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.

Statute law

S 177 Conveyancing Act 1919: abolishes common law ight to bring claim for nuisance for removal of support of land and replaces it with a right to eenforce a negligence style duty of care (DOC does not extend to omissions)
Subs (3): ‘supporting land’ includes the natural surface of the land, the subsoil, subsurface water and reclaimed land
Subs (4): Duty of care does not extend to buildings or structures on the supporting land, except to the extent that the building or structure replaces the support tha the supporting land provided in it’s original state
Subs (5): Duty of Care is limited by foreseeability. This can be modified by an agreement between the affected parties.
Subs (6) (7): If registered as an ‘easement for removal of support’, this agreement will bind successors in title

6B Transport Administration ACT 1988: DOC not to do anything that removes the support that land supplies to underground rail facilities
Local Government Act 1919: Requires a person excavating below the footings of a building of adjoining land to protect that building from damage
Environmental Planning and Assessment Regulation 1994: as above but extended to below the level of footings of a building on adjoining land

Right to flow of water: right of a landowner whos land abuts/runs through a river or stream, to the uninterrupted flow of the river or stream subject only to reasonable use by upper riparian owners.

Common Law

Lord Macnaughten set common law position in 1893
Australian position - Common Law entitles a riparian owner to the undiminished flow of the stream, and to use the waters of the stream for ordinary domestic purposes, for cleaning and washing, for supplying drinking water to cattle and for irrigation purposes.
Only those whose land comes in contact with the river bear riparian rights

Statute Law

Water Management Act 2000 - replaces common law riparian rights
S52 - to take and use river water for domestic consumption and for watering stock – termed ‘remnant’ riparian rights
S392 - provides that rights to the control, use and flow of all waters in rivers, lakes and aquifers are ‘State’s water rights’ vested in the Crown
Other uses require an access license; entitles holder to specified shares in available water able to be taken at specified times and rates in specific areas (s56-65) but subject to conditions by the Minister (s66) who can suspender cancel them if conditions are not complied with (s78). (pg 26 of Butt)

As a result of the divesting common law riparian rights, downstream owners cannot sue upstream owners for interference with common law riparian rights, however may still be able to sue in nuisance (provided the cause of action does not rely on common law riparian rights and activity is not carried out with a license)

Boundaries of Land
Natural or Artificial

Whether a boundary is natura or artificial is a question of construction of terms of the Crown grant or other dealing with the land. In construing those terms, reference may be made to surveying practice at the time of the grant or dealing and to subsequent material. Ambiguities in a Crown grant are resolved in favour of the Crown.

Artificial boundaries

An imaginary line fixed by reference to survey points or physical objects on or near the earth’s surface (Eg. Fences). By nature they remain static. Ascertaining these boundaries may become problematic because survey pegs or other physical indicators may disappear. It then becomes a question of fact so you look at title deeds or whatever evidences of occupation are available and admissible. Registered plans (lodged at he land titles office) are often referred to as correctly depicting the boundaries of a land on a plan- may be inaccurate and ambiguous as “conclusiveness of register” does not extend to conclusiveness of the boundaries described in the Register.

Natural boundaries

Ascertaining natural boundaries is difficult as they are prone to shift. Eg. Where land is bound by high water mark and seashore recedes. Sometime law allows boundaries to ambulate following movements in landscape features and other times it leaves boundaries where they were before the movement. This is discussed below.

Tidal boundaries

Where the land is bound by tidal water (sea, tidal river, tidal lake) the boundary at common law is the mean high water mark.

Mean high water mark - line of the medium high tide between the highest tides each lunar month, averaged out over the year
Land below the high water mark and that between the high and low water mark (foreshore) belongs to the Crown

Roads and non-tidal water

Middle line rule - Where land is described in a Crown grant as bounded by a road or waters that are non-tidal, the common law presumes that ownership extends above that boundary and up to the middle line of that road or mid-point of the water.
This has been approved for land under Torrens title through Layon P/L v Canberra Washed Sand P/L (1996)
Does not apply to land adjoining tidal waters since the bed is vested in the right of the Crown.

Rebuttal to rule - (s45A of RPA) must show unequivocal evidence that the parties did not intend to title to pass up to the middle line (through Crown grant or later conveyance). This can also be shown through other evidence extrinsic to the title deeds; evidence that the parties believed t grantor did not have any title to any part of the road or stream beyond the stated boundary or grantee knew that the grantor needed the area occupied by the road or water for some existing or intended use.

