! 7 (II) DEFINITION OF LAND & DOCTRINE OF FIXTURES ...

(1) INTRODUCTION TO REAL PROPERTY

(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS........................! 7.................................................................................(1) What is property?! 8....................................................................................................(a) Definitions of Property! 8

‣ *King v David Allen & Sons Billposting Ltd [1916] 2 AC 54‣ Yanner v Eaton (1999) 201 CLR 351

........................(2) The Essential Characteristics of Property Rights! 11..................................................................................................................(a) Enforceability! 11

Difference between contractual and proprietary rights (see King v David Allen above)

.........................................................................................(b) The Existence of Some Thing! 11....................................................................................(c) Other Essential Characteristics! 12

.............(d) Requirements for creation or transfer of a (particular) proprietary right! 12.................................................(3) Things Subject to Property Rights! 13

..................................................................................................................(a) Human Tissue! 15............................................................................(i) Property Rights to Living Things! 15

Jolly v Pelletier [1999] OJ No 1728

...............................................................(ii) Property Rights to Dead Human Tissue! 15‣ *Doodeward v Spence (1908) 6 CLR 406

...........................................................(iii) Property Rights to Living Human Tissue! 17Regenerating TissuesNon-regenerating TissuesGametes and Embryos

‣ Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37‣ *Re Estate of Edwards [2011] NSWSC 478‣ Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207

......................................................(4) Non-Possessory Rights to Land! 20.............................................................................................................(a) Profits À Prendre! 20

........................................................................................................................(b) Easements! 20...............................................................................................(5) Licences! 22

(II) DEFINITION OF LAND & DOCTRINE OF FIXTURES ........................! 23.....................................................................................................(1) Land! 23

....................................................................................................(a) Accretion and Erosion! 23.................................................................................(b) Total destruction of the Premises! 23

............................................................................(2) Doctrine of fixtures! 25.........................................................(a) Degree of Annexation & Object of Annexation! 29

...............(i) Degree/mode of Annexation - extent to which it is attached to land! 29...............................................................................(ii) Object/purpose of Annexation! 30

‣ *Palumberi v Palumberi (1986) NSW ConvR 55-287‣ NH Dunn Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241

Table of Contents! 2

‣ Re Cancer Care Institute of Australia Pty Ltd (admin apptd) (2013) NSWSC 37‣ Standard Portland Cement Co v Good (1982) 47 ALR 107‣ *Leigh v Taylor [1902] AC 157‣May v Ceedive Pty Ltd (2006) 13 BPR 24,147; [2006] NSWCA 369

Onus of Proof

.............................................................................................................(b) Tenant’s Fixtures! 35✦Residential Tenancies Act 2010 (NSW)

- Section 67 - Removal of fixtures installed by tenant- Section 68 - Tenants’ remedies for alterations

..................................................................(i) Tenant’s Fixture or Permanent Fixture?! 35‣ *D'Eyncourt v Gregory (1866) LR 3 Eq 382‣ Spyer v Phillipson [1931] 2 Ch 183‣Webb v Frank Bevis [1940] 1 All ER 247

..................................................................................(ii) Removal of Tenant’s Fixtures! 37

(III) TENURES, ESTATES AND NATIVE TITLE .........................................! 38..................................................................................................(1) Tenure! 38

.........................................................................................................................(a) Feudalism! 38...........................................................................(b) Evolution from tenure to ownership! 38..........................................................................(c) Nature of the Crown’s Right to Land! 39

‣ *Mabo v Queensland (No 2) (1992) 175 CLR 1

..........................................................................................(2) Native title! 42.....................................................................................................................(a) Mabo (No.2)! 42

‣ *Mabo v Queensland (No 2) (1992) 175 CLR 1‣Wik Peoples v Queensland (1996) 187 CLR 1

......................................................................................................(b) Proof of Native Title! 46Native Title Today

..................................................................................................(3) Estates! 48..............................................................................................................(a) Freehold Estates! 48

....................................................................................................................(i) Fee Simple! 49........................................................................................................................(ii) Fee Tail! 49

..................................................................................................................(iii) Life Estate! 50...........................................................................................................(b) Leasehold Estates! 50

.........................................................(i) Relationship between Landlord and Tenant! 50Leasehold Covenants

✦Residential Tenancies Act 2010 (NSW)- Section 63 - Landlord’s general obligation

