Page 1 Table&of&Contents& Topic&1 ...
Table&of&Contents& Topic&1:&Introduction&to&Property&Law&.........................................................................&! Topic&2:&Possession&.............................................................................................................&! Topic&3:&Tenure&and&Estates&.............................................................................................&! Topic&4:&Leases&......................................................................................................................&! Topic&5:&Easements&and&Co>ownership&........................................................................&! Topic&6:&Mortgages&..............................................................................................................&! Topic&7:&Equitable&Interests&.............................................................................................&! Topic&8:&General&Law&Priorities&......................................................................................&! Topic&9:&Torrens&System&–&Indefeasibility&...................................................................&! Topic&10:&Exceptions&to&Indefeasibility&........................................................................&! Topic&11:&Priorities&.............................................................................................................&! !
& &
OneNote Online
2/12/2014 10:14 am
Case Bank Saturday,)August)3,)2013) 12:29)PM)
POSSESSION AS A SOURCE OF TITLE TO GOODS Taking Possession:
Young v Hitchens: Fishing case D waited until P was closing his net upon fish, and as the fish were being gathered but before the net was closed, D would swoop in and capture those fish with his own net. Impossible to say that there was possession until P had actual power over the fish. It may be that D acted unconscionably. P lacked control.
The Tubantia: Salvage operation not able to be completed. Ship went down in 1916, in 1922 people went to salvage it - found there was no possibility of raising the ship due to its broken condition. Throughout the summer of 1922, P continued dive operations whenever the whether permitted. In 1929, D anchored in close proximity to P's salvage operation and interfered with it (sound lines became tangled). P claimed they had their possession of the Tubantia interfered with and their ultimate success was imperiled. P had interrupted access and had not worked more than 25 days continuously, nor could they work continuously on any one day. HELD: There was animus possidendi (intention of possession). There was the use and occupation of which the subject matter was capable. There was power to exclude strangers from interfering if the plaintiffs did not unlawful force. An individual may take possession of a wreck by exerting as much control as its nature and situation permit. There is a difficulty in possessing things which lie in very deep water and can only be entered upon by workmen in fine weather and for short periods of ti with long interruptions - often prevented altogether by the weather. There is possession, despite the above. This case also allows policy reasoning to base decisions upon.
Bremner v Bleakley: 'Stolen sand' case D dug holes or trenches in the beach upon their lands on the shore where the sand met the grass-covered bank and that sand was swept from P's lands by storms and was ca by the wind across D's beach, eventually finding itself in the holes. Consequently, upon the next storm, the sand did not return to the P's land. Digging of the holes did not in any way cause or contribute to the movement of the sand, did no injury or damage and so no action can be properly found on it - excavation upon a person's own land gives no cause of action; only when there is proof of damage. As the sand was being sold, there might be an element of conversion. HELD: No evidence of conversion Distinguishing Salt Union Limited v Brunner Mond: in this case the act of pumping was what drew the brine to the D's land and made it useful. Here, that element is missing for the D's trench has no effect until the wind blew the sand into it. This severs the chain of causation. Possession of Objects in or on Land (Finders): British Airways Board v Parker: Rights/liabilities of a finder: No rights unless (1) goods are lost or abandoned; and (2) the finder takes the goods into care and control Limited rights if taken possession with dishonest intent Possessory rights good against all except someone with prior, better right If in the course of employment the find on behalf of employer Finder has an obligation to take reasonable measures to find the true owner Owner/occupier: Superior rights if goods are in or attached to the land - regardless of any awareness of the presence of goods Superior right if chattel on the land - only if prior to the finding the occupier manifested an intention to exercise control over the buildings and things in or on it To manifest an intention, the owner/occupier must take reasonable precautions to ensure lost things are found Same principles apply to boats and cars as for buildings
Armory v Delamirie: Apprentice chimney sweep found a jewel in the course of cleaning, took it to a goldsmith to have it appraised, offer was rejected but the jewel was not returned to apprentic Apprentice's claim for damages was upheld on the ground that he had prior possession which provided an entitlement protected all but someone with a superior right. The original owner was unknown and there does not seem to have been any claim by the occupier of the house whose chimney was being swept.
Byrne v Hoare: Policeman found gold ingot while on duty but not by reason of his office as a constable. The fact that he was on duty when he found it was merely incidental and as the first finder of the ingot he had a good title to it as against all but the true owner. Had not come into custody of the plaintiff in the course of his duty.
Chairman, National Crime Authority v Flack: Hidden money in briefcase case. Police searched a house suspecting the tenant's son of drug related offences. A locked briefcase containing $433,000 was discovered but no prosecutions were ever launched Flack began an action to recover the briefcase and its contents. F was the sole occupant of the premises and lived there alone - her son and married daughter, as well as a Mr. Sinclair (a close friend who lived nearby) had key the house and visited reasonably frequently, and may have come into the house when she was not there. Since F was the tenant of an ordinary residential house she had possession in law of those premises. In the circumstances, that fact was sufficient to establish the requisite manifestation of intention to possess all chattels on the premises. Parker v British Airways Board: the firmer the control (over a premises) the less will be the need to demonstrate independently the animus possidendi
Waverly Borough Council v Fletcher: Golden brooch found in a park with a metal detector. Where an article is found in or attached to land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land the better title. Where an article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it. https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 3
OneNote Online
2/12/2014 10:14 am
The Elwes Case: A license to dig does not amount to a license to take away. Use of the metal detector did not fall under the prescribed allowed acts, and digging and removing was an act of trespass. HELD: Park had superior title for item in the ground. Abandonment of Possession:
Re Jigrose: Abandonment Title remains with an original acquirer of the property until there is shown an intention to abandon it. It then becomes of public right and is liable to be appropriated by the n occupier. Title is not automatically transferred to the purchasers on abandonment. It will pass when there is an act of appropriation. Allen v Roughley: Possession continues until it is abandoned. POSSESSION AS A SOURCE OF TITLE TO LAND Rights Flowing from Possession of Land: Asher v Whitlock: Williamson leaves house to wife on condition she does not remarry - she does, dies, and daughter wins possession from step-dad. Possession is good title against all but the true owner. Possession can be assigned. Perry v Clissold: Compensation for acquisition of land, even for a squatter. Limitation Periods
Mulcahy v Curramore: Adverse possession When a person enters into adverse possession, and so long as he continues in possession before the expiry of the statutory period, he has title to the land in the nature of a fe simple, good against all the world except the true owner, and his title may be conveyed or devised or devolve upon, another person. Needs to be in possession of another's land for 15 years with the requisite factual and mental intention. Where there has been a series of persons in adverse possession by virtue of successive transmissions of the inchoate possessory title for a total period of twenty years or any extended period required by the Act, it will operate to extinguish the true owner's title. The last successor being then in possession will acquire a title in fee simple to the land good against all the world including the true owner. Where there is a series of trespassers, not deriving title from each other, who have been in adverse possession for a continuous period of twenty years or any extended period required by the Act, it will operate to extinguish the true owner's title. Possession by successive trespassers must be continuous to have this effect. An abandonment by one adverse possessor followed by a break in time when the land is not in possession of some person adversely to the true owner will restor the true owner's title to its pristine force. Upon the extinguishment of the true owner's title by successive trespassers (A, B, C & D) who have been in adverse possession continuously for the necessary period, the title in fee simple exists in the first of the successive trespassers, A. D, the final trespasser, who is in possession at the time when the true owner's title is extinguished, would, by virtue of his possession, have a title in fee sim good against all the world except A, B, & C. This would only suffice if A had not abandoned the property, otherwise D may have a title in fee simple good against all the world. The Limitation Act may be stopped from running first, if the true owner asserts their right, or secondly, the possessor acknowledges the true owner has a superior right. An owner may assert their right by instituting an action to recover the land or by making a peaceable but effective entry. S 18. Whittlesea City Council v Abbatangelo: adverse possession succeeds on neighboring land. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess - animus possidendi. George Wimpey v Sohn: enclosure is the strongest possible evidence of adverse possession. The intention required is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land. The determination of what acts of possession are sufficient to show factual possession always depends upon he particular facts and circumstances of the instant case. Ghilarducci v Ghilarducci: permission given by the true owner to the use of the land does prevent the use from constituting adverse possession.
