PROPERTY A

1. PROPERTY A POLICY/REVISION SEMINAR

3. 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, CMGVictorian Attorney-General Robert ClarkThe Hon. Chief Justice Marilyn Warren ACJudge Paul Grant SC, President of the Children's Court

5. 1. New property • Victoria Racing: refused to recognise property in spectacle; • cfCallinan J in Lenah Games Meats who thought time was ripe • Georgeski: refused to recognise contractual licence as property right – see Edgeworth article re numerous claususprinciple Rare that courts recognise new category Novel category? 1. Whether thing should be object of property? • Should it be subject to control (fairness, human rights, developing market) • Power relation per Gray • Increase/decrease in value Moral issues • But does happen: • Mabo: native title • Tulk v Moxhay: restrictive covenant • Legislation Bentham’s social utility theory: will it give rise to greater productivity? Use, alienate, exclude: Milirrpum Hegel’s property and personality theory: will it allow external expression of individual will and personality? Theories Posner’s economic efficiency: will recognising object as property promote efficient use of resources

6. 1. New property First occupancy theory ‘Finders keepers’ Should be rewarded for work – if labour of a number of people? Locke’s labour theory 2. Who should have rights in property Greatest happiness for the greatest number Bentham’s social utility theory Hegel’s property and personality theory External expression of individual will and personality Should promote economic efficiency and prevent waste Posner’s economic efficiency theory

7. 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?

8. 1. New Property • Possible answer structure • Introduction • Courts generally reluctant to introduce new property interests • Edgeworth ‘numerous clausus’ principle: limits recognition of new property and expansion of existing interests • Eg Victoria Park Racing – court refused to recognise property in a spectacle • CfTulk v Moxhay – court recognised restrictive covenant for first time • Victoria Park Racing • Brief outline of facts/decision • 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

9. 1. New Property • Tullkv Moxhay • Brieffacts • 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

10. 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.

11. 2. Property in human body • CURRENT LAW • Moore’s case (California, so persuasive only) • Majority arguments: • Factually/legally distinct • Fiduciary law provides adequate protection • Canadian legislation regulates area • No precedent • Mosk J: • Challenged above four arguments • Unjust enrichment • Broussard J: • Majority does not reject property right, only that patient retains a property right in cells after excision

12. 2. Property in human body • ARGUMENTS FOR/AGAINST • Mortimer • 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 • Argued property rights would not necessarily improve the patient’s position • Potts • Recognition of property rights necessary to organ shortage (Posner’s economic efficiency theory) • Rejects arguments against: • Rich will get benefit in preference of poor (such is the case in private medicine) • Poor will be exploited ‘organ farm’ (ignores regulation) • Threat to human dignity, integrity and individuality (outweighed by benefits) • Black market (already exists) • Cohen • Property is a form of sovereignty – should give people power to protect that which is most precious • Theories • Own opinion

13. 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 • Degree of annexation • 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 • 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

14. 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

15. 3. Fixtures - POlicy • Abbs article • Law of fixtures in urgent need of recasting • Same test artificially employed to whole variety of situations • Need to recast test for specific situations • Need to realign test with what judiciary actually considers

16. 4. Estates • Freehold (uncertain duration) or leasehold? • Freehold – fee simple or life estate • Leasehold – fixed term, periodic, at will, at sufferance • Future interest? • 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

17. 4. Estates • Duration of interest: absolute determinable or conditional? • Absolute – unlimited duration • Determinable – automatically determines on occurrence of some specified event • ‘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 • 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)

18. 5. Leases - characteristics • Exclusive possession • RULE: mere existence of right to exclusive possession sufficient, regardless of parties’ intention (Radaich) • 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) • 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)

19. 5. Leases - creation • Legal • GL land = by deed: s52 PLA • 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) • Specifically enforceable: • Note or memorandum in writing signed by party to be charged: s126 Instruments Act; OR • Oral agreement and sufficient acts of part performance • AND consider: • Not subject to approval/consent of third party which has not been given • LL has good title to land • Not inequitable to do so

20. 5. Leases - regulation RTA • Application • Requirements • Rights and duties of LL and T • Breach of duty procedure • Termination • Notice to vacate Retail Leases Act 2003

21. 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 : • (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

22. 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 • 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)

23. 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

24. 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

25. 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): • Covenant not of benefit if separated from land; • Must affect mode, value or use of land; • Must not be expressed to be personal; • If rent, must satisfy first three and be connected with something in relation to land. • Other: • Implied covenant assignee will pay rent and observe covenants of T and indemnify T: s77(1)(c) PLA; s67(2) TLA

26. 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)

27. 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 Cowellsaid 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.

28. 6. Licences cont. • When can a contractual licensee obtain an injunction? Heidkev Sydney City Council – 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 vMaryvell– words aren’t determinative, just because agreement says it is a licence is not conclusive • Enforceable against third parties? • Georgeskiv Owners Corp – in Aus, licences are unenforceable against third parties, except for Ashburn Anstaltscenario. 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?

29. 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 vGreenhalf) • 4. The easement must be capable of forming the subject matter of a grant – must not be vague or uncertain (Sunshine vWulff) • Can a right of co-occupation amount to an easement? No, virtually a claim to possession of servient tenement – Copeland

30. 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 – Wheeldonv 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 vWulff)

31. 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)

32. 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

33. 8. Mortgages – Nolan & Baranov • Nolan • -Originally held that Nolan had a ‘home occupation interest’ in Lot 1 thus mortgagees did not act in 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

34. 9. Sale of Land • Requirements for Transfer of Land in Torrens System: s40TLA – registration of duly 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

35. 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.

36. 10. Adverse Possession • Perry vClissold: can’t dispute a person in possession exercising their rights peacefully, they have rights 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? • MulcahyvCurramore: 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 Pyev 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)

37. 10.Adverse possession cont. • Whittlesea City Council vAbbatangelo: There are 9 considerations to determine if there 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

38. 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”?