✦Conveyancing Act 1919 (NSW)- Section 85 - Powers in lessor

Privity of Estate

......................................................................................................................(ii) Duration! 54Fixed TermPeriodic tenancyAt WillCombinations & Options

...................................................................................................................(c) Other Estates! 55


............................................................................................................(i) Perpetual lease! 55....................................................................................................................(ii) Strata title! 55..................................................................................................................(d) Shared Rights! 56

................................................................................................................(i) Joint tenancy! 56.................................................................................................(ii) Tenancy in Common! 57

........................................................................................................................(e) Possession! 57................................................................................................................(f) Future Interests! 57

............................................................................................(i) Contingent Remainders! 58........................................................................................(ii) Rule Against Perpetuities! 58

✦Perpetuities Act 1984 (NSW)- Section 7 - The perpetuity period

...........................................................................................................................(iii) Waste! 58

(1.2) REAL PROPERTY

(I) LEGAL & EQUITABLE INTERESTS IN LAND (CONCEPTUAL DIFFERENCE ............................................................................................)! 60

.....................................................................(1) Conceptual Difference! 60✦Law Reform (Law and Equity) Act 1972

- Section 5 - Rules of equity to prevail

(2) Legal & Equitable interests in Land: Formalities for Creating/..............................................................Transferring Interests in Land! 62

✦Conveyancing Act 1919 (NSW)- Section 14 The immediate freehold of land to lie in grant as well as in livery- Section 23E - Savings in regard to secs 23B, 23C, 23D

(II) CREATION OF LEGAL INTERESTS ....................................................! 63...........................................................................(a) Must use a deed (Old Systems Title)! 63

✦Conveyancing Act 1919 (NSW)- Section 23B - Assurances of land to be by deed- 38 Signature and attestation

(b) Creation of legal interests (including lease) without deed, only if it comes within ..................................................................................................................................s 23D(2)! 64

- Section 23D - Creation of interests in land by parol

(III) CREATION OF EQUITABLE INTERESTS...........................................! 65.................(1) Purported Immediate Transfer of Equitable Interest! 65

(a) Person with legal interest in Old system land can transfer equitable interest in ..........................................that land with a ‘written instrument signed by the person’! 65

✦Conveyancing Act 1919 (NSW)- Section 23C - Instruments required to be in writing- Section 23E - Savings in regard to secs 23B, 23C, 23D

...........................(2) Contracts Creating Equitable Interests in land! 66...................................................................................(a) Contracts to transfer fee simple! 66


‣ *Lysaght v Edwards (1876) 2 Ch D 499

............................................................................(b) Contracts to grant (equitable) lease! 68‣ *Walsh v Lonsdale (1882) 21 Ch D 9‣ Chan v Cresdon (1989) 89 ALR 522

Other Property RightsOptions to Purchase

.......................................................................(3) Enforceable Contracts! 70(a) When will (written) contracts to create/transfer interest in land or grant lease be

...........................................................................................................................enforceable?! 70✦Conveyancing Act 1919 (NSW)

- Section 54A - Contracts for sale etc of land to be in writing

................................................(b) When will oral/unwritten contracts be enforceable?! 71...................................................................................(i) Doctrine of Part performance! 71

✦Conveyancing Act 1919 (NSW)- Section 54A - Contracts for sale etc of land to be in writing

‣Maddison v Alderson (1883) 8 App Cas 467‣McBride v Sandland (1918) 25 CLR 69‣ Regent v Millett (1976) 133 CLR 679‣ *Cooney v Burns (1922) 30 CLR 216‣Mason v Clarke [1955] AC 778‣ Lighting by Design (Australia Pty Ltd v Cannington Nominees Pty Ltd [2008] 35 WAR 520

...................................................................................................(ii)Equitable Mortgage! 77✦Conveyancing Act 1919 (NSW)

- Section 23C - Instruments required to be in writing✦Conveyancing Act 1919 (NSW)

- Section 54A - Contracts for sale etc of land to be in writing- Section 23E - Savings in regard to secs 23B, 23C, 23D- Section 54A - Contracts for sale etc of land to be in writing

‣ *Theodore v Mistford Pty Ltd [2005] HCA 45; 221 CLR 612‣ Ciaglia v Ciaglia (2010) 14 BPR 27,479; [2010] NSWSC 341

................................................................................(3) Equitable Rights! 83................................................................................................................................(a) Trusts! 83

.........................................................................................................................(i) Trustees! 83...............................................................................................................(ii)) Trust Assets! 84

