!"#!$"%&'()**+"&',-./'
'
!
"!
0$1$"+2'2+3
!
#!
!$"(#1+2'!"#!$"%&'
Property refers to a right to a thing and hence necessarily, the legal relationship between people
with respect to that thing.
•
•
•
•
•
•
the right to use, enjoy, the right to exclude others from use and the right to alienate are
hallmarks of property within the common law system (Milirnpum v Mabako)
Property rights are theoretically enforceable against the world and thus, have a greater sphere
of enforceability than personal rights. Gives rise to a greater range of remedies.
Real property v personal property: There is a distinction between rights associated with
real property (land) & personal property (effectively all else), just as there are differences
between personal rights enforceable against some (in personam), and proprietary rights
enforceable against the whole world (in rem)
Property is something you can get back as of right because land is immovable, permanent and
indestructible, they are of high value and it is unique.
The person who has land has it from the heavens above to the centre of the earth below
(Barron of Bernstien v Skyways).
The position of CL is that the human body is not property, and cannot be subject to
property interests: property is too crude a legal device to deal with the conflicting
legal/ethical/social issues underpinning bodily integrity (Moore v Regents of the University
of California)
King v David Allen & Sons [1916]
Facts: K entered into contract w Allen & Sons (originally P), giving them exclusive license to affi
posters and advertisements to a wall not yet constructed, later to become a picture theatre. Annual rent
was paid. K then entered into a 40 year lease with a second company. K became director of the second
company. Allen & Sons tried to exercise right to affix posters, later Co got angry.
Held: Allen & Sons could sue for breach of contract but couldn’t sue King because there was no
proprietary right with the subsequent company.
Moore v Regents of the University of California (1990)
Facts: M sued his doctor for conversion of his spleen – argued he had a proprietary interest in his
spleen. When his spleen was extracted, Dr recognized that cells had unique features making them
commercially and scientifically valuable. Claimed proprietary rights were infringed as he wasn’t told
or consented.
Held: No proprietary interest, therefore couldn’t sue for conversion although may have had another
remedy in another area.
!
$!
4#5%"61$'#7'768%)"$('
The Doctrine of Fixtures states that a chattel/chose in possession (tangible good) attached to land
•
in such a way as to cease as a chattel in law becomes instead part of the real property
This is a profound transformation: e.g. each brick when building a house starts as personal
o
property, but no longer enjoy ‘separate existence’ from the land once the house is built and is a
question of law (Reynolds v Ashby & Son)
Fixtures are vital to determine who owns it (since the chattel’s original owner loses it to
o
the land’s owner the moment it become a part of the land as a fixture)
!
Vendor and Purchaser – if items are fixtures when land is sold, then those things
automatically pass to the purchaser without the need to specifically list items in
real estate. Vendor has to remove the objects before possession of property is give
to P and if they retain their nature as goods (Callumberry v Callumberry)
!
Mortgagor/Mortgagee: the mortgagee has rights over the mortgagor’s land AND its
fixtures in case of default
!
Landlord/Tenant: tenants may attach things to the leased property, but they run
the risk of losing ownership (under common law)
!
[Is [__the object__] a chattel or a fixture?]
STEPS
1.
2.
3.
Is the object in the contract?
•
Look to the facts – is there any mention?
•
If not, go to step 2:-
Start with presumption:
•
If the thing is attached to the real estate " presume fixture
•
If the thing is resting on its own weight " presume chattel
•
Comment: this step merely allocates the burden of proof
Intention test: object and purpose – Belgrave Nominees
•
Objective test
•
Look at: nature and degree of attachment, ease of removal of thing, common understandings,
role of subjective intention (relevant, not definitive), who is attacher and relationship of
attacher with property: Barlin Scott; Leigh v Taylor
4.
If chattel, owner of chattel may have causes of action in trespass, detinue or conversion
!
!
!
%!