TENURE AND ESTATES Wik Peoples v Queensland: Grant of pastoral leases do not automatically extinguish native title, does not confer rights of exclusive possession on the holder of the lease. Depends on the nature and terms of the lease. Where the rights of the lease are in conflict with native title rights, then the rights under the lease will prevail to the extent of any inconsistency. The granting of a lease does not extinguish any remaining native title rights.
Yanner v Eaton: Aboriginal man hunted and killed two crocs on traditional tribal lands and prosecuted on the basis that he violated the Fauna Conservation Act. Issue was whether the Act extinguished or limited native title to the provisions of the Act. HELD: The Act did not extinguish naïve title: Prohibited hunting or fishing 'other than in accordance with a license, permit or other instrument granted or issued to them under the law' Such wording was not inconsistent where native title exists. Act did not prohiit or restrict the appellant as a native title holder rom hunting or fishing for the purpose of satisfying personal domestic or non-commercia communal needs. Note situations where commercial use is involved - can 'tradition' adapt, evolve or change? What would a court decide in such an instance.
Zapletal v Wright: Married man, separated from wife. Wife did not contribute to purchase of house but the title showed both names registered. Was a gift - she was worried that she was without security should she not have him, so he promised to put her name on the title deed. She assured him that if she were to leave him, she would relinquish her name from the title. Transaction was regarded as a gift, subject to a condition subsequent - the term of the condition being that if she should cease to cohabit with the man (otherwise than by the death of either of the parties) her interest should cease. Gift was given to her to provide inducement for her not to leave him. https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 2 of 3
OneNote Online
2/12/2014 10:14 am
HELD: Condition subsequent void tending to immorality. Condition found to be severed and interest was granted to mistress. Prudential Assurance v London Residuary Body: Three limitations: 1. Starting date of the term 2. The continuance of it 3. The end of it All of these factors should be known with certainty at the beginning of the lease Must be stated with certainty and specifically or is expressed by reference to something which can, at the time when the lease takes effect, be looked to as a certain ascertainment of what the term is meant to be. 'at the end of the war' not sufficient enough as when the tenancy took effect, the term was completely uncertain - impossible to say how long it would have lasted. Argument that at some point it may be ascertained is not a good argument. A grant for an uncertain term does not create a lease. The grant for an uncertain term which takes the form of a yearly tenancy which cannot be determined by the landlord does not create a lease.
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 3 of 3
OneNote Online
2/12/2014 10:15 am
Torrens System Case Bank Monday,(October(14,(2013( 9:27(AM(
TORRENS SYSTEM: THE PRINCIPLE OF INDEFEASIBILITY Real Property Act 1886 (SA), ss 69, 70: 69: Title of registered proprietor indefeasible, except in cases of… 70: in other cases title of registered proprietor shall prevail Gibbs v Messer:
FACTS: Duplicate certificate of title left with C, who forged a transfer of the title to a fictitious person, H, who became the registered proprietor. C then prepared a mortgage from H security for a loan from M to H. This mortgage was registered, and C absconded with the money. Messer then brought an action to be reinstated as the registered proprietor, holding free of M's mortgage. HELD: Messer reinstated, no mortgage NO LONGER GOOD LAW Frazer v Walker:
FACTS: Mrs F borrowed money from R, giving a mortgage as security, by forging husbands signature. She failed to make payments of interest and R exercised power of sale to sell became the registered proprietor and tried to obtain possession of the land. Husband counterclaimed, contending that the mortgage to R was a nullity, seeking cancellation o of the mortgage of R and the interest of W and restoration of F's name to the Register, HELD: See Richards Slides Breskvar v Wall:
FACTS: B, the registered proprietors of land, gave P the duplicate certificate of title and an instrument of transfer signed by them without the name of the transferee. Subsequently, P inserted the name of his grandson, W, as the transferee, and W became the registered proprietor. Before B had discovered the fraud, W had contracted to sell the land to A an executed a transfer. Before this transfer was lodged for registration, B placed a caveat upon the register. HELD: A was a bona fide purchaser in good faith and for valuable consideration, without notice. By reason of fraud, the acquired title was defeasible. Immediate indefeasibility: registration of a void instrument passes title. P 286 of case book gives other examples of void instruments. Mercantile Credits v Shell Co of Australia:
FACTS: The registered proprietors of land (CA) granted a five year lease to the respondent, which was registered and contained a number of consecutive covenants for renewal. The renew was exercised when the original lease expired, and this extension of term was registered. CA then mortgaged the land in favour of the appellant. Before the responden register a further extension of the lease, the appellant gave notice of its intention to exercise its power of sale after default on the mortgage repayments. The respondent then caveat to forbid the registration of any subsequent dealing with the land unless the dealing was stated to be subject to the renewed lease. HELD: Registration of the dealing document confers indefeasibility for the interest created or transferred and on those terms and covenants in the document which delimit or qualify Acardi v Whittem:
FACTS: A, the registered proprietor of land, relied on G for financial advices and assistance. After suggesting that A set up a family trust, G persuaded A to sign two blank pieces of give him the title deeds. Z, a close associate of G, obtained a loan from W by handing over the title deeds and a mortgage seemingly executed by A. Z obtained an additiona days later on the security of a second mortgage given by A. It transpired that A signature on the first mortgage was forged, and that the two signed sheets of paper were used manufacture the second mortgage. HELD: A registered proprietor who is also a bona fide purchaser for value has an indefeasible title notwithstanding that he acquired his title by means of a forged document.
