
ASSIGNMENT
Assignment by T
 Privity of K: can enforce contractual covenants against parties to K
•
T deemed to covenant on behalf of himself and successors in title unless contrary intention in
instrument: s79 PLA
 Privity of estate:
•
Rule: can enforce covenants between parties in LL and T relationship which touch and
concern the land (Spencer)
•
Consider (Swift Investments):
1.
Covenant not of benefit if separated from land;
2.
Must affect mode, value or use of land;
3.
Must not be expressed to be personal;
If rent, must satisfy first three and be connected with something in relation to land.
4.
 Other:
•
Implied covenant assignee will pay rent and observe covenants of T and indemnify T:
s77(1)(c) PLA; s67(2) TLA
5. LEASES – ENFORCING COVENANTS ON
ASSIGNMENT
Assignment by LL
 Privity of K: can enforce contractual covenants against parties to K
•
LL deemed to covenant on behalf of himself and his successors in title unless
contrary intention in instrument: s79 PLA
 Statutory provisions:
•
TEST: covenant must ‘make reference to the subject matter of the lease’: ss 141, 142 PLA
•
Rent and benefit of lessee’s covenants to run with the reversion: s141 PLA (ie if LL wants benefit)
•
Obligations of lessor’s covenants to run with reversion: s142 PLA (ie if LL to be sued)
6. LICENCES
 Bare licence: no consideration, revocable any time, might be conditional
 Contractual licence: consideration, express or implied, no exclusive
possession – right to occupy only, do not need certain duration. Only
damages are available for breach.
 A licence coupled with a grant: grant is proprietary, licence to enter land to
exercise prop right, incidental to an interest, irrevocable, enforceable against
third parties, assignable
 Can contractual licensee obtain damages for trespass if they are evicted
from the property to which the licence relates? Court in Cowell said if
licensor entitled to require licensee to leave, even if the licensor in breach
of K, the licensor is entitled to use reasonable force to reject the licensee.
Licensee becomes a trespassor once their licence is revoked, so licensor is
entitled to remove them and not liable for assault.
6. LICENCES CONT.
 When can a contractual licensee obtain an injunction? Heidke v Sydney City Council –
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equity will not grant an injunction to restrain revocation unless licence coupled with
a grant. Courts may consider granting an injunction where there is express/implied
term that the licensor will not revoke and is then in breach of that term.
A court will consider: are damages adequate? Would an injunction cause undue
hardship to a licensor? Would an injunction force parties into a relationship requiring
continuous supervision? (Heidke)
Sigma v Maryvell – words aren’t determinative, just because agreement says it is a
licence is not conclusive
Enforceable against third parties?
Georgeski v Owners Corp – in Aus, licences are unenforceable against third parties,
except for Ashburn Anstalt scenario. Need to ask – has the third party conducted
himself such that it would be inequitable for him to deny the rights of the
contractual licence?
7. EASEMENTS
 What is an easement? a right to be enjoyed by the owner of one piece of
land (the dominant tenement) the exercise of which interferes with the use
and occupation of another piece of land (the servient tenement).
 Characteristics of an easement: Re Ellenborough
 1. There must be a dominant and servient tenement
 2. The easement must accommodate the dominant tenement in relation to quiet enjoyment
and use of the land
 3. The dominant and servient tenements must not be owned and occupied by the same
person (Copeland v Greenhalf)
 4. The easement must be capable of forming the subject matter of a grant – must not be
vague or uncertain (Sunshine v Wulff)
 Can a right of co-occupation amount to an easement? No, virtually a claim
to possession of servient tenement – Copeland
7. EASEMENTS CONT.
 Scope of easements: Westfield test – look at surrounding circumstances
and language used in the K, what did the grant permit, did it
contemplate the rights in question?
 Creation of easements:
 - Express or implied grant: s62 PLA, or simultaneous conveyance
 - Express or implied reservation: generally must be expressly reserved unless it is an
easement of necessity. Authority – Wheeldon v Burrows – purchaser gets all
continuous and apparent quasi easements necessary for the reasonable enjoyment of
the land, or Shepherd – necessary for reasonable enjoyment of lot after subdivision
 - Prescription: 20 yrs and over, consistency, interfered with if dom and serv tenement
become owned by same person, must be open, must be knowledge and acquiescence
but no agreement by the servient tenement (Sunshine v Wulff)
8. MORTGAGES
 What is the nature of a security interest? A hypothecation security (pledging a
security to obtain a loan)
 Why is a creditor with a secured debt in a better position than a creditor with
unsecured debt? Enjoys priority to enforce debt on bankruptcy
 General Law mortgage vs Torrens System mortgage
Under GL – ownership transferred to mortgagee, poessession remains with mortgagor, lender
has legal title, borrower has “equity of redemption”
 Under TS – mortgagee acquires registered interest but mortgagor remains registered proprietor

 Second Torrens System mortgage – legal or equitable? Can have multiple registered
mortgages, order of priority in order they occur, unregistered mortgages take effect
in equity
 Can have equitable TS mortgage as long as there is K complying with s126
Instruments Act or oral K with part performance (money in exchange for title deeds
is best act of part perf)