INTENTION
Holland v Hodgson (1872) LR 7 CP
Whether a chattel annexed to the land is a fixture or not depends on the circumstances
# It is a question which depends upon to circumstances which indicate intention:
o
a) the degree of annexation
o
b) the object of annexation
# In particular, the rule the court proposed was:
o
Articles that are not otherwise attached to the land by their own weight show they are not
intended to be part of the land
o
The onus of proving they are a part of the land lay with those who assert they cease to be
chattels
o
An article which is affixed to the land even slightly is to be considered a part of the land,
unless the circumstances show that it was intended all along to continue as a chattel
•
If wishing to prove that it is a fixture although it is sitting on its own weight, the onus is upon the
landowner; if wishing to prove that it is still a chattel despite being locked down, the onus is upon the
chattel’s owner
!
Belgrave Nominees v Barlin Scott [1984]
!
Facts: P entered into agreement with Gyde to carry out substantial renovations. P subcontracted with D for
supply and installation of air-conditioning plants to be installed on rooves . D went about work and fitted to the
roof of the buildings two air conditioning plant, importantly, each unit was rested on it’s own weight and not
bolted – bolting them down would have resulted in vibrations and eccessive noise. Connected to water and
electrical system. Gyde went bankrupt and subcontractors removed air-conditioning plants because they were
not paid. P instituted proceedings saying that air-conditioning plants were fixtures and were part of the real
estate – thus could not be removed
Held:
•
Air-conditioning units were fixtures and therefore D could not remove them
•
Whether fixture or chattel will depend on the individual circumstances of each case
THE TEST:
•
!
•
1) the intention evidenced by the degree of annexation; and
•
2)the purpose of annexation
legal effect of presumption is to allocate burden of proof.
&!
(1) Factors to consider in intention test: (OBJECTIVE TEST!!)
•
extent of physical attachment; ease of removal
•
nature of the chattel and its relationship to realty
!
is it temporary in nature or permanent
!
common understandings- what you expect there to be when you buy (especially in
relation to residential real estate)
•
whether the attachment is contemplated permanent, indefinite, substantial or merely temporary
•
the relation and situation of the party making the annexation in relation to the owner or person in possession
•
the purpose for which the chattel was fixed
!
i.e. why it was attached (subjective intention)
(2) Application of factors
•
the very nature of the air-conditioning plants were intended to be permanent
•
the defendant, who carried on the business of suppliers and fitters of such plant, supplied positioned and
connected up the air-conditioning plants as subcontractor
•
the plaintiffs are the registered proprietors of the property
•
the degree of annexation was slight
•
!
They were not bolted in but were attached elsewhere
!
Were also attached to electricity and water – but this was easy to remove
!
Thus points towards chattel
plants were considered an essential part of the building necessary for its use as an office building
# Therefore most factors pointed in terms of fixture
!
Leigh v Taylor [1902]
(Illustrates objective intention test and how it can overrule presumption)
Facts: Valuable tapestries hung in drawing room of house by life tenant of that house. In order to fasten
valuable tapestries strips of wood were nailed to the wall, canvas stretched over wood and nailed in, and tapestry
stretched over canvas and nailed in, with frames fastened to structure. Thus from this, the presumption was that
the tapestries were fixtures
Held: Court looked at the person doing the fixing and their relationship to the real estate (factor from Belgrave).
Rebutted presumption on basis of objective intention test
•
Factors
o
Relationship of attacher to real estate
!
Tapestries not put up by owner of fee simple but by life tenant
!
Objective bystander would not think that owner of tapestries intended to transfer
ownership
!
'!
o
Nature of property
!
Ornamental and valuable
!
Concluded that although the tapestries were affixed to the wall this was the only way
they could be enjoyed as ornamental tapestries
!
The tapestries could be removed from the wall without damaging the wall in any
material way.
•
They observed that the life tenant was not likely to annex the tapestries for the benefit of the person
succeeding
•
The mode of annexation is only one of the circumstance and not always the most important
SUBJECTIVE INTENTION
•
Relevant factor to consider in considering object and purpose test – but not determinative
•
What if there was clear evidence that the parties intended the thing to remain a chattel although it is
affixed to real estate
•
Retention of title clause: Even where person has ownership, title doesn’t pass to the purchaser until
the full purchase price is paid at the end of the contract period.
o
For example: you might possess the goods but there might be such a clause in a contract
which legally means you aren’t the owner.