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 1
OneNote Online
2/12/2014 10:19 am
Chapter 1: Concept of Real Property Law Saturday,)August)3,)2013) 11:06)PM)
Torrens System: Title to land is derived from registration - title by registration, not one of registration of title. The only registered interests that can exist are those recognised by the system. System was introduced to simplify land transfer process and make land titles more certain.
Compulsory acquisition of property by the Commonwealth may be authorsed by laws of the Commonwealth Parliament. Under s 51 (xxxi) of the Constitution, the Commonwealth may make laws for the acquisition of property on just terms from any State or person for any purpose for which th Commonwealth has power to make laws. Just terms involve reasonable compensation: Bank of New South Wales v Commonwealth. To leave realty by will is to devise, to leave personalty by will is to bequeath Award of damages if an equitable remedy (specific performance or an injunction) was available even where specific performance or an injunction might be denied (pg. 31-32).
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 1
OneNote Online
2/12/2014 10:19 am
Chapter 16: The Scope and Meaning of Real Property (Pg. 770 - 790) Saturday,)August)3,)2013) 12:24)PM)
Fixtures The Relevant Tests:
The question of ownership may be determined by the express terms of a contract, to which the courts will apply it: Dixon Investment v Woakwine Industries. If not, the general law will apply. The starting point is the maxim: quicquid plantaur solo, solo cedit - whatever is attached to the land forms part of the land: Vopak Terminal Darwin v Natural Fuels Darwin A chattel, when fixed to the land is considered a fixture - however, once detached, it regains its status as a chattel: Commissioner of State Revenue (WA) v TEC Desert Two factors are relevant: The Degree of Annexation: Looks to the manner in which the chattel is attached to the land. Prima facie, if a chattel is attached to the land other than by its own weight (screws or bolts) it is a fixture: May v Ceedive This presumption applies even if the degree of detachment is very slight: Holland v Hodgson The greater the degree of attachment, the stronger the presumption appears to be: Spyer v Phillipson Buckland v Butterfield: A verandah attached to a house was held to be a fixture. If a chattel is only attached by its own weight, prima facie the chattel is not a fixture even if it has become embedded in the soil: Hamp v Bygrave Elwes v Maw: A Dutch barn attached to the land by wooden upright posts inset into the ground was held not to be a fixture. Hulme v Bringham: A printing press attached by its own weight was similarly held not to be a fixture. The Object of Annexation: The courts will examine whether the object was affixed to the land, on the one hand, as a temporary measure or for the purpose of displaying it as a chattel, or o hand, in order to benefit the real estate: Reid v Smith. In the former case, the chattel will be held not to be a fixture even if it is attached to the building other than by its own weight: Westpac Banking Corporat Rabaiov. Metal Manufacturers v Federal Commissioner of Taxation: Various considerations Whether removal would destroy the attached property Whether the cost of removal would exceed the value of the attached property Whether removal would occasion significant damage to the land or buildings to which the property is attached Whether the attachment was for the better enjoyment of the property or for the better enjoyment of the land or buildings to which it was attached The nature of the property itself The contemplated use of the property Period of time for which the property was to be in position Function to be served by the annexation of the property This list is not exhaustive or conclusive. The test is what the reasonable person would consider to be the reason for attaching the object to the land: Hobson v Gorringe. Actual intention is merely one piece of relevant evidence: Emmanuel (Rundle Mall) v CS (SA) Nature of the estate is another relevant factor: the court is less likely to infer an intention to benefit the real estate by a person with only a limited interest in the r as a tenant. Leigh v Taylor: Tenant for life attached valuable tapestries to the wall of the drawing room of a house. Tapestries attached to canvases by tacks, the canvas was nailed to wooden supports and the supports were nailed to the wall. Held that they were not fixtures. Reasoning was the affixing of the tapestries by nails to the wall was the only method by which the tapestries could be effectively displayed as chatte there was no intention to benefit the real estate by attaching the tapestries. Cf Re Starline Furniture: Joinery machines bolted to the cement floor of a factory and wired into the electrical system, which could be detached without causing damage nevertheless held to be fixtures because they were installed and affixed for the better use and enjoyment of the land and premises as a furniture factory. Before a chattel will escape the classification as a fixture under the object of annexation test, if it is attached to the land, it must be shown that the annexation wa necessary': Re De Falbe. It seems that the object of annexation test has assumed far greater significance: Pricewaterhouse Coopers Legal v Perpetual Trustees Victoria Degree test still relevant regarding attachment by own weight. Farley v Hawkins: All circumstances must be considered in deciding whether or not an abject is a fixture, with varying degrees of emphasis upon different factors from case that a common sense perspective must be adopted. National Australia Bank v Blacker: each case turns on its facts and there is no single test which is sufficient to determine the issue; the court must have regard to all the circu the case in making its determination, and no particular factors has primacy. Cases
National Dairies WA v Commissioner of State Revenue: Plant and equipment attached to a dairy business was a fixture and attracted stamp duty. Although it would have been pos time to remove the equipment in question, it had been placed on the land in order to incorporate it into the factory system. The fact that there was no physical annexation of the re equipment to the land was held to be irrelevant in light of the interconnection of the various items in the plant into an interconnected whole. Commissioner of State Revenue v Uniqema: Steam and electricity plant was brought onto the premises by the tenant and bolted to the concrete foundations of the building. Also h features that had a general lack otherwise of permanent attachment to the site which made it possible to be removed. Held not to be a fixture. Park v Lasrado: Large chandelier was not a fixture but a decorative chattel. Macrocom v City West Centre: 4.6 meter satellite dish was held to be a fixture based on its position on the roo, its weight, its method of connection to the building and the fact tha steel support to the floor was necessary prior to its installation. Borg v Cehner: A sewerage pipe running under a footpath and an attached inspection shaft were held to constitute a fixture and thus form part of the freehold of the footpath. Attorney-General v R T Co: Two printing presses were not fixtures even though they were attached to the building by nuts and bolts since the purpose of the annexation was to ho steady so that they could be used properly. Relationships: Vendor and Purchaser of Land
The relevant time for the consideration of the issue of fixtures is the date of the contract of sale: Phillips v Lamdin All fixtures attached to the land at that date pass with the land to the purchaser: Phillips v Lamdin Unless, they are expressly exempted in the contract of sale or unless the court is satisfied that the purchaser brought with notice (whether in writing or orally) that specified not pass with the land: Isaacs v Lord Law of Property Act 1936 (SA) s 16: Specifies that a conveyance of land is deemed to include fixtures - for this reason there need be no express mention of fixtures in the conveya Mortgagor and Mortgagee https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 2
