Voidness is “cured” by registration
Introduction
TERM
DEFINITION
Real Property
Land and interests in land
Corporeal
hereditaments
Tangible interest in real property Corporeal – tangible Hereditament – inheritable
Incorporeal
hereditaments
Intangible interest in real property –e.g. easements
Right in rem
A property right – can enforce rights against everybody and nobody in particular
Right in personam
Generally a contractual right – it is a right between defined and nominated
persons
Right sui generis
A unique right– e.g. native title rights
Chattel
An item of
personal
property – i.e. not a fixture
Ouster
When one co-owner ejects another co-owner without a mutual agreement
3
The Concept of Property
What is “property”?
Three basic elements in any property right
o
Dominion - controlled exercise by a person or legal subject over an object; legally authorised
power
o
Exclusion – the right to exclude others from enjoying the same rights or interfering with the
property holder’s rights
o
External things – the “thing” which may be physical or intangible
Property is not about things, but rather the rights associated with that thing
Honoré provides 11 elements which may form the basis of a property right, but it is not necessary
for all these rights to exist as certain rights will attach to different things (right to: possess, use,
manage, income, consume, waste, destroy, security, transfer, enjoy indefinitely, prohibition of
harmful use, liability to execution, residuary rights)
It is not possible to hold absolute/unlimited property rights as rights are invariably modified by the
rights of others, therefore to own property is to stand in a particular relationship with others
Complex and ongoing debate
JT International SA v Commonwealth of Australia
[2012] HCA 43
HCA had to decide whether the Commonwealth acquired some intellectual property of the tobacco
company in making them use plain packaging
Moore v Regents of the University of California
(1990) 793 P2d 479
Facts: A spleen was removed with consent but there was no consent for the spleen to be used.
The
Doctor sold the research from the spleen and made millions by selling to a university
Body parts were determined to be property, but raises the question of gametes and embryos –
where does property start and finish
4
Categories of Property
The objects of property have been divided into two basic categories:
Real property, or
realty
Personal property, or
personalty
Land
Land is known as “realty” or “real property”
The rights over the permanent and immovable land and anything fixtures annexed to it, which may
also include a quantum of airspace, the physical earth and the minerals, vegetation and buildings on
it.
Corporeal property (hereditaments) refers to rights to the land itself
Incorporeal property (hereditaments)
relates to rights over the land
Sources of Australian land law (taken from UK)
o
Conveyancing Act 1919
(NSW)
o
Real Property Act 1900
(NSW)
o
Also use common law of contract, tort and equity
Personalty