............................................................................................................(iii)) Trust Objects! 84..............................................................................................................(iv) Trust Powers! 84

...........................................................................................(v) Powers of Appointment! 85..............................................................................................(vi) Beneficial Ownership! 85

(III) OLD SYSTEM TITLE (DEEDS REGISTRATION SYSTEM ................)! 87.............................................................................................................................(a) General! 87

.................................................................................................(b) What can be registered?! 87..................................................................................(i) General Registration Systems! 87.................................................................................(ii) Specific Registration Systems! 88

.....................................................................................................(c) Effect of Registration! 88✦Conveyancing Act 1919 (NSW)


- Section 184G - Instruments affecting land to take effect according to priority of registration

.....................................................................................................(d) Old system mortgage! 89✦Conveyancing Act 1919 (NSW)

- Section 109 - Powers of mortgagees and certain chargees

(IV) TORRENS TITLE...............................................................................! 91.............................................................................................................................(a) General! 91

Goals of the Torrens SystemRights Created by Registration

.....................................................................................................(b) Effect of Registration! 92✦ *Real Property Act 1900 (NSW)

- Section 41 - Dealings not effectual until recorded in Register‣ Barry v Heider (1914) 19 CLR 197

.......................................................................................(i) Principle of indefeasibility! 93✦ *Real Property Act 1900 (NSW)

- Section 42 - Estate of registered proprietor paramount‣ Frazer v Walker [1967] 1 AC 569; Privy Council - New Zealand‣ *Breskvar v Wall (1971) 126 CLR 376

Priority Over Unregistered Rights- Section 43 - Purchaser from registered proprietor not to be affected by notice

..........................................................................................(b) Creation of Property Rights! 95.......................................................................................(i) Registered Property Rights! 95

Bringing Land into the SystemFolios and Certificates of Title

..................................................................................(ii) Torrens title (legal) mortgage! 96✦ *Real Property Act 1900 (NSW)

- Section 41 - Dealings not effectual until recorded in Register- Section 57 Procedure on default- Section 60 - In case of default, entry and possession, ejectment


(1) Introduction to real property(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS

OVERVIEWWHAT IS PROPERTY?‣ *King v David Allen & Sons Billposting Ltd [1916] 2 AC 54 [contractual v proprietary rights]

o Personal rights could only be enforced against parties to the contract. Real (proprietary) rights have a greater scope of enforceability and can be enforced against the world.

‣ Property rights are created when a person intends to create that right and takes all the steps necessary to give effect to that intention. The intention and the action combine to bring the property right into existence.

‣ [In order for a right to be proprietary it must fit into the limited number of pigeon hole rights which make up proprietary rights.]

o A licence does not confer a sufficient plenitude of rights over the land to qualify as a proprietary right. Only proprietary rights are enforceable against third parties.

‣ Yanner v Eaton (1999) 201 CLR 351 [Property: the right to use or enjoy]o ‘Property’ does not refer to a thing; it is a description of a legal relationship with a thing. The

concept of ‘property’ may be elusive. Usually it is treated as a bundle of rights. It refers to a degree or power that is recognised in law as power permissibly exercised over the thing...Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources

o ‘Property’ is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not ‘a monolithic notion of standard content and invariable intensity”.

o Because ‘property’ is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B?

(1) Introduction to Property & Real Property! 7(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: WHAT IS PROPERTY? (OVERVIEW)

(1) WHAT IS PROPERTY?

• Property is a right, not a thing• Because it is a right, property is a relationship between people.

Property law is the law relating to things and property rights are the legal rights that entitle people to make use of things.

• When dealing with property rights, there are three basic questions which should be asked and answered:

(1) What sort of right is it, (2) How was it created; and(3) What priority does it have.

• A property right must relate to something which is only contingently connected to the right holder.o Property law excludes those things which are intrinsic to the person and requires that a

distinction be drawn between the person and the thing.

(a) Definitions of Property• ‘Property’ - understood in legal terms as the rights which people have to things rather than the things

themselves.Assignable Rights• Any right that can be transferred from one position to another. When defined in this way, property

includes everything that might be regarded as wealth or which an accountant might list as an asset on a balance sheet.

o E.g. When someone dies, most of his/her rights form the estate which gets transferred to the executor and then distributed according to law.

• Excluded are personal rights, which in this context are those rights which can be used only by the particular person who holds them.

o E.g. Right to vote in a general election cannot be sold or given away - it is regarded as a personal right.