OneNote Online
2/12/2014 10:19 am
All fixtures annexed to land subject to mortgage are automatically included within the scope of the mortgage and form part of the security: Law of Property Act s 7. Applies to both legal and equitable mortgages: Meux v Jacobs The mortgagor has no right to remove any fixtures (in the absence of express agreement to the contrary) installed either before or after the date of the mortgage and cannot take ad exceptions admitted in favour of tenants. Devisee and Personal Representative In the case of a bequest of land, at common law all fixtures pass with the devise and the testator's personal representatives have no right to remove them: Re Whaley Also applies in the case of intestacies: Norton v Dashwood Disputes Involving Third Parties
Despite the maxim nemo dat quod non habet (one cannot give what they do not have) title to chattels may be lost if they are attached to real property by someone other than the ow chattels: Crossley Bros v Lee. If X steals Y's bricks and builds with them upon Z's land, Z not Y becomes the owner of the land. Y's remedies (if any) lie in tort and or contract. Landlords and Tenants
Installation of Fixtures: There is no implied covenant prohibiting a tenant from installing fixtures in the rented premises. A tenant who installs fixtures without the landlord's consent may, in certain circumstances, be in breach of the implied covenant to use the premises in a tenant-like ma Doctrine of waste: A tenant who reduces the value of the rented premises by installing fixtures will have committed voluntary waste and will be liable in damages to the lan Removal of Fixtures: It must not be intended to be a permanent addition to the structure of the premises: Vesco Nominees v Stefan Hair Fashions Chattels annexed by a tenant to the rented premises may become fixtures under ordinary principles and legal title will vest in the landlord. In certain circumstances, the tenant is given a limited right to remove the fixtures he or she has installed. Landlord is treated as the owner of the fixture subject to the tenant's right of removal. Legal title will not revert to the tenant unless and until the tenant actually exercises his or her right of removal and severs the object from the rented premises: Lee. Right to remove only applies to articles brought onto the land and affixed by the tenant or by the tenant's predecessor-in-title: Eye Corp Australia v Goliat Does not extend to fixtures already forming part of the land at the commencement of the tenancy: Cottee Dairy Products v Minad Tenant only entitled to remove certain categories of fixtures - trade, ornamental and domestic fixtures: Vopac Terminal Darwin v Natural Fuels Dar Before a tenant can class a chattel as a tenant's fixture, in addition to proving that it falls within one of the recognised categories, the tenant must also prove that the object w temporarily and was not intended to be a permanent improvement: Spyer v Phillipson Basic common law rule is that the tenant must exercise his or her right of removal prior to the termination of the tenancy agreement (unless provided otherwise in the agreement): Commissioner of State Revenue v TEX Desert A tenant under a fixed-term lease whose agreement has expired by the effluxion (passing) of time (rather than forfeiture or surrender) is allowed a reasonable tim termination of the lease to remove the fixtures: Ex Parte Brook; Re Roberts Similarly, for tenancies with an uncertain duration or where the court considers there has not been a reasonable amount of time: Smith v City Petroleum No extension in the case of surrender (Leschallas v Woolf) or forfeiture: Pugh v Arton It is unclear whether the tenant is permitted at common law to remove trade fixtures if significant damage is caused to the rented premises by the removal: Fisher v Di In such cases, the tenant will be liable to repair the damage caused by the removal pursuant to the doctrine of waste and the implied covenant to use the premise like matter: Mancetter Developments v Garmanson Ornamental and domestic fixtures have been held to be removable only if they can be removed without substantial injury to the premises: Spyer v Phillipson Tenant not allowed to remove agricultural fixtures: Elwes v Maw If the fixture is classed as irremovable according to the two rules above (fails the tests) but the tenant removes the fixture illegally, the landlord may sue the tenant for damages un doctrine of waste: Hitchman v Walton. Anticipatory injunctions may be awarded. Traditionally, a tenant has not been under a legal obligation to remove any of the fixtures installed during the lease: Never-Stop v British Empire Exhibition Cf Wincant v South Australia: Tenant had carried out extensive alterations with the consent of the previous landlord. At the end of the lease, the tenant vacated the premises without r fixtures and reinstating the premises to its original condition. The premises were untenantable in this condition. Damages were awarded for the cost of the reinstatement of the premises. May be an obligation to remove fixtures at the end of a lease if their presence means that the premises are out of repair. On the death of a life tenant, the personal representatives may remove trade, ornamental and domestic fixtures within a reasonable time of the death: Registrar of Tiles v Spencer
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 2 of 2
OneNote Online
2/12/2014 10:26 am
Chapter 16: Scope and Meaning of Real Property Friday,(August(9,(2013( 7:30(PM(
Holland v Hodgson: When the article in question is no further attached to the land than by its own weight, it is generally to be considered a mere chattel. But even in such a case, if the intention is apparent to make the articles part of the land, they od become part of the land. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to show that it is never intended to be part of the land, and then it does not become part of the land. Australian Provincial Assurance v Coroneo: The test if whether a chattel which has been to some extent fixed to land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period, or whether it has been fixed with the intent that it shall remain in the position only for some temporary purpose. In the former case, it is a fixture, whether it has been fixed for the better enjoyment of a land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed. If it is proved to have been fixed merely for a temporary purpose, it is not a fixture. If a thing has been securely fixed, and in particular if it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong but not necessarily conclusive evidence that a permanent fixing was intended. On the other hand, a fixing that is very slight helps to support an inference that it was not intended to be permanent. Each case depends on its own facts. Reid v Smith: Occasions may arise where a chattel merely resting on its own weight has become a fixture. NH Dunn v LM Ericsson: A court ought to have regard to all the circumstances of the case in making its determination. New Zealand Government Property Corp v HM & S: a tenant should have the right to remove his fixtures so long as he remains in possession of the premises as tenant. Braidwood v Dunn: a statutory monthly tenant holding over after a lease was entitled to remove his fixtures, following the expiry of a notice to quit. Victoria Park Racing and Recreation Grounds v Taylor: Any person is entitled to look over the plaintiff's fences and to see what goes on in the plaintiff's land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Cowell v Rosehill Racecourse: P paid the entrance price and was later forcibly ejected. There are no interests granted. Simply a creation of a contractual obligation - a breach of which entitles the P to contractual damages.
