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Voidness is “cured” by registrationIntroductionTERM 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 PropertyWhat is “property”?Three basic elements in any property rightoDominion - controlled exercise by a person or legal subject over an object; legally authorisedpoweroExclusion – the right to exclude others from enjoying the same rights or interfering with the property holder’s rightsoExternal things – the “thing” which may be physical or intangibleProperty is not about things, but rather the rights associated with that thingHonoré 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 othersComplex and ongoing debateJT International SA v Commonwealth of Australia  HCA 43HCA had to decide whether the Commonwealth acquired some intellectual property of the tobacco company in making them use plain packagingMoore v Regents of the University of California (1990) 793 P2d 479Facts: A spleen was removed with consent but there was no consent for the spleen to be used. TheDoctor sold the research from the spleen and made millions by selling to a universityBody parts were determined to be property, but raises the question of gametes and embryos – where does property start and finish4
Categories of PropertyThe objects of property have been divided into two basic categories:Real property, or realtyPersonal property, or personaltyLandLand 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 onit.Corporeal property (hereditaments) refers to rights to the land itselfIncorporeal property (hereditaments) relates to rights over the landSources of Australian land law (taken from UK)oConveyancing Act 1919(NSW)oReal Property Act 1900(NSW)oAlso use common law of contract, tort and equityPersonalty