What is “real” property?
Why do we call it ‘real’ estate?

-    comes from the Latin res = the thing itself
-    much of the common law was formed through the forms of action at common law
-    If you wanted to recover land you had to use a real action  which gives you the right to recover the land itself (in specie).
-    Land was important in medieval society as an indicator of wealth and prestige
-    If someone took your land you could sue to get it back. You would not have to settle for a monetary equivalent.
-    Real property was the only form of property you could insist on getting it back itself ‘in specie’.
-    Stealing land in the sense of dispossessing the true owner

Real and Personal Property

-    There are two separate mutually exclusive categories of property: real property and personal property (e.g. intellectual property)
-    In civil terms there is reference to property that is moveable and immoveable.

Lease Interests

-    Interest in real property
-    Differ from freehold estates as they are of certain duration
-    This is a category that fits in the middle between real and personal somewhere. Leasehold interests in land i.e. a tenant’s interest in land. This provides the right to possess the land even though you don’t actually own the land.
-    Historically, this was regarded as personal property (weren’t entitled to receive the land back if it was taken, only compensation).
-    Usury: This involved the lending of money at an exorbitant/unconscionable interest rates, which was outlawed. A way to get around this law was for the lender to take control of the land and take all the profits generated for themselves until the debt and interest was repaid.
-    Common Law and Ecclesiastical Courts often disliked leases. Leases were regarded as contracts. Leases were a way of getting around usury laws. In time leases became accepted in the land law category.
-    Leases were known as ‘chattels real’ (an oxymoron) to reflect the historical origins of leases outside the main body of land law and to reflect the hybrid nature of leases. It reflects the relation of the lease to the land (real) and because they were seen as a personal contract between lessor and lessee (chattel).
-    Tenancies were looked unfavorably upon; hence if dispossessed then no right in real action.
-    In early times, real property went to the heir upon death (the eldest son). Personal property went to the next of kin (the whole family).

The major differences between leaseholds and freeholds included:
i.    Seisin and Possession: The lessee had possession of the land, but was not seised. Seisin was a term appropriate to only to possession of a freehold estate.
ii.    Leaseholds Personal Property: originally  leaseholds weren’t recognized as real property, and the only compensation for losing the land was damages, not the return of the land.
iii.    The Doctrine of Estates wasn’t applied to Leaseholds: Leaseholds, being personal property, could have estates applied to them, and so couldn’t be divided up into fee simple estates, life estates, etc.

These no longer apply in Australia, and they are treated very similarly to freeholds.

Proprietary Interests

-    A proprietary right affects whoever owns the land even though they weren’t a party to the creation of the right. Most proprietary rights begin as a matter of contract law, but if created properly, they transcend the limits of contract law and can bind/affect third parties (i.e. someone not a party to the contract)
-    A proprietary right inheres in the land, it goes beyond contract law. If the contract is formed correctly, the proprietary right attaching to the land (i.e. the burdened land) stays with the land
-    You can have an interest in somebody else’s land even if you don’t own it yourself.
-    An example is a tenant who has an interest in their landlord’s land. Tenants get the rights to the land itself. They can assign or transfer the lease to somebody else if they wish. If the landlord decides to sell the land, the purchaser is bound by the existing lease.
-    Proprietary rights run with the land.
-    The contract can be between the purchaser and tenant, or the purchaser and assignee.
-    If landlord sells land to a purchaser while lease agreement is current, a contract lawyer would say that the tenant would have to go. A property lawyer would say the lease agreement survives and the tenant has a proprietary right.

Right of Way (Easement)

-    This is an access point across another’s land.
-    Begins as a contract between the original owners. The owners agree to the right of way (usually involves some monetary compensation).
-    If this is created using property law, then there becomes a proprietary interest in that land, and have a right to use the land.
-    If either party sells their properties, the right of way remains even though there is no contract between the parties.  Hence, under proprietary interests, both the benefit and burden can be assigned.

Covenant

-    Deed involving a promise.
-    Covenants can be imposed on land to restrict use.
-    An example is a covenant to protect a view. This involves paying a sum of money (usually) to agree not to build a house above a certain height.
-    Even though there is no contract if either property is sold, proprietary interest remains, and the purchaser is bound by the covenant.
-    Must abide by the requirements of property law.
-    A restrictive covenant  e.g. you owe land overlooking harbour but there is another land in front of you which you overlook. Can you block out the lower owner from blocking your view. You could do it by contract, i.e. agree with the lower owner. But if lower owner sells the land, the new owner can build and block view.
-    But if there is a restrictive covenant, the higher owner has a proprietary interest in the lower land which survives the sale. Therefore they can preserve their view. This is a way that a right which was elevated from contract to proprietary right can bind successors to real property.