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 1
& &
OneNote Online
2/12/2014 10:14 am
Case Bank Saturday,)August)3,)2013) 12:29)PM)
POSSESSION AS A SOURCE OF TITLE TO GOODS Taking Possession:
Young v Hitchens: Fishing case D waited until P was closing his net upon fish, and as the fish were being gathered but before the net was closed, D would swoop in and capture those fish with his own net. Impossible to say that there was possession until P had actual power over the fish. It may be that D acted unconscionably. P lacked control.
The Tubantia: Salvage operation not able to be completed. Ship went down in 1916, in 1922 people went to salvage it - found there was no possibility of raising the ship due to its broken condition. Throughout the summer of 1922, P continued dive operations whenever the whether permitted. In 1929, D anchored in close proximity to P's salvage operation and interfered with it (sound lines became tangled). P claimed they had their possession of the Tubantia interfered with and their ultimate success was imperiled. P had interrupted access and had not worked more than 25 days continuously, nor could they work continuously on any one day. HELD: There was animus possidendi (intention of possession). There was the use and occupation of which the subject matter was capable. There was power to exclude strangers from interfering if the plaintiffs did not unlawful force. An individual may take possession of a wreck by exerting as much control as its nature and situation permit. There is a difficulty in possessing things which lie in very deep water and can only be entered upon by workmen in fine weather and for short periods of ti with long interruptions - often prevented altogether by the weather. There is possession, despite the above. This case also allows policy reasoning to base decisions upon.
Bremner v Bleakley: 'Stolen sand' case D dug holes or trenches in the beach upon their lands on the shore where the sand met the grass-covered bank and that sand was swept from P's lands by storms and was ca by the wind across D's beach, eventually finding itself in the holes. Consequently, upon the next storm, the sand did not return to the P's land. Digging of the holes did not in any way cause or contribute to the movement of the sand, did no injury or damage and so no action can be properly found on it - excavation upon a person's own land gives no cause of action; only when there is proof of damage. As the sand was being sold, there might be an element of conversion. HELD: No evidence of conversion Distinguishing Salt Union Limited v Brunner Mond: in this case the act of pumping was what drew the brine to the D's land and made it useful. Here, that element is missing for the D's trench has no effect until the wind blew the sand into it. This severs the chain of causation. Possession of Objects in or on Land (Finders): British Airways Board v Parker: Rights/liabilities of a finder: No rights unless (1) goods are lost or abandoned; and (2) the finder takes the goods into care and control Limited rights if taken possession with dishonest intent Possessory rights good against all except someone with prior, better right If in the course of employment the find on behalf of employer Finder has an obligation to take reasonable measures to find the true owner Owner/occupier: Superior rights if goods are in or attached to the land - regardless of any awareness of the presence of goods Superior right if chattel on the land - only if prior to the finding the occupier manifested an intention to exercise control over the buildings and things in or on it To manifest an intention, the owner/occupier must take reasonable precautions to ensure lost things are found Same principles apply to boats and cars as for buildings
Armory v Delamirie: Apprentice chimney sweep found a jewel in the course of cleaning, took it to a goldsmith to have it appraised, offer was rejected but the jewel was not returned to apprentic Apprentice's claim for damages was upheld on the ground that he had prior possession which provided an entitlement protected all but someone with a superior right. The original owner was unknown and there does not seem to have been any claim by the occupier of the house whose chimney was being swept.
Byrne v Hoare: Policeman found gold ingot while on duty but not by reason of his office as a constable. The fact that he was on duty when he found it was merely incidental and as the first finder of the ingot he had a good title to it as against all but the true owner. Had not come into custody of the plaintiff in the course of his duty.
Chairman, National Crime Authority v Flack: Hidden money in briefcase case. Police searched a house suspecting the tenant's son of drug related offences. A locked briefcase containing $433,000 was discovered but no prosecutions were ever launched Flack began an action to recover the briefcase and its contents. F was the sole occupant of the premises and lived there alone - her son and married daughter, as well as a Mr. Sinclair (a close friend who lived nearby) had key the house and visited reasonably frequently, and may have come into the house when she was not there. Since F was the tenant of an ordinary residential house she had possession in law of those premises. In the circumstances, that fact was sufficient to establish the requisite manifestation of intention to possess all chattels on the premises. Parker v British Airways Board: the firmer the control (over a premises) the less will be the need to demonstrate independently the animus possidendi
Waverly Borough Council v Fletcher: Golden brooch found in a park with a metal detector. Where an article is found in or attached to land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land the better title. Where an article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it. https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 3
OneNote Online
2/12/2014 10:14 am
The Elwes Case: A license to dig does not amount to a license to take away. Use of the metal detector did not fall under the prescribed allowed acts, and digging and removing was an act of trespass. HELD: Park had superior title for item in the ground. Abandonment of Possession:
Re Jigrose: Abandonment Title remains with an original acquirer of the property until there is shown an intention to abandon it. It then becomes of public right and is liable to be appropriated by the n occupier. Title is not automatically transferred to the purchasers on abandonment. It will pass when there is an act of appropriation. Allen v Roughley: Possession continues until it is abandoned. POSSESSION AS A SOURCE OF TITLE TO LAND Rights Flowing from Possession of Land: Asher v Whitlock: Williamson leaves house to wife on condition she does not remarry - she does, dies, and daughter wins possession from step-dad. Possession is good title against all but the true owner. Possession can be assigned. Perry v Clissold: Compensation for acquisition of land, even for a squatter. Limitation Periods
Mulcahy v Curramore: Adverse possession When a person enters into adverse possession, and so long as he continues in possession before the expiry of the statutory period, he has title to the land in the nature of a fe simple, good against all the world except the true owner, and his title may be conveyed or devised or devolve upon, another person. Needs to be in possession of another's land for 15 years with the requisite factual and mental intention. Where there has been a series of persons in adverse possession by virtue of successive transmissions of the inchoate possessory title for a total period of twenty years or any extended period required by the Act, it will operate to extinguish the true owner's title. The last successor being then in possession will acquire a title in fee simple to the land good against all the world including the true owner. Where there is a series of trespassers, not deriving title from each other, who have been in adverse possession for a continuous period of twenty years or any extended period required by the Act, it will operate to extinguish the true owner's title. Possession by successive trespassers must be continuous to have this effect. An abandonment by one adverse possessor followed by a break in time when the land is not in possession of some person adversely to the true owner will restor the true owner's title to its pristine force. Upon the extinguishment of the true owner's title by successive trespassers (A, B, C & D) who have been in adverse possession continuously for the necessary period, the title in fee simple exists in the first of the successive trespassers, A. D, the final trespasser, who is in possession at the time when the true owner's title is extinguished, would, by virtue of his possession, have a title in fee sim good against all the world except A, B, & C. This would only suffice if A had not abandoned the property, otherwise D may have a title in fee simple good against all the world. The Limitation Act may be stopped from running first, if the true owner asserts their right, or secondly, the possessor acknowledges the true owner has a superior right. An owner may assert their right by instituting an action to recover the land or by making a peaceable but effective entry. S 18. Whittlesea City Council v Abbatangelo: adverse possession succeeds on neighboring land. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess - animus possidendi. George Wimpey v Sohn: enclosure is the strongest possible evidence of adverse possession. The intention required is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land. The determination of what acts of possession are sufficient to show factual possession always depends upon he particular facts and circumstances of the instant case. Ghilarducci v Ghilarducci: permission given by the true owner to the use of the land does prevent the use from constituting adverse possession.
