โ Scribed by Samantha J. Hepburn
No coin nor oath required. For personal study only.
Full Title
Dedication
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
1 Concepts of Property
Characteristics of Western Property Interests
Private property
Associated property rights
Property as the Law of Things
Commentary
Property is a relationship
Yanner v Eaton
Commentary
Property is a legal construct
Fragmentation of property
Distinction Between Proprietary and Contractual Rights
Nature of the distinction
Lease or licence?
Cowell v Rosehill Racecourse Co Ltd
Commentary
Overview of the distinction between property and contract
Rationales for โprivateโ property
Classical liberalism: natural rights and the social contract
Utilitarianism
Socialism perspectives
Modernist: legal positivism
Contemporary perspectives
Revision Questions
Property and the environment
Property Rights and the Environment
Commentary
Non-Private Resources
Resources outside of ownership: res communes
Boundaries of Ownership: Resources Incapable of Ownership
Rights to a spectacle
Victoria Park Racing and Recreation Grounds Company Ltd v Taylor
Commentary
Resources incapable of ownership: moral boundaries
Resources incapable of ownership: common heritage of humanity
Revision Questions
2 Possession, Title and Personal Property
The Meaning of Possession: Land and Goods
Finders Keepers Rule
The Scope of Possessory Title
Doodeward v Spence
Commentary
The Natural Law Duty to Recognize Private Property Ownership: Kantโs Theory of Property in His Doctrine of Right
Revision Questions
Enforceability of Possessory Title
Asher v Whitlock
Commentary
Perry v Clissold
Commentary
Possession and Crown Title: Toohey J in Mabo v Queensland (No 2)
Commentary
Revision Questions
The Finders Keepers Rule
Waverley Borough Council v Fletcher
Commentary
Bailment: Consensual Acquisition of Possession
Possession of Goods: The Jus Tertii Defence
Costello v Chief Constable of Derbyshire Constabulary
Commentary
Revision Questions
The PPSA
Revision Questions
Possession and Seisin
Seisin and Possession as the Basis of Legal Title
Remedies for Real and Personal Property
Revision Questions
3 Fixtures, Encroachment and Boundaries
The Doctrine of Fixtures
Degree of annexation
Elitestone Ltd v Morris
Commentary
Object of annexation
The intention of the affixer
The nature of the chattel
Overall circumstances
Tenantโs rights to remove
Fixtures and third parties
Metal Manufactures Limited v Federal Commissioner of Taxation
Commentary
Other statutory provisions
Revision Questions
Effectiveness of the fixtures tests
The Law of Fixtures: Informed Principle or Independent Predilection?
Commentary
Revision Questions
Boundaries: Land Abutting Water
Tidal water boundaries
Non-tidal water boundaries
Water rights
The doctrine of accretion and avulsion
Williams v Booth
Commentary
Revision Questions
Boundaries and Encroachments for Land
Error in title
Contractual errors
Fence boundaries
Encroachments on to land
Revision Questions
Answer Plan
4 Adverse Possession
The Meaning of Adverse Possession
Outline of the Title Hierarchy
The Nature of Adverse Possession
Policy Rationales Underlying Adverse Possession
โShould the Law Recognise the Acquisition of Title by Adverse Possession?โ
Revision Questions
Limitation Period
Against which Owner?
Factual Possession
Open and peaceful
Without consent
Revision Questions
Intention to Possess: Animus Possidendi
JA Pye (Oxford) Ltd v Graham
Commentary
Whittlesea City Council v Abbatangelo
Commentary
Revision Questions
Multiple Possessions
Kierford Ridge Pty Ltd v Ward
Commentary
Disability and Fraud
Adverse Possession and the Torrens System
Revision Questions
Answer Plan
5 The Doctrine of Tenure and Estates
English Feudal Tenure
What is tenure?
