The nature of property generally

Legal classification of property interests

A) Real Property – realty, interests in land – land is three dimensional space located by reference to a point on the earth’s surface – fixtures – in the past only land was recoverable

Real Property is also split into two categories:
•    Corporeal hereditaments: tangible things, ie. the right to use water flowing across one's own land
•    Incorporeal  hereditaments: The right to have the water flow to the land across the land of another (a right capable of being devised to an heir – something that can be inherited)

B) Personal Property – catchall
(a) Chattels real – leasehold and other interests in land that are less than freehold – distinction drawn because of an institutional definition of rights – only freeholds were enforceable by real actions for recovery
(b) Chose in possession – a movable corporeal thing – eg goods
Sale of Goods Act 1923 s 3(1) "chattels personal other than money and things in action and also includes emblements and things attached to and forming part of the land which are agreed to be severed before sale or under the contract for sale"
Bankruptcy Act 1966 s 5(1) – ships aircraft and other vehicles; animals including fish; minerals, trees and crops, whether on or attached to the land or not and gas and electricity
(c) Chose in action – a movable incorporeal thing - rights which are enforceable by action – a piece of personal property but it does not have a physical existence – eg shares, patents copyrights, equitable securities, contractual rights, promissory notes, cheques, mere equities

Test:
- Enforceability
- Incorporeal and intangible
- Bare right – not occupation and enjoyment

The characteristics of property

Possession; Physical control - corporeality - what about all the incorporeal forms of rights which are also property?
Exclusion: The right to stop others from enjoyment of the thing - Backburn J in Milirrpum v Nabalco

Enjoyment and use: Property rights are also use rights, eg. rights to use public space. You have the right to use it but you do not own it.

Some rights of enjoyment can be transferred into property - fishing and hunting rights can fructify into property (eg when the animals and fish are killed or captured they become property). Other enjoyments rights might have some proprietary characteristics - eg a business telephone number - Rahne v Telstra Corporation
Durable: Durability is a poor indicator of property given the explosion in the number and types of choses in action - these have no physicality and hence don't exist in the real world at all.

Transferable/assignable; Alienation - If a thing can be sold then it is most likely to be considered as property
The right holder may transfer the right to another - King v David Allen & Sons
Gordon Laidler and Associates Pty Ltd v Hocking - fishing licence
Dominion – right against the world (in rem)
Blackstone - what restrictions exist for property owners today?
Public interest – benefits v detriments of recognizing property rights
There will be some property interests that will not be recognised because of the public interest

Historical Examples: The quasi proprietary nature of familial services. Slavery - the common law was uncomfortable with the slave as property because of the traditions of habeus corpus - but it had no problem with recognising slavery in the colonies - Sommerset's case 1772 - 1807
Modern example: human organs and corpses
Burial rights, the definition of death and the invention and perfection of transplantation - Moore's case; R v Kelly
Social relationship- Expression of the social relationship in the common law - Materialism in the common law!! – Conceptualising relationships as things in themselves

Interest Defined

Bundle of rights which a person has in an object. Eg interests in land (covenants, easements, caveats, contract for sale) v ownership of land
Knapp v Knapp [1944]: "The general right of ownership embraces subsidiary rights such as exclusive enjoyment, to destroy, to alienate or to alter, and, of course, the right to maintain, and to resume and recover possession from other persons"

Ownership Defined

Indicates the relationship between a person and a corporeal or incorporeal legal object. Ownership indicates the relationship between a person and a corporeal or incorporeal legal object. It confers a bundle of rights to enjoy, use possess, dispose of and alienate a "thing" as well as the capacity to ward of any encroachment on the thing. Ownership can be limited by other rights but is not dependent on other rights.
Ownership is therefore the subsidiary right that is left when all other interests in the property have been taken away - Campbells Hardware & Timber Pty Limited v CSD (Qld) (1996)

Title Defined

Measure of strength of an interest. It provides a yardstick to measure the strength of competing interests in property.

Possession defined

No complete, logical and exhaustive definition of "possession" has ever been given for the common law - United States of America & Republic of France v Dollfus Mieg et Cie SA & Bank of England [1952]

"Possession connotes a relationship between a person and some material object. It is a relation subsisting in fact. The ‘right’ of the possessor to the chattel arises out of the factual situation" - Button v Cooper [1947]

Two elements are necessary:
(1) control (corpus possessonis) – some exercise of power over the goods or land
(2) intention (animus possidendi) – an attitude in the mind of the actor denying the rights of other to have access to the land or goods
Possession confers a possessory title – possession is a root of title – possession is not only evidence of title but is a form of title itself – hence you have a claim against the whole world barring the true owner – title is relative

Land Defined

Common Law: any three-dimensional quantum of space. This can be the earths surface, or anything wholly above or below it, including any fixed contents.
Statutory definition: Defined for the purposes of the statute.

The extent to which land ownership confers rights above or below the surface
“cuius est solum” – the person who owns the land owns it from the heavens above to the centre of the earth below – not to be taken literally as most judges have regarded it as a fanciful approach.

Transient intrusions are considered trespass Eg. Bullet being fired over land although has made no contact with land; Davies v Bennison
Permanent intrusions into airspace above the land can constitute trespass without consent of the owner Eg.  Telephone wires, advertising signs.

There are height limitations however, so that trespass can only be found were ‘the intrusion into airspace is of a nature and at a height that may interfere with the occupiers ordinary uses of the land’.  Eg Current legislation precludes actions in trespass for intrusion by overflying aircraft; s2(1) Damage by Aircraft Act 1952 (NSW)

Damages is an available remedy to these forms of trespass.

Statutory rights allow the grant of easements of access to the encroached-on area; s88K Conveyancing Act, and “neighbouring access land orders”; Access to neighbouring land act 2000 (NSW).

Transferable development rights: occurs when a planning code precludes the owner of a historic building from developing the site, while giving the owner the opportunity to recoup the lost potential by transferring development rights to another site. This is considered a transfer of “property “for stamp duty purposes and the disposal of an “asset” for capitol gains tax purposes.

Natural rights to land

A landowner may be able to invoke two natural rights which the law regards as incidents of land ownership:

Right to support: Landowner has right to have the land in its natural state supported by neighbouring land, and is entitled not to have it removed.

Common law

Limitations:

Applies only to land in an unbuilt-upon state and there is no common law natural right to have additional weight of buildings on land supported by adjoining land. A right to the support of structures can only be acquired by agreement with the adjoining owner or by gaining an easement for support.

There is no common law right to prevent a neighbour excavating in a way, which, though not causing the unbuilt-upon land to subside, will impede or exceed the expense of future building operations on the land.

The natural right presupposes two parcels of land, in separate ownership
Landowner has no common law right to take action against a neighbour who by extracting after percolating beneath his or her land interferes with that of the adjoining land.

Action for withdrawal of support can only be sought with proof of damage. Action is taken against the owner at the time of excavation. The wrongdoer may elect between damages of the cost of reinstating the land to its previous condition, orthe diminution of the value of land as a result of the subsidence.

Negligence is a possible claim at common law against the person whose work caused the subsidence to the land in its natural state.