TENURE AND ESTATES Wik Peoples v Queensland: Grant of pastoral leases do not automatically extinguish native title, does not confer rights of exclusive possession on the holder of the lease. Depends on the nature and terms of the lease. Where the rights of the lease are in conflict with native title rights, then the rights under the lease will prevail to the extent of any inconsistency. The granting of a lease does not extinguish any remaining native title rights.
Yanner v Eaton: Aboriginal man hunted and killed two crocs on traditional tribal lands and prosecuted on the basis that he violated the Fauna Conservation Act. Issue was whether the Act extinguished or limited native title to the provisions of the Act. HELD: The Act did not extinguish naïve title: Prohibited hunting or fishing 'other than in accordance with a license, permit or other instrument granted or issued to them under the law' Such wording was not inconsistent where native title exists. Act did not prohiit or restrict the appellant as a native title holder rom hunting or fishing for the purpose of satisfying personal domestic or non-commercia communal needs. Note situations where commercial use is involved - can 'tradition' adapt, evolve or change? What would a court decide in such an instance.
Zapletal v Wright: Married man, separated from wife. Wife did not contribute to purchase of house but the title showed both names registered. Was a gift - she was worried that she was without security should she not have him, so he promised to put her name on the title deed. She assured him that if she were to leave him, she would relinquish her name from the title. Transaction was regarded as a gift, subject to a condition subsequent - the term of the condition being that if she should cease to cohabit with the man (otherwise than by the death of either of the parties) her interest should cease. Gift was given to her to provide inducement for her not to leave him. https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 2 of 3
OneNote Online
2/12/2014 10:14 am
HELD: Condition subsequent void tending to immorality. Condition found to be severed and interest was granted to mistress. Prudential Assurance v London Residuary Body: Three limitations: 1. Starting date of the term 2. The continuance of it 3. The end of it All of these factors should be known with certainty at the beginning of the lease Must be stated with certainty and specifically or is expressed by reference to something which can, at the time when the lease takes effect, be looked to as a certain ascertainment of what the term is meant to be. 'at the end of the war' not sufficient enough as when the tenancy took effect, the term was completely uncertain - impossible to say how long it would have lasted. Argument that at some point it may be ascertained is not a good argument. A grant for an uncertain term does not create a lease. The grant for an uncertain term which takes the form of a yearly tenancy which cannot be determined by the landlord does not create a lease.
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 3 of 3
OneNote Online
2/12/2014 10:15 am
Torrens System Case Bank Monday,(October(14,(2013( 9:27(AM(
TORRENS SYSTEM: THE PRINCIPLE OF INDEFEASIBILITY Real Property Act 1886 (SA), ss 69, 70: 69: Title of registered proprietor indefeasible, except in cases of… 70: in other cases title of registered proprietor shall prevail Gibbs v Messer:
FACTS: Duplicate certificate of title left with C, who forged a transfer of the title to a fictitious person, H, who became the registered proprietor. C then prepared a mortgage from H security for a loan from M to H. This mortgage was registered, and C absconded with the money. Messer then brought an action to be reinstated as the registered proprietor, holding free of M's mortgage. HELD: Messer reinstated, no mortgage NO LONGER GOOD LAW Frazer v Walker:
FACTS: Mrs F borrowed money from R, giving a mortgage as security, by forging husbands signature. She failed to make payments of interest and R exercised power of sale to sell became the registered proprietor and tried to obtain possession of the land. Husband counterclaimed, contending that the mortgage to R was a nullity, seeking cancellation o of the mortgage of R and the interest of W and restoration of F's name to the Register, HELD: See Richards Slides Breskvar v Wall:
FACTS: B, the registered proprietors of land, gave P the duplicate certificate of title and an instrument of transfer signed by them without the name of the transferee. Subsequently, P inserted the name of his grandson, W, as the transferee, and W became the registered proprietor. Before B had discovered the fraud, W had contracted to sell the land to A an executed a transfer. Before this transfer was lodged for registration, B placed a caveat upon the register. HELD: A was a bona fide purchaser in good faith and for valuable consideration, without notice. By reason of fraud, the acquired title was defeasible. Immediate indefeasibility: registration of a void instrument passes title. P 286 of case book gives other examples of void instruments. Mercantile Credits v Shell Co of Australia:
FACTS: The registered proprietors of land (CA) granted a five year lease to the respondent, which was registered and contained a number of consecutive covenants for renewal. The renew was exercised when the original lease expired, and this extension of term was registered. CA then mortgaged the land in favour of the appellant. Before the responden register a further extension of the lease, the appellant gave notice of its intention to exercise its power of sale after default on the mortgage repayments. The respondent then caveat to forbid the registration of any subsequent dealing with the land unless the dealing was stated to be subject to the renewed lease. HELD: Registration of the dealing document confers indefeasibility for the interest created or transferred and on those terms and covenants in the document which delimit or qualify Acardi v Whittem:
FACTS: A, the registered proprietor of land, relied on G for financial advices and assistance. After suggesting that A set up a family trust, G persuaded A to sign two blank pieces of give him the title deeds. Z, a close associate of G, obtained a loan from W by handing over the title deeds and a mortgage seemingly executed by A. Z obtained an additiona days later on the security of a second mortgage given by A. It transpired that A signature on the first mortgage was forged, and that the two signed sheets of paper were used manufacture the second mortgage. HELD: A registered proprietor who is also a bona fide purchaser for value has an indefeasible title notwithstanding that he acquired his title by means of a forged document.