English feudal history
Feudal Tenure and Native Title: Revising an Enduring Fiction
Revision Questions
Australian Tenure
Feudal Tenure and Native Title: Revising an Enduring Fiction
Revision Questions
Tenure and Radical Title
Disinterested Truth: The Legitimation of Feudal Tenure Post Mabo
The doctrine of estates
Freehold estate
Fee simple
Life estate
Future interests: remainder and reversion
Vested and contingent interests
Determinable or conditional?
Zapletal v Wright
Commentary
Legal contingent remainders
Legal remainder rules
Overview of Estates
Revision Questions
6 Restraints on Alienation and the Rule Against Perpetuities
Scope and Purpose of the Rule Restraining Alienation
Hall v Busst
Commentary
Nullagine Investments Pty Ltd v Western Australian Club Inc
Commentary
Elton v Cavill (No 2)
Commentary
Public policy and inalienability
Revision Questions
The Rule Against Perpetuities
Common law rule
Cram Foundation v Corbett-Jones
Commentary
Scope of the common law rule
Life in being
Certainty requirements
Statutory rule against perpetuities
Class gifts
Class-closing rules
Yeomans v Yeomans
Commentary
Understanding the Rule Against Perpetuities: Adopting a Five Step Approach to a Perpetuities Problem
The Rule Against Perpetuities: An Overview
Revision Questions
7 Leases
The Nature of a Lease: Non-Freehold Estate
Types of Leases
(i) Fixed-term tenancy
(ii) Periodic tenancy
(iii) Tenancy at will
(iv) Tenancy at sufferance
Validation Requirements
Statutory Formalities for the Creation of Common Law Leases
Exclusive Possession
Radaich v Smith
Street v Mountford
Commentary
Swan v Uecker
Commentary
Revision Questions
Certainty Requirements
Equitable Leases
Walsh v Lonsdale
Commentary
The doctrine of part performance
Tenancy by estoppel
Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd
Commentary
Revision Questions
Common Law Rights and Duties
Reasonable habitability
Landlordโs duty of care
Jones v Bartlett
Commentary
Duty to Provide Tenant with Quiet Possession/Duty Not to Derogate
Tenantโs Duty to Use the Premises in a Tenant-Like Manner
Miscellaneous tenant duties
Express contractual duties
Specific statutory duties
Revision Questions
Assignment and Sub-Letting
Qualification of the right
Privity of contract
Privity of estate
P&A Swift Investments v Combined English Stores Group
Commentary
Remedies
Right of re-entry
Termination and repudiation
Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd
Commentary
The doctrine of frustration
Merger and surrender
Revision Questions
8 Native Title
Pre-Mabo Position
Commentary
The Mabo Decision
Revisiting sovereignty assumptions
Radical Title
Common Law Native Title
Extinguishment
Common Law Doctrine of Extinguishment: More than a Pragmatic Compromise
Commentary
Revision Questions
Statutory Recognition of Native Title
Commentary
Traditional Laws and Customs
Members of the Yorta Yorta Aboriginal Community v Victoria
Commentary
Bodney v Bennell
Commentary
Revision Questions
Yanner v Eaton
Commentary
Extinguishment Tests
Wik and the Scope of Common Law Extinguishment
Wik Peoples v Queensland
Commentary
Revision Questions
Western Australia v Ward
Commentary
Fejo v Commonwealth
Commentary
Native Title and Coastal Waters
Akiba v The Commonwealth
Commentary
The Native Title Act: An Outline of Key Provisions
Recognition of native title
The determination of native title
Validation and confirmation of past Acts
Validation of intermediate period Acts
Future Act Regime
The registration test
Right to negotiate
ILUAs
Revision Questions
NTA Overview
Categorisation of Crown Grants Under NTA
Effect of Validation on Native Title
Future Act Regime: Nature, Effect and Requirements
9 Equitable Interests
The Equitable Jurisdiction
The Difference Between Common Law and Equitable Interests
Different Forms of Equitable Title
Express equitable interests
Elements of a trust
