Property

What the unit requires

The topics should provide knowledge of the nature and type of various proprietary interests in chattels and land, and their creation and relative enforceability at law and in equity. Statutory schemes of registration for both general law land and Torrens land should be included. A variety of other topics might be included, eg, fixtures, concurrent interests and more detailed treatment of such matters as sale of land, leases, mortgages, easements, restrictive covenants, etc.

• a Meaning and purposes of the concept of property
• b Possession, seisin and title
• c Nature and type (ie fragmentation) of proprietary interests
• d Creation and enforceability of proprietary interests
• e Legal and equitable remedies
• f Statutory schemes of registration
• g Acquisition and disposal of proprietary interests
• h Concurrent ownership
• i Proprietary interests in land owned by another
• j Mortgages,

Topics and descriptor are the instrument's own words, transcribed in curriculum-spine-data.ts. UAR Sch 1 cl 2 states that the topics need not all be taught in a single subject, so the mapping from units to topics is many-to-many.

The ideas that decide the mark

• Property is a bundle of rights, and the bundle can be split

  Ownership is not a single thing. Possession, use, the right to exclude, and the right to transfer can be held by different people at once, and equitable interests can exist alongside legal ones. Most property questions are about which stick, and who holds it.

  The usual error: Asking "who owns it?" when the real question is "who holds which interest, and is it legal or equitable?"

• Possession is a title good against everyone but the true owner

  A possessor has enforceable rights even without ownership, and those rights are relative: they defeat later possessors and strangers, but not the person with a better title. This is why finders and trespassers can sue.

  The usual error: Treating possession as evidence of ownership rather than as a title in its own right, which loses the whole relativity analysis.

• Torrens indefeasibility is immediate, but the exceptions carry the marks

  Registration confers indefeasibility on the registered proprietor, subject to statutory exceptions: fraud, prior interests noted on the register, short-term tenancies, and the in personam claims. The exceptions, not the general rule, are where the difficulty lies.

  The usual error: Stating indefeasibility and stopping, which ignores that fraud and in personam claims routinely defeat a registered proprietor.

• Whether something is a fixture turns on annexation and purpose

  Two questions: how firmly is the object attached, and what was the object of the annexation? An object resting by gravity may still be a fixture if the purpose was permanent improvement, and a firmly fixed object may not be if the purpose was temporary.

  The usual error: Deciding fixtures by who paid for the item or what the contract says, when the test is physical and purposive.

• Lease or licence turns on exclusive possession, not the label

  The parties cannot convert a lease into a licence by calling it one. If the occupier has exclusive possession for a term, at a rent, it is a lease, with the statutory protections that follow. Retention of a key or a right of entry is evidence, not a conclusion.

  The usual error: Accepting the document's label, which is precisely the error the substance test exists to prevent.

How it is assessed

• Problem questions with competing interests over one parcel: a registered proprietor, an unregistered interest, and a fraud or in personam claim.
• Priority disputes requiring the Torrens ordering rules, caveats, and the exceptions to indefeasibility to be applied in sequence.
• Short questions on doctrine: fixtures, co-ownership and severance, lease versus licence, and the nature of native title.

Whether the unit covers native title in depth, and whether it is taught on Torrens alone or with general law land, varies by institution and is not recorded here.

The authorities

Each was resolved against the corpus. Where a paragraph could be verified it is given; where it could not, the case is cited without one rather than with an invented paragraph.

• Mabo v Queensland (No 2) (1992) 175 CLR 1AustLII paragraph

  Native title as a title recognised by the common law, and the rejection of terra nullius. Held in full but not locatable by paragraph.

  Find it at (1992) 175 CLR 1, AustLII [2] (Mason CJ and McHugh J) — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

• Wik Peoples v Queensland (1996) 187 CLR 1AustLII paragraph

  Coexistence of native title with pastoral leases, and the limits of exclusive possession.

  Find it at (1996) 187 CLR 1, AustLII [8] — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

• Bahr v Nicolay (No 2) (1988) 164 CLR 604AustLII paragraph

  In personam claims and the circumstances in which a registered proprietor remains bound.

  Find it at (1988) 164 CLR 604, AustLII [48] (Wilson and Toohey JJ) — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

• Corin v Patton (1990) 169 CLR 540AustLII paragraph

  Assignment of equitable interests, and what is required to complete a gift.

  Find it at (1990) 169 CLR 540, AustLII [4] (Toohey J) — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

• Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407AustLII paragraph

  The scope of the exceptions to indefeasibility in a priority contest.

  Find it at (1992) 174 CLR 407, AustLII [15] (Mason CJ, Dawson and McHugh JJ) — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

Boundaries

Authorities whose existence is established but whose text this corpus cannot hold. They are citable; the reason they cannot be pinpointed is stated.

• Breskvar v Wall (1971) 126 CLR 376Digitisation gap

  Immediate indefeasibility, and the fraud exception as the limit on it.

  CLR 126 (1971) is inside the undigitised 1960-1997 band

  CLR 126 (1971) is inside the undigitised 1960-1997 band

• Radaich v Smith (1959) 101 CLR 209Digitisation gap

  The substance test for lease versus licence, and why exclusive possession decides it.

  CLR 101 (1959) falls just outside the Court's CLR 1-100 section, and no 1960-1997 section exists

  CLR 101 (1959) falls just outside the Court's CLR 1-100 section, and no 1960-1997 section exists

• Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700External source

  The annexation and purpose tests for fixtures, still the working statement.

  NSW Law Reports preview of the report (Coroneo at 712, Jordan CJ); principle restated in Agripower Barraba v Blomfield [2013] NSWSC 1598 at [30]

  Verified against: NSW Law Reports preview of the report (Coroneo at 712, Jordan CJ); principle restated in Agripower Barraba v Blomfield [2013] NSWSC 1598 at [30]

The method

1. Draw the interests as a timeline before writing anything: who acquired what, when, and was it legal or equitable. Most property errors are ordering errors.
2. Identify the system first — Torrens or general law — because the priority rules differ and applying the wrong set is fatal.
3. For Torrens, establish registration, then work through the exceptions in order, giving each its own paragraph and its own conclusion.
4. For competing equitable interests, apply the ordering rule and then test it against the exceptions, particularly the bona fide purchaser without notice.
5. End with the remedy: who can recover the land, who has a personal claim for compensation, and whether the assurance fund is available.

What loses marks

• Asking "who owns it" instead of "who holds which interest"

  Property questions are about competing interests, and a single-owner framing cannot express the answer.

• Applying general law priority rules to Torrens land

  Registration, not notice, governs, and the two systems produce opposite results on the same facts.

• Treating knowledge of a prior interest as fraud

  Torrens fraud requires dishonesty. Mere knowledge is the general rule, not the exception.

• Deciding fixtures by the contract or by who paid

  The test is annexation and purpose. Contract may allocate the risk, but it does not decide whether the item is a fixture.

• Accepting a document's label that it is a licence

  Exclusive possession for a term makes it a lease whatever the label, and the label's author is usually trying to avoid the statutory protections.