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 1
OneNote Online
2/12/2014 10:19 am
Chapter 1: Concept of Real Property Law Saturday,)August)3,)2013) 11:06)PM)
Torrens System: Title to land is derived from registration - title by registration, not one of registration of title. The only registered interests that can exist are those recognised by the system. System was introduced to simplify land transfer process and make land titles more certain.
Compulsory acquisition of property by the Commonwealth may be authorsed by laws of the Commonwealth Parliament. Under s 51 (xxxi) of the Constitution, the Commonwealth may make laws for the acquisition of property on just terms from any State or person for any purpose for which th Commonwealth has power to make laws. Just terms involve reasonable compensation: Bank of New South Wales v Commonwealth. To leave realty by will is to devise, to leave personalty by will is to bequeath Award of damages if an equitable remedy (specific performance or an injunction) was available even where specific performance or an injunction might be denied (pg. 31-32).
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 1
OneNote Online
2/12/2014 10:19 am
Chapter 16: The Scope and Meaning of Real Property (Pg. 770 - 790) Saturday,)August)3,)2013) 12:24)PM)
Fixtures The Relevant Tests:
The question of ownership may be determined by the express terms of a contract, to which the courts will apply it: Dixon Investment v Woakwine Industries. If not, the general law will apply. The starting point is the maxim: quicquid plantaur solo, solo cedit - whatever is attached to the land forms part of the land: Vopak Terminal Darwin v Natural Fuels Darwin A chattel, when fixed to the land is considered a fixture - however, once detached, it regains its status as a chattel: Commissioner of State Revenue (WA) v TEC Desert Two factors are relevant: The Degree of Annexation: Looks to the manner in which the chattel is attached to the land. Prima facie, if a chattel is attached to the land other than by its own weight (screws or bolts) it is a fixture: May v Ceedive This presumption applies even if the degree of detachment is very slight: Holland v Hodgson The greater the degree of attachment, the stronger the presumption appears to be: Spyer v Phillipson Buckland v Butterfield: A verandah attached to a house was held to be a fixture. If a chattel is only attached by its own weight, prima facie the chattel is not a fixture even if it has become embedded in the soil: Hamp v Bygrave Elwes v Maw: A Dutch barn attached to the land by wooden upright posts inset into the ground was held not to be a fixture. Hulme v Bringham: A printing press attached by its own weight was similarly held not to be a fixture. The Object of Annexation: The courts will examine whether the object was affixed to the land, on the one hand, as a temporary measure or for the purpose of displaying it as a chattel, or o hand, in order to benefit the real estate: Reid v Smith. In the former case, the chattel will be held not to be a fixture even if it is attached to the building other than by its own weight: Westpac Banking Corporat Rabaiov. Metal Manufacturers v Federal Commissioner of Taxation: Various considerations Whether removal would destroy the attached property Whether the cost of removal would exceed the value of the attached property Whether removal would occasion significant damage to the land or buildings to which the property is attached Whether the attachment was for the better enjoyment of the property or for the better enjoyment of the land or buildings to which it was attached The nature of the property itself The contemplated use of the property Period of time for which the property was to be in position Function to be served by the annexation of the property This list is not exhaustive or conclusive. The test is what the reasonable person would consider to be the reason for attaching the object to the land: Hobson v Gorringe. Actual intention is merely one piece of relevant evidence: Emmanuel (Rundle Mall) v CS (SA) Nature of the estate is another relevant factor: the court is less likely to infer an intention to benefit the real estate by a person with only a limited interest in the r as a tenant. Leigh v Taylor: Tenant for life attached valuable tapestries to the wall of the drawing room of a house. Tapestries attached to canvases by tacks, the canvas was nailed to wooden supports and the supports were nailed to the wall. Held that they were not fixtures. Reasoning was the affixing of the tapestries by nails to the wall was the only method by which the tapestries could be effectively displayed as chatte there was no intention to benefit the real estate by attaching the tapestries. Cf Re Starline Furniture: Joinery machines bolted to the cement floor of a factory and wired into the electrical system, which could be detached without causing damage nevertheless held to be fixtures because they were installed and affixed for the better use and enjoyment of the land and premises as a furniture factory. Before a chattel will escape the classification as a fixture under the object of annexation test, if it is attached to the land, it must be shown that the annexation wa necessary': Re De Falbe. It seems that the object of annexation test has assumed far greater significance: Pricewaterhouse Coopers Legal v Perpetual Trustees Victoria Degree test still relevant regarding attachment by own weight. Farley v Hawkins: All circumstances must be considered in deciding whether or not an abject is a fixture, with varying degrees of emphasis upon different factors from case that a common sense perspective must be adopted. National Australia Bank v Blacker: each case turns on its facts and there is no single test which is sufficient to determine the issue; the court must have regard to all the circu the case in making its determination, and no particular factors has primacy. Cases
National Dairies WA v Commissioner of State Revenue: Plant and equipment attached to a dairy business was a fixture and attracted stamp duty. Although it would have been pos time to remove the equipment in question, it had been placed on the land in order to incorporate it into the factory system. The fact that there was no physical annexation of the re equipment to the land was held to be irrelevant in light of the interconnection of the various items in the plant into an interconnected whole. Commissioner of State Revenue v Uniqema: Steam and electricity plant was brought onto the premises by the tenant and bolted to the concrete foundations of the building. Also h features that had a general lack otherwise of permanent attachment to the site which made it possible to be removed. Held not to be a fixture. Park v Lasrado: Large chandelier was not a fixture but a decorative chattel. Macrocom v City West Centre: 4.6 meter satellite dish was held to be a fixture based on its position on the roo, its weight, its method of connection to the building and the fact tha steel support to the floor was necessary prior to its installation. Borg v Cehner: A sewerage pipe running under a footpath and an attached inspection shaft were held to constitute a fixture and thus form part of the freehold of the footpath. Attorney-General v R T Co: Two printing presses were not fixtures even though they were attached to the building by nuts and bolts since the purpose of the annexation was to ho steady so that they could be used properly. Relationships: Vendor and Purchaser of Land
The relevant time for the consideration of the issue of fixtures is the date of the contract of sale: Phillips v Lamdin All fixtures attached to the land at that date pass with the land to the purchaser: Phillips v Lamdin Unless, they are expressly exempted in the contract of sale or unless the court is satisfied that the purchaser brought with notice (whether in writing or orally) that specified not pass with the land: Isaacs v Lord Law of Property Act 1936 (SA) s 16: Specifies that a conveyance of land is deemed to include fixtures - for this reason there need be no express mention of fixtures in the conveya Mortgagor and Mortgagee https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 2