Westdeutsche Landesbank Girozentrale v Islington London Borough Council
Commentary
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties
Commentary
Formality Requirements for the Creation of Express Trusts
Formality Requirements for the Creation of Equitable Interests in Land: Statute of Frauds
Revision Questions
Doctrine of Part Performance
Implied Equitable Interests
Resulting trusts
Failed Express Trust
Specific Purpose Loan
Revision Questions
Contributions to Property: Purchase Money Resulting Trusts
Trustees of the Property of Cummins (a bankrupt) v Cummins
Commentary
Other Forms of Implied Equitable Interests: The Equitable Lien
Imposed Equitable Interests
Remedial constructive trust
Muschinski v Dodds
Commentary
Baumgartner v Baumgartner
Commentary
Giumelli v Giumelli
Commentary
Revision Questions
The Institutional Constructive Trust
Lysaght v Edwards
Commentary
Tanwar Enterprises Pty Ltd v Cauchi
Commentary
Revision Questions
The Personal (Mere) Equity
Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq)
Commentary
Revision Questions
Overview of Equitable Proprietary Interests
10 Priority Rules
Relevance of Priority
Legal Interests
Formalities
Commentary
Manton v Parabolic Pty Ltd
Commentary
Chain of Title
Nemo Dat Principle
Equitable Interests
Multiplicity
Priority Rules
Prior legal and subsequent equitable
Northern Counties of England Fire Insurance Co v Whipp
Commentary
Revision Questions
Prior Equitable Title and Subsequent Legal Title
Pilcher v Rawlins
Commentary
The Doctrine of Notice
Revision Questions
Tacking: Tabula in Naufragio
Wilkes v Spooner Rule
Competing Equitable Interests
Rice v Rice
Commentary
Estoppel
Revision Questions
Prior Mere Equity and Subsequent Equitable Interest
Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq)
Ruthol v Mills
Commentary
Revision Questions
11 The Torrens System
An Outline of the Torrens System: Old Title Land, the Deeds Registration System and Conversion of Old Title
Objectives of the Torrens System
Characteristics of the Torrens System
The Register
Registrable interests
Paramount interests
Indefeasibility of Title: the Statutory Provisions
Commentary
Immediate and deferred indefeasibility
Gibbs v Messer
Commentary
Frazer v Walker
Commentary
Breskvar v Wall
Commentary
Mercantile Credits v Shell Co of Australia Ltd
Commentary
Revision Questions
Statutory Exceptions to Indefeasibility
Statutory fraud
Loke Yew v Port Swettenham Rubber Co
Commentary
Bahr v Nicolay (No 2)
Commentary
Russo v Bendigo Bank
Commentary
Bank of South Australia v Ferguson
Commentary
Cassegrain Pty Ltd v Gerard Cassegrain
Commentary
In Personam Exception
Bahr v Nicolay (No 2)
Commentary
Macquarie Bank v Sixty-Fourth Throne
Commentary
LHK Nominees Pty Ltd v Kenworthy
Commentary
Farah Constructions Pty Ltd v Say-Dee Pty Ltd
Commentary
Revision Questions
Volunteers
King v Smail
Commentary
Rasmussen v Rasmussen
Valoutin Pty Ltd v Furst
Commentary
Bogdanovic v Koteff
Commentary
Conlan v Registrar of Titles
Commentary
Revision Questions
Inconsistent Legislation
Pratten v Warringah Shire Council
Commentary
Horvath v Commonwealth Bank of Australia
Commentary
Hillpalm v Heavens Door
Commentary
City of Canada Bay Council v Bonaccorso Pty Ltd
Commentary
Revision Questions
Prior Certificate of Title/Erroneous Description of Land
Forgery, Insufficient Power of Attorney or Disability
Paramount Interests: Adverse Possession, Easements and Tenancies
Adverse possession
Variations
Easements
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd
Commentary
McGrath v Campbell
Commentary
Tenancies
State Guarantee of Title
Bringing the land under the Act
Deprivation of an interest or estate from fraud
Diemasters v Meadowcorp
Commentary
Error or misdescription in the Register
Registration of another person
Registrarโs Power to Correct the Register
Revision Questions
12 Electronic Conveyancing
What is Electronic Conveyancing?