8. MORTGAGES CONT.
 When there is a default:
 S76TLA – mortgagee must provide notice of default
 S77 TLA – mortgage has to act in good faith (subjective – Goldcel) AND
having regard to the interests of the mortgagor (objective – Goldcel) in
exercising power of sale
 Vasiliou: property must be sold for the proper (Roach)/best (Goldcel) price. Which is
the right test was not settled, so apply both.
 Remedies – depends on timing of settlement, can obtain injunction to
prevent settlement of improper sale, or damages if settlement already
occurred.
 S78 TLA – mortgagee may enter into possession
8. MORTGAGES – NOLAN & BARANOV
 Nolan
 -Originally held that Nolan had a ‘home occupation interest’ in Lot 1 thus mortgagees did not act in
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good faith
- On appeal, Court held in favour of mortgagee, that although a mortgagor had a right to redemption
upon payment of debt, this does not amount to a right of home occupation
- Court held the mortgagee did not act in breach of duty of good faith under s77 as there had been
sufficient doubt that Lot 2 and 3 would satisfy debt. Mortgagor has no right to require securities be
sold in a certain order.
www.corrs.com.au
Baranov
-On appeal,Vickery J held that the mortgagee may exercise a commercial judgment as to how and
when it should proceed.
- Requirement of ‘good faith’ not present as mortgagee seeking possession under s78 not power of
sale under s77
- mortgagees are entitled to adopt enforcement proceedings that are in their commercial interests
9. SALE OF LAND
 Requirements for Transfer of Land in Torrens System: s40TLA – registration of duly
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executed Transfer of Land and duplicate Certificate of Title
What is the effect of failure to satisfy formal requirements for the transfer of
interest in land?
- equity recognises title by either
a) written K that complies with s126 Instruments Act; or
b) oral K with part performance
Mason v Clarke: part performance of setting snares, paying helpers etc, gave rise to a
right in equity at the acts were unequivocally referable to the oral K
Sale of Land Act:
S31 – 3 day cooling off period (except for commercial property or auction)
S32 – vendors statements
9. SALE OF LAND - INSURANCE
 s34 SLA – power of purchase to rescind contract where house
destroyed
 s35 SLA – insurance held by vendor to enure for benefit of purchaser
 (This section reversed the decision in Ziel.)
 s36 SLA – damage to land (if vendor restores damage before the
purchaser is due to take possession, then the purchaser cannot rely on
s34 and s35)
 Note that despite these sections, the purchaser should arrange their
own insurance in the event the vendor’s insurance expires or does not
cover the extent of damage incurred.
10. ADVERSE POSSESSION
 Perry v Clissold: can’t dispute a person in possession exercising their rights peacefully, they have rights
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against all the world including the govt until the rightful owner steps up
S8 LAA – owner has 15 years to bring action to reclaim land
S18 LAA – RP title extinguishes
S9 LAA – time starts to run with the RP is dispossessed (consider aggregate possession)
What is adverse possession?
Mulcahy v Curramore: factual possession – unconcealed usage, without consent of reg proprietor,
physical control)
Buckinghamshire v Moran: intention to poss = obj, need to have intention to exclude owner and the rest
of the world
JA Pye v Graham: intention of the true owner as to future use of the land deemed to have little impact
on intention of adverse possessor
Consider
s16LAA – has RP stopped time running? Have to take repossession of the land (more than a letter)
10.ADVERSE POSSESSION CONT.
 Whittlesea City Council v Abbatangelo: There are 9 considerations to determine if there
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has been adverse possession
1.presumption that RT holder is owner
2. AP must prove factual intention and possession – intention can be deduced
objectively
3. AP must act as occupying owner
4. Exclusion of all others
5. Intention to exercise exclusive control of the land – need not be conscious
6. Can’t have consent of RT
7. RT doesn’t have to have actual knowledge of the AP
8. AP of part of land may const AP of all land
9. Must be more than mere use or special benefit, individual instances of evidence
can together constitute sufficient evidence of possession
10. ADVERSE POSSESSION CONT.
 Possible policy on AP:
 Should the law distinguish between accidental adverse possessors and
deliberate adverse possessors?
 Is the law of adverse possession consistent with the property rights
recognised by the Charter of Human Rights and Responsibilities 2006
(Vic) s20 “A person must not be deprived of his or her property other
than in accordance with the law”?