!
Hobson v Gorringe [1897]
Facts: King agreed to buy gas engine from H under a credit contract. This contract included a retention of title
clause: property in engine remained with H until King had paid full purchase price. King attached engine to real
estate (a saw mill) which was bolted into concrete bed – therefore permanently fixed. King mortgaged real
estate to Gorringe including saw mill. King defaulted and therefore Gorringe had right to sell property including
all fixtures
Issue: who had right to engine? If engine was a fixture, it would not be the property of K. If engine was a
chattel, then the mortgagee cannot sell it.
Held: Came to clear conclusion that application of both tests would result in engine being a fixture and the
terms of agreement (i.e. credit contract) between King and H could not alter that outcome.
The contract was a private agreement between King and H – it could not bind G. The objective intention test
found it was a fixture despite subjective intention in higher purpose contract
!
Subjective intention only a factor
Although retention of title caluses are an important consideration, they must be ‘weighed up’ against the other
factors when interpreting intention.
!
(!
Elitestone v Morris [1997]
!
Facts: The house was a bungalow and thus, was not really attached to the real estate, simply resting on it’s own
weight. Using the presumption, one would assume that the house was a chattel…
Held: Despite the subjective intention, Court held bungalows were fixtures on the basis of the objective
intention test " subjective intention had a very minor role to play.
•
the intention of the parties is only relevant to the extent that it can be derived from the degree and
object of the annexation”
o
Cannot look to documents as to what constitutes subjective intention, but rather look to
surrounding circumstances
Permanent Trustee Australia Ltd v Esanda Corporation Ltd (1991)
•
Rolfe J said the ultimate question was whether the intention of the person placing the thing on the land,
viewed objectively, was that it should become a fixture
•
The intention was to be derived from all the relevant facts, including any evidence of actual intention
Attourney-General (Cth) v RT Co Pty Ltd (No 2)
!
Facts: Two printing presses, approximately 45 tonnes each, were attached by nuts and bolts to a concrete
foundation in the basement of a building
Held: Fullagar J held that the two printing presses were not fixtures. The main reason for the annexation was for
the purpose of holding the presses steady for more efficient use.
Reid v Smith (1905) 3 CLR 656
Facts: Lessee erected a dwelling house which was not affixed to the land, but simply rested by its own weigh
upon brick piers. This was best practice in the area so as to avoid destruction by white ants. Upon termination of
the lease, the landlord sough to restrain the lessee from removing the dwelling house on the ground that it had
become a fixture
Held: the house could not be removed. Although the building may have been erected as a temporary structure,
with the intention of ultimately removing it, this was not the intention of the parties
•
Circumstances showed that the building intended to be part of the freehold
•
The court said this was a building lease (one which obliged to the lessee to erect certain dwellings,
although not the dwelling in question), suggesting that the ‘intention was that any dwelling house put
on the land should be considered annexed to the freehold’
•
But Griffith CJ did add that a dwelling house, if unattached to the land was not necessarily a fixture
!
!
)!
Eon Metals NL v Commissioner of State Taxation (WA) (1991)
!
Facts: Mining plant and equipment which, without being moved from the mine where it was installed, was sold
to the appellant
Question: should the agreement for sale of plant and equipment be charged with stamp duty at the rate
applicable to personalty or realty
Held: Decided that some of the equipment remained a chattel. Ipp J took following factors into account:
•
the limited life of the mine
•
the transportable character of the equipment concerned
•
the common practice to transfer equipment of that kind
•
economic incentive to remove it
•
the relevantly slight degree of attachment to the ground the facility with which the detachment could
occur
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
*!
4#5%"61$'#7'"$2+%696%&'#7'%6%2$'
!
