Rights of Property

- Right to Exclude Others from the Property

- Right to Alienate the Property to Others
- Right to Use and Enjoy the Property
- Right to Possess

Types of Property

- Real
o Land
Does not extend to the view or spectacle on the property
Victoria Park Racing and Recreation Grounds Company Ltd v Taylor
(1937) 58 CLR 479
o Arguably due to the uncertainty of such a right
o Also due to interference with the proprietary rights of
others
o Can be extended to no right to privacy
- Personal
o Physical
Cash
Books
Furniture
Goods
Etc
o Immaterial
Shares
Patents
Other forms of Intellectual Property
Future Interests
Etc
- Not Property
o Humans/Bodies
Extension of bodies becoming property of the church and the abolishment
of slavery
Exelby v Handyside (1749) 2 East PC 652
o Bodies being the Property of Church
Doodeward v Spence (1908) 6 CLR 406
o No property in a dead body
o Res Communes
Access to amenities, ie Air, Running Water, Beaches and the Sea
- Questionable Property
o Animals
Some property rights apply, but not all
Yanner v Eaton (1999) 166 ALR 258

Possessory Title

- Highest form of title excluding true ownership

 o Right to exclude and enforce proprietary rights against anyone that doesnt possess
a better form of title
Perry v Clissold
The Winkfield [1902]
o Doesnt need to be legally acquired
o Transferable
However, the title of a successor will defeat the title of someone that has
taken possession from the predecessor
Asher v Whitlock (1865) LR 1 QB 1
o Also of note: Cannot Rely on the Better Title of a Third Party
Exception being the Jus Tertii defence A current
possessor can defend against a prior possessor by
relying on a third partys better title, if they lawfully
received possession from that third party
- Bailment
o Elements of a bailment
Only over personal property
Limited time
Bailee
Temporary right to retain possession
Must exercise a reasonable standard of care
Bailor
Legally enforceable right to regain possession
Cannot withdraw consent to the bailees possession unless the
bailee acts contrary to the standard of care
o Donald v Suckling (1866) LR 1 QB 85
- Adverse Possession
o An owner needs to show manifest control of their property and must make use of
their rights
o If someone takes possession of real property and manifests control of the property
for a period of 15 years they gain true ownership
Section 8 of Limitation of Actions Act 1958 (Vic), actions to recover land
limited to 15 years
Section 18 the true owners title to the land is extinguished after 15 years
The land must have been dispossessed by the owner, Section 9
Receiving Rent counts as possession of land, Section 13(3)
Any break in possession resets the 15 year period, Section 14(2)
However, the period is not reset if the possessory right is transferred
Asher v Whitlock (1865) LR 1 QB 1
Limitation period can be extended by up to 6 years from the date in which
incapacity ceases or a person dies, Section 23(1)
But not beyond a total of 30 years since the adverse possession
period first commenced,
o Persons immune to adverse possession
The Crown, Section 7 of Limitation of Actions Act 1958 (Vic)
Public Transport Corporation or Victoria Rail Track, Section 7A
Water Authorities, Section 7AB
 Councils, Section 7B
Owners Corporations, Section 7C
Road Management Authorities, Road Management Act 2004 (Vic) sch 5 cl 2
- Finders Keepers Rule
o Basically adverse possession but for personal property
Armory v Delamirie (1722) 93 ER 664
- Fixtures
o Possession of Land, by common law, carries with it a general right of possession to
everything that is attached to or under that land.
Exception being treasure troves ie gold or silver
Elwes v Brigg Gas Co (1866) 33 Ch D 562
Boat under ground
Waverly Borough Council v Fletcher [1996] QB 3344
Brooch in park
o When the goods are not attached to or under the land, the landowner must
manifest control over the goods
Bridge v Hawkesworth (1851) 21 LJQB 75
Shop owner and money
Parker v British Airways Board (1982) 2 QB 1004
o Annexations
Two questions: Degree of annexation? Purpose of annexation?
Holland v Hodgson (1872) LR 7 CP 328
Can be separately sold and removed.
Kays Leasing Corp v CSR Provident Fund [1962] VR 429
o Contractual right to sever or remove machinery
May be severed in equity
o Metal Manufacturers Ltd v FCT [1999] FCA 1712