Rights in Rem - Distinction between rights in rem and rights in personam• The distinction between personal rights and property rights is based on their enforceability. It

corresponds to the distinction between rights in personam (person) and rights in rem (thing).• Rights ‘in personam’ are so called because they are enforced against particular persons, without much

regard to the things they might have.o E.g. If A borrows $20 from B and promises to repay it, A owes B $20. B does not expect to get

the same $20 not back. Instead, A has a personal obligation to pay which corresponds to B’s personal right to be paid $20. This is a right in personam which can be enforced against A, regardless of what has become of the $20 note A borrowed. If A gives that note to a friend or spends it at a shop, B does not acquire any rights against A’s friend or the shopkeeper. B has no right to that note nor to any other $20 note A may have.

• Rights ‘in rem’ are rights people have concerning particular things, without much regard to the people against whom those rights might be enforced. Property law is primarily about rights in rem.

‣ E.g.: If A borrows B’s book and promises to return it, B continues to own the book. In addition to A’s promise B has a right in rem which is enforceable against A because A has B’s book. The property right follows the book, and if A gives B’s book to a friend, B can assert his/her right in rem against A’s friend, because he or she has B’s book.

o A right in rem depends upon the continued existence of the thing to which the right relates.‣ E.g. If B’s book is destroyed, B’s property right is gone. The destruction may give B a

right in personam against the person who destroyed B’s book, but it brings to an end B’s right in rem to the book.

(1) Introduction to Property & Real Property! 8(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: WHAT IS PROPERTY?

Contractual v Proprietary rights‣ *King v David Allen & Sons Billposting Ltd [1916] 2 AC 54• Personal rights could only be enforced against parties to the contract. Real (proprietary) rights have

a greater scope of enforceability and can be enforced against the world.o Property rights are created when a person intends to create that right and takes all the steps

necessary to give effect to that intention. The intention and the action combine to bring the property right into existence.

o [In order for a right to be proprietary it must fit into the limited number of pigeon hole rights which make up proprietary rights.]

• A licence does not confer a sufficient plenitude of rights over the land to qualify as a proprietary right. Only proprietary rights are enforceable against third parties [a licence is a mere permission to do something which would otherwise be unlawful).

[FACTS: The defendant (licensor) granted a licence to the plaintiffs (licensees) to post bills on the wall of a theatre to be built on the defendant’s land. The defendant leased that land to a company and the theatre was built. The defendant was a director of the company and had assumed that it would honour his contract with the plaintiff. However, the company refused to let the plaintiff post bills on the wall. The company could not be compelled to allow this, since it had a property right to possess the land and the plaintiff had only a personal right to post bills. Therefore, the plaintiff’s only remedy was to sue the defendant for damages for breach of contract.]Held:• The agreement did not create an interest in land, but created merely a personal obligation on the part

of the licensor to allow the licensees the use of the wall for advertisements.o David Allen only had a personal right, which could not be enforced against the company.

LORD BUCKMASTER LC• The matter then is left in this way. There is a contract between the appellant and the respondents

which creates nothing but a personal obligation. It is a licence given for good and valuable consideration and to endure for certain time. But I fail to see...that there is any authority for saying that any such document creates rights other than those I have described....I find it difficult to see how it can be reasonably urged that anything beyond personal rights was ever contemplated by the parties.

o Those rights have undoubtedly been taken away by the action on the part of the company, who have been enabled to prevent the respondents from exercising their rights owing to the lease granted by Mr King.

EARL LOREBURN• The document itself...does not create any interest in land at all; it merely amounts to a promise on the

part of Mr King that he would allow the other party to the contract to use the wall for advertising purposes...

• Those to whom he granted the lease have disregarded his (Mr King’s) wishes and refused to allow his bargain to be carried out, and they have been practically enabled to do so by the reason of the demise that he executed.

Appeal Dismissed

Property: the right to use or enjoy:‣ Yanner v Eaton (1999) 201 CLR 351• ‘Property’ does not refer to a thing; it is a description of a legal relationship with a thing. The concept

of ‘property’ may be elusive. Usually it is treated as a bundle of rights. It refers to a degree or power that is recognised in law as power permissibly exercised over the thing...Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources

• ‘Property’ is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not ‘a monolithic notion of standard content and invariable intensity”.

• Because "property" is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B? The statement that A has


property in B will usually provoke further questions of classification. Is the interest real or personal? Is the item tangible or intangible? Is the interest legal or equitable?

[FACTS: Yanner, an