Regulatory Framework
Key Concepts
Acronyms
The documentary framework for PEXA
Client authorisation
Verification of identity
Digital signature
Electronic Certificate of Title
Summary of eCT developments in New South Wales
Developments for eCT in other states
Electronic Conveyancing and the Torrens System
Concerns and Risks Associated with Electronic Conveyancing
Benefits of Electronic Conveyancing
Conclusion
13 Unregistered Interests
Nature of Unregistered Interest
Barry v Heider
Commentary
The Caveat System
The Nature of a Caveatable Interest
Failure to Lodge a Caveat
Leros Pty Ltd v Terara Pty Ltd
Commentary
Caveat Must Relate to an Existing Interest
Priority Disputes Between Unregistered Interests
Merit analysis: assessing the better equity
Heid v Reliance Finance Corporation
Commentary
Different forms of priority disputes
Black v Garnock
Commentary
J and H Just (Holdings) v Bank of New South Wales
Commentary
IAC (Finance) Pty Ltd v Courtenay
Commentary
Revision Questions
Jacobs v Platt Nominees
Commentary
The Relevance of Notice
Moffett v Dillon
Commentary
Revision Questions
14 Easements
Nature of an Easement
Easements and natural rights
Profits ร prendre
Rentcharge
Essential Elements of an Easement
Dominant and servient tenement
The easement must accommodate the dominant tenement
Dominant and servient owners must be different
The easement must be capable of forming the subject matter of a grant
Re Ellenborough Park
Riley v Penttila
Commentary
Ancillary rights
Different Forms of Easement
New easement rights
Grants and reservations
Express easements and statutory powers
Implied easements of necessity and common intention
Easements of necessity
Adealon International Proprietary Ltd v London Borough of Merton
Commentary
North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd
Commentary
Common intention easements
Continuous and apparent easements
McGrath v Campbell
Commentary
Easements arising from construction
Dabbs v Seaman
Commentary
Easements arising under the non-derogation principle
Wheeldon v Burrows
Commentary
Revision Questions
Easements by Prescription
Construction of Easements
Westfield Management Ltd v Perpetual Trustee Ltd
Commentary
Extinguishment and Modification of Easements
Abandonment
Treweeke v 36 Wolseley Road Pty Ltd
Commentary
Bookville Pty Ltd v OโLoghlen
Commentary
Extinguishment on the basis of a change in circumstances
Unity of ownership
Revision Questions
Answer Plan
15 Restrictive Covenants
Contractual Nature of the Covenant
The Utility of Covenants
Privity of Contract and the Enforcement of Covenants
Revision Questions
Rule against Passing the Burden of a Covenant Under Common Law
Austerberry v Corporation of Oldham
Commentary
Benefit and Burden of a Covenant
Thamesmead Town Ltd v Allotey
Commentary
Annexation of Rentcharge
Revision Questions
Passing the Benefit Under Common Law: The โTouch and Concernโ Test
Congleton v Pattison
Commentary
Revision Questions
Passing the Burden in Equity: Enforcing a Restrictive Covenant
Tulk v Moxhay
Commentary
Forestview Nominees v Perpetual Trustees WA
Commentary
Restrictive rather than positive
Intention to impose the burden upon a knowing successor in title
Covenant identifies benefited land
Revision Questions
Passing the Benefit of a Covenant in Equity
Federated Homes v Mill Lodge Properties
Commentary
Midland Brick Company Pty Ltd v Welsh
Commentary
Revision Questions
Assignment of Covenants
Assigning the Benefit of a Covenant in Equity
Re Union of London and Smithโs Bank Ltdโs Conveyance
Commentary
Revision Questions
Building Schemes
Basic requirements for building schemes
Elliston v Reacher
Commentary
Mutuality
Small v Oliver & Saunders (Developments) Ltd
Commentary
Building schemes and the Torrens system
Re Dennerstein
Commentary
Revision Questions
Extinguishment and Modification of Covenants
Stanhill Pty Ltd v Jackson
Commentary
Revision Questions
Answer Plan
16 Mortgages
What is a Mortgage?