General principle: person in possession of land or goods, even as a wrongdoer (Costello), is entitled to take
action against anyone interfering with the possession unless the person interfering is able to demonstrate a
superior right to possession: Jeffries v GWRC
•
In property disputes, the issue for Courts is not who has ‘true ownership’ but rather who has the Best
Title (or better rights) to the property in question
•
To have possession, it is necessary to have (1) Physical Control: Young v Hichens; and (2) an
Intention to Possess/Physically Control (e.g. lending, where the borrower intends to control)
•
Property rights are relative, not absolute (Jeffries v The Great Western Railway Company).
•
property rights are determined according to the relative merits of the disputing claimants before the
court and only the relative merits of the disputing claimants before the court
•
property rights are relative – it is about who has the better right between the parties, not about who has
absolute ownership. How do Courts judge this? Prior possession is always a better right.
!
Jeffries v Great Western Railway Co (1856)
!
Facts: Owen, owner of trucks, transferred trucks to Jeffries although Jeffries didn’t immediately take possession
of trucks. Owen then proceeded to sell trucks a second time – to GWRC. Neither parties took possession. Court
of bankruptcy then made an order against Owen and therefore Owen’s goods had to be sold for creditors benefit.
The recent transfers to Jeffries and GWRC were held to be void (‘clawed back’). Jeffries then took possession of
trucks – at the time of doing so he had no idea about order of bankruptcy. GWRC then went to Jeffries place of
storage and took the trucks out of Jeffries possession. Jeffries sued GWRC seeking damages for trucks
Issue: Could GWRC defend claim by arguing that neither Jeffries or itself had rights to the truck but rather the
best rights were vested in the receiver (3rd party) – i.e. jus tertii
Held: GWRC could not rely on jus tertii defence
•
This is because the court was not concerned with who had the ‘best rights’ (i.e. absolute title)
•
Court was concerned with relativity of title (better rights)
•
Doctrine of relativity of title: who out of the disputing parties has the right to better right to the property
o
On this basis, Jeffries had a better right than GWRC
o
The second sale to GWRC was null and void – i.e. never had title at all (namo dat – cannot sell
what you don’t own)
•
Look to prior possession to decide who has better title
!
•
Since Jeffries had prior possession, they were entitled to damages
In some circumstances you may be able to rely on a third party (but not specifically invoking jus tertii
defence)
!
"+!
•
Just because you are a bona fide purchaser for value is not a defence if you end up buying property from
somebody who isn’t actually entitled to sell it to you.
Henry Berry v Rushton [1937]
Facts: In running a store, the Storekeeper, S, gave a bill of sale to R. Bill of sale was issued for a loan she
received from R – it was a mortgage over goods (but also included future goods). S entered into higher purchase
contract with Henry Berry for scales. Contract said property would not pass until final payment made (so scales
would remain w HB until full purchase price was paid). S defaulted on loan and hire purchase contract. R
seized goods including scales in exercise of rights under mortgage
HB sued for damages. R in defence argued that HB had no right to sue. At the time of sales S had right to
possession and actual possession and HB had neither – ie. did not satisfy causes of action in conversion or
detinue
Court: Agreed with Rushton that HB had no right to sue as HB didn’t have immediate right to possession
•
Under credit legislation, purchaser was not allowed to repossess goods until they have given notice of
default and opportunity to remedy default
•
There was no immediate right to possession unless HB did both these things
!
Costello v Chief Constable of Derbyshire
A wrongdoer who has actual possession can have better rights to property than any other person
Facts: C driving stolen car and was seized by police. However C was never charged with anything. Legislation
allowed police to retain car only for certain pruposes (investigation and trying to find true owner). Police could
not locate true owner – thus statutory right to possession of car came to an end. C sued police for wrongful
detention of car and won
Held: It did not matter that Mr. C knew the car was stolen:•
“Moral disapproval is not sufficient to displace general principle of relativity of title”
•
“...possession means the same thing and is entitled to the same legal protection whether or not it has
been obtained lawfully or by theft or by other unlawful means”
•
Hence, even a finder or a thief acquires a title to the thing found or stolen, albeit one which is
defeasible by the person who lost it or the victim of the theft (as well as by anybody else with a
superior title)
!
!
""!