Land Boundaries

- Land that doesnt abut water

o Boundaries are fixed by measurements from fixed survey marks
Found on title
o Must be determined by surveyors
- Land abuts water
o Tidal Boundaries
As expressed on the title
Or Mean High Water Mark
Average over a year of the highest tide in each lunar month and the
lowest tide in each lunar month
A-G (UK) v Chambers (1854) 43 ER 486
o Non Tidal Water Boundaries
Ad Medium Filum Aquae Rule
The waters are normally divided down the middle by the adjoining
land owners
Lanyon Pty Ltd v Canberra Washed Sands Pty Ltd (1966) 115 CLR 342
However in Victoria, under Section 385 of the Land Act 1958, the bed and
bank of a river that borders land is vested in the crown.
 Rights to access the water in a river granted by the Crown
o Regulated by the Water Act 1989 (Vic)
Accretion
o Land that is created by a natural deposit and over a long
period of time is given to the land owner
Gifford v Lord Yarborough (1828) 130 ER 1023
o If the build up is quick it goes to the crown
Williams v Booth (1910) 10 CLR 341
Avulsion
o Opposite of Accretion
o The fast goes to the land owner
o The slow goes to the crown

Native Title

- Terra Nullius Doctrine

o Blah blah blah
o Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Extended the doctrine
o Mabo (No 2)
Blah blah blah
o Native Title Act 1993 (Cth)
Must have a traditional connection to the land
Must practice traditional customs on the land
Must be recognised by common law
Only on public land
Yorta Yorta v Victoria (2002) 214 CLR 422
Very difficult to show traditional customs
Bodney v Benell (2008) 167 FCR 84
o Affirmed the restrictive interpretation of Section 233(1)
o Wik Peoples v Queensland (1996) 187 CLR 1
Can defeat pastoral leases
o WA v Ward (2002) 181 ALR 1
Extinguished by mining leases
o Fejo v Commonwealth (1999) 195 CLR 96
Fee simple estate grants extinguish native title claims

Co Ownership

- Tenants in Common
o Unity of Possession
o Doesnt have to be equal shares
- Joint Tenancy
o Share ownership as if one person
o Unity of Possession
o Unity of Time
o Unity of Title
o Unity of Interest
 o If any of the unities is destroyed, other than possession, at any time, the joint
tenancy is severed and becomes tenancy in common
o Right of Survivorship
Jus Accrescendi
If one joint tenant dies, their interest vests in the other tenants
Wright v Gibbons (1949) 78 CLR 313
o Corporations can be Joint Tenants under Section 28 of the Property Law Act 1958
(Vic)
- Powers of VCAT
o Section 233 of the Property Law Act 1958 (Vic) grants general powers to VCAT when
dealing with co ownership disputes
Order that compensation or reimbursement be paid
Order for one or more co owners to account to other co owners under
Section 28A
A co owner is liable in respect to receipt of more than his just or
proportionate share of rent
Order to adjust interest
Must take into account the following:
Any amount that a co owner has reasonably spent on improvement
of the land or goods, 233(2)(a)
Costs reasonably incurred in the maintenance or insurance of the
land or goods, 233(2)(b)
Payment by a co owner of more than their proportionate share of
any outgoings that all co owners are liable, 233(2)(c)
Damage caused by unreasonable use by a co owner, 233(2)(d)
If a co owner that has occupied the land or used the goods should
be liable for rent to other co owners who do not occupy or use the
land or goods, 233(2)(e) and 233(2)(f)
Section 233(3) = dont be a dick and exclude other co owners
o Occupation Rent
Not liable to pay occupation rent unless:
Wrongfully excluding others
o Biviano v Natoli
Prior agreement
o Leigh v Dickeson
The occupying party seeks contribution for improvements
o Luke v Luke
- Rule against Perpetuities
o Common Law Rule Against Perpetuities
A future interest must vest, if at all, within a period no longer than the
lifetime of some human being plus 21 years
o Perpetuities and Accumulation Act 1958
A future interest must vest within any specified period within 80 years from
date of grant, Section 5
Doesnt repeal the common law rule against perpetuities, but modifies it
Wait and see rule, Section 6
Section 8 makes a few assumptions
 A male can have a child if 12<age
A female can have a child if 12<age<55