PROPERTY LAW � LECTURE 2

PROPERTY LAW � LECTURE 2 - PROPERTY LAW LECTURE 2...

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PROPERTY LAW – LECTURE 2 (DRAFT 1) INTRODUCTION TO PROPERTY RIGHTS IN LAW Table of Contents Introductory Concepts Distinction between Property and Non-Property Rights – The status of one is very different depending on property rights, especially with remedies. Distinction between Property Rights at Law and Equity Land and Fixtures – Determining what constitute land or what a fixture is The Boundary Between Property and Contract: Licenses Equitable remedies Introductory concepts Distinction between Real and Personal Property o Real Property: Land and Fixtures (Corporeal hereditaments are tangible things, whereas incorporeal hereditaments are intangible things) o Personal Property: Movables (size doesn’t matter) Possession – The physical act of having something where others are excluded from it. This is found as rights of a possessor and of what options are available to one who has possession. Ownership – Bundle of rights involving the liberal triads (where the liberal triads have incorporated three different rights which are use, disposition and exclusion). Someone who holds those three rights can be identified as the owner. Distinction between Property and Non-Property Rights
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Davis v Cth 1998 HCA o The plaintiff (Davis) was suing the defendant (Cwth) for a declaration that parts of the Australian Bicentennial Authority Act 1980 (Cwth) [ABAA] was beyond their legislative authority which the Commonwealth exercised. o The plaintiff had designed and printed clothing that bore the name of the Authority and certain symbols that were prescribed in terms of their use under s 22 ABAA. Other articles manufactured contained statements like ‘200 years or suppression and depression’. o The Commonwealth Government argued that the words listed in the statute relating to the settlement of Australia were off limits from use. In other words, the Commonwealth was trying to claim a propriety right in words. o The plaintiffs argued that the Commonwealth were trying to attain property rights in words and phrases and that this was beyond the legitimate scope of their power. The Cth were trying to gain the right to the symbol. o The High Court agreed with the plaintiff. The Bicentennial Authority could have property rights in regard to designed symbols, however no such right existed for prescribed words. To create rights in prescribed words would give the authority extraordinary power to regulate the everyday use of the words, notwithstanding the fact that the use of words may have no effect on the bicentenary or the objects of the Authority as listed in the legislation. There was ‘gross disproportionality’ between the what the legislation was trying to do and the ends that were sought to be achieved. How far does exclusivity extend?
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This note was uploaded on 09/27/2011 for the course FINANCE 1001 taught by Professor Profassorted during the Three '11 term at University of Adelaide.

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PROPERTY LAW � LECTURE 2 - PROPERTY LAW LECTURE 2...

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