Statute restricts the middle line rule in NSW:
Roads: Applies only where the grantor of the land fronting the road has title to the road
Rivers: Ownership of land in NSW bounded by a river generally carries no rights of access over or use of any part of the river bed (s172 (5)(6)(7) of the Crowns Lands Act 1989) so the middle rule cannot apply
Non-tidal lakes: Title to the bed of a non-tidal lake does not pass under an alienation of land bounded by the bank of the lake; nor does ownership of such land carry with it any rights of access over or use of the lake bed (s172(3) of the Crowns Land Act 1989)

Accretion and erosion

Natural process of accretion and erosion may change physical dimensions of land surrounded by one or more sides of water- applies to both tidal and non-tidal water
Principle - For the legal boundaries of the land to be ambulatory (waters edge may change n law to reflect changes in its position occurring by accretion of erosion), two key conditions must be met:

Change in the waters position must be slow and gradual so that t is imperceptible. If it is perceptible such as were water washes away soil the legal boundary remains unaltered.
Must result from a natural process – and not artificial reclamation (this does not mean there must  a total absence of human intervention, eg, steps taken to prevent erosion which result in silting-up at waters edge).

These principles apply to both Old System and Torrens Title. Under Torrens title, the ambulatory boundaries change even though the folio of the Register of Registered plan for the land specifies te area or dimensions of the land. The Register General can be requested to ament the specified dimensions to reflect the change.

Can be excluded by:
Contrary intention - an appropriate provision in the instrument creating or transferring interests in the land.

Must be an unequivocal indication; map contained in Crown grant showing boundaries will not suffice. If the principles are excluded the legal boundaries remain static and unaffected by later movements in boundaries.
Statute:

S172(4) Crown Lands Act 1989 - states that doctrine does not apply to non-tidal lake
S172(2) Crown Lands Act 1989 - if alienated by Crown, boundary taken to be the bank of the lake at the time of the Crown survey made for the purposes of alienation
S55N Costal Protection Act 1979 - erodes application n relation to costal waters

Moveable freeholds

Parcel of land whose boundaries move from time to time in accordance with a specified even of events. They are defined from the outset in a way that makes them inherently ambulatory. Unknown to Australia.

Boundary determinations by Registrar-General

Registrar-General has the power to determine the boundary between adjoining parcels of land (s14A RPA) only through application (s135B), only where the position of boundary is in doubt (s135D(2)). Does not need to be under Torrens title.

Boundary Fences

We know that log established fences could provide evidence of land boundaries. Some aspects to consider below.

Ownership of fences

If land is on common boundary between two properties, owners of land are presumed to own the fence as tenants in common in equal shares
If one owner las paid full amount of fence they are the sole owner, until adjoining owner pays his/her proper share, afterwhich they will be regarded as tenants in common in shares proportionate to their respective contributions.
If fence is not on common boundary, it normally belongs to person on whose land it stands.

Statute

The Dividing Fences Act 1991 - specifies obligations of adjoining landowners to contribute towards the costs or erecting and maintaining dividing fences. Act defines ‘fence’ as separating the land of adjoining land owners, whether on common boundary of adjoining lands or on a line other than the common boundary.

Fences and possessory title

Where a dividing fence is erected other than on the common boundary line, with the result that one owner occupied part of the land of his neighbour, a possessory title may be acquired to the part occupied.
S14(2) Dividing Fences Act negates the acquisition of a possessory title - where an order is made determining that the fence is to be constructed other than on the common boundary, the occupant of the land on wither side of the fence “is not to be adverse possession against the owner or affect the title to or possession of the land.
S45D RPA precludes the acquisition of title to land wrongly fenced-in with adjoining land, and only permits it in respect of a ‘whole parcel of land’ (land which complies with minimum town planning requirements). This makes it inconceivable that a possessory title could be acquired to a strip of Torrens land along a boundary by incorrect placement of a fence.

Right of access to repair dividing Fence

Common law: No rights – adjoining owner must obtain an express of implied grant to enter land and carry out work.

Statute: s20 Dividing Fences Act - statutory right to enter adjoining land to carry out fencing work under the act.