The Equity of Redemption
Campbell v Holyland
Commentary
Revision Questions
Clogs on the equity of redemption
Relevance of Unconscionability
Lift Capital Partners Pty Ltd v Merrill Lynch International
Commentary
Revision Questions
Formality Requirements and Intention
Revision Questions
Types of Mortgages
Old title mortgage
Torrens title mortgage
Figgins Holdings v SEAA Enterprises Pty Ltd
Commentary
Revision Questions
Equitable mortgages
Formal mortgage over equitable title
Formal mortgage over legal title improperly executed
Specifically enforceable agreement to mortgage
Theodore v Mistford Pty Ltd
Commentary
Mortgage by deposit of title deeds (mortgagor and third party)
Re Wallis and Simmonds (Builders) Ltd
Commentary
CNG Co (Aust) Pty Ltd v Australia & New Zealand Banking Group
Commentary
Consumer Credit Legislation
Revision Questions
Rights and Duties Under a Mortgage
Right to sue for loan moneys
Right to possession
Right to assign a mortgage debt
Revision Questions
Power of Sale
Notice requirements
Good faith requirements of the mortgagor
Upton v Tasmanian Perpetual Trustees Ltd
Commentary
Revision Questions
Improper sale and third party purchasers
Forsyth v Blundell
Commentary
Foreclosure and Receivership
Revision Questions
17 Co-Ownership
What is Co-ownership?
Joint tenancy
Unity of possession
Unity of interest
Unity of title
Unity of time
The right of survivorship
The forfeiture rule
Revision Questions
Tenancy in common
Creation Requirements
Creation under common law
Robertson v Fraser
Commentary
Common law presumption of a joint tenancy
Public Trustee v Pfeiffle
Commentary
Revision Questions
Statutory presumption of a joint tenancy
Aoun Investments Pty Ltd v Chief Commissioner of State Revenue
Commentary
Revision Questions
Creation in equity
Unequal contribution to purchase price
Delehunt v Carmody
Commentary
Mortgagees
Business partners
Other circumstances where beneficial entitlement intended
Malayan Credit Ltd v Jack Chia-MPH Ltd
Commentary
Stack v Dowden
Commentary
Revision Questions
Approaches to Assessing Co-owner Presumptions
Rights and duties of co-owners
Right to occupy/occupation rent
Wrongful exclusion
Biviano v Natoli
Commentary
Revision Questions
Agreement to pay occupation rent
Occupation rent and claim for improvements
Rents received by occupying co-owner
Forgeard v Shanahan
Commentary
Expenditure on improvements and repairs
Revision Questions
Right to encumber/alienate interest of a co-owner
Hedley v Roberts
Commentary
Trespass and waste
Severance of a Joint Tenancy
What is severance?
Severance by alienation
Wright v Gibbons
Commentary
Revision Questions
Alienation at law and alienation in equity
Corin v Patton
Commentary
Revision Questions
Severance by lease
Revision Questions
Severance by mortgage
Lyons v Lyons
Commentary
Severance by agreement
Hulme v Schaecken
Commentary
Peldan v Anderson
Commentary
Revision Questions
Criminal Culpability and the Joint Tenancy
Revision Questions
Partition and Sale
Legislative provisions
Commentary
Revision Questions
Exam Plan
Index
๐ SIMILAR VOLUMES
<span>An analysis of property and land law in Australia.</span>
This important book introduces the conceptual framework of interests in real and personal property. Carefully selected case and legislation extracts from across Australian jurisdictions are discussed in detail, and relevant principles highlighted. The commentary evaluates the area of law, status and
This book provides full coverage of basic property and land law principles. Particular attention is given to principles relating to personality and the role of possession for both land and chattels. Relevant trust and equitable principles are explained.