OneNote Online
2/12/2014 10:19 am
All fixtures annexed to land subject to mortgage are automatically included within the scope of the mortgage and form part of the security: Law of Property Act s 7. Applies to both legal and equitable mortgages: Meux v Jacobs The mortgagor has no right to remove any fixtures (in the absence of express agreement to the contrary) installed either before or after the date of the mortgage and cannot take ad exceptions admitted in favour of tenants. Devisee and Personal Representative In the case of a bequest of land, at common law all fixtures pass with the devise and the testator's personal representatives have no right to remove them: Re Whaley Also applies in the case of intestacies: Norton v Dashwood Disputes Involving Third Parties
Despite the maxim nemo dat quod non habet (one cannot give what they do not have) title to chattels may be lost if they are attached to real property by someone other than the ow chattels: Crossley Bros v Lee. If X steals Y's bricks and builds with them upon Z's land, Z not Y becomes the owner of the land. Y's remedies (if any) lie in tort and or contract. Landlords and Tenants
Installation of Fixtures: There is no implied covenant prohibiting a tenant from installing fixtures in the rented premises. A tenant who installs fixtures without the landlord's consent may, in certain circumstances, be in breach of the implied covenant to use the premises in a tenant-like ma Doctrine of waste: A tenant who reduces the value of the rented premises by installing fixtures will have committed voluntary waste and will be liable in damages to the lan Removal of Fixtures: It must not be intended to be a permanent addition to the structure of the premises: Vesco Nominees v Stefan Hair Fashions Chattels annexed by a tenant to the rented premises may become fixtures under ordinary principles and legal title will vest in the landlord. In certain circumstances, the tenant is given a limited right to remove the fixtures he or she has installed. Landlord is treated as the owner of the fixture subject to the tenant's right of removal. Legal title will not revert to the tenant unless and until the tenant actually exercises his or her right of removal and severs the object from the rented premises: Lee. Right to remove only applies to articles brought onto the land and affixed by the tenant or by the tenant's predecessor-in-title: Eye Corp Australia v Goliat Does not extend to fixtures already forming part of the land at the commencement of the tenancy: Cottee Dairy Products v Minad Tenant only entitled to remove certain categories of fixtures - trade, ornamental and domestic fixtures: Vopac Terminal Darwin v Natural Fuels Dar Before a tenant can class a chattel as a tenant's fixture, in addition to proving that it falls within one of the recognised categories, the tenant must also prove that the object w temporarily and was not intended to be a permanent improvement: Spyer v Phillipson Basic common law rule is that the tenant must exercise his or her right of removal prior to the termination of the tenancy agreement (unless provided otherwise in the agreement): Commissioner of State Revenue v TEX Desert A tenant under a fixed-term lease whose agreement has expired by the effluxion (passing) of time (rather than forfeiture or surrender) is allowed a reasonable tim termination of the lease to remove the fixtures: Ex Parte Brook; Re Roberts Similarly, for tenancies with an uncertain duration or where the court considers there has not been a reasonable amount of time: Smith v City Petroleum No extension in the case of surrender (Leschallas v Woolf) or forfeiture: Pugh v Arton It is unclear whether the tenant is permitted at common law to remove trade fixtures if significant damage is caused to the rented premises by the removal: Fisher v Di In such cases, the tenant will be liable to repair the damage caused by the removal pursuant to the doctrine of waste and the implied covenant to use the premise like matter: Mancetter Developments v Garmanson Ornamental and domestic fixtures have been held to be removable only if they can be removed without substantial injury to the premises: Spyer v Phillipson Tenant not allowed to remove agricultural fixtures: Elwes v Maw If the fixture is classed as irremovable according to the two rules above (fails the tests) but the tenant removes the fixture illegally, the landlord may sue the tenant for damages un doctrine of waste: Hitchman v Walton. Anticipatory injunctions may be awarded. Traditionally, a tenant has not been under a legal obligation to remove any of the fixtures installed during the lease: Never-Stop v British Empire Exhibition Cf Wincant v South Australia: Tenant had carried out extensive alterations with the consent of the previous landlord. At the end of the lease, the tenant vacated the premises without r fixtures and reinstating the premises to its original condition. The premises were untenantable in this condition. Damages were awarded for the cost of the reinstatement of the premises. May be an obligation to remove fixtures at the end of a lease if their presence means that the premises are out of repair. On the death of a life tenant, the personal representatives may remove trade, ornamental and domestic fixtures within a reasonable time of the death: Registrar of Tiles v Spencer
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 2 of 2
OneNote Online
2/12/2014 10:26 am
Chapter 16: Scope and Meaning of Real Property Friday,(August(9,(2013( 7:30(PM(
Holland v Hodgson: When the article in question is no further attached to the land than by its own weight, it is generally to be considered a mere chattel. But even in such a case, if the intention is apparent to make the articles part of the land, they od become part of the land. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to show that it is never intended to be part of the land, and then it does not become part of the land. Australian Provincial Assurance v Coroneo: The test if whether a chattel which has been to some extent fixed to land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period, or whether it has been fixed with the intent that it shall remain in the position only for some temporary purpose. In the former case, it is a fixture, whether it has been fixed for the better enjoyment of a land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed. If it is proved to have been fixed merely for a temporary purpose, it is not a fixture. If a thing has been securely fixed, and in particular if it has been so fixed that it cannot be detached without substantial injury to the thing itself or to that to which it is attached, this supplies strong but not necessarily conclusive evidence that a permanent fixing was intended. On the other hand, a fixing that is very slight helps to support an inference that it was not intended to be permanent. Each case depends on its own facts. Reid v Smith: Occasions may arise where a chattel merely resting on its own weight has become a fixture. NH Dunn v LM Ericsson: A court ought to have regard to all the circumstances of the case in making its determination. New Zealand Government Property Corp v HM & S: a tenant should have the right to remove his fixtures so long as he remains in possession of the premises as tenant. Braidwood v Dunn: a statutory monthly tenant holding over after a lease was entitled to remove his fixtures, following the expiry of a notice to quit. Victoria Park Racing and Recreation Grounds v Taylor: Any person is entitled to look over the plaintiff's fences and to see what goes on in the plaintiff's land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Cowell v Rosehill Racecourse: P paid the entrance price and was later forcibly ejected. There are no interests granted. Simply a creation of a contractual obligation - a breach of which entitles the P to contractual damages.
https://onenote.officeapps.live.com/o/onenoteframe.aspx?F…GDbxbG%2b6MXvVz9vKZIC72kBKhIeW4mk%3d8&ad=en-AU&sc=host%3d
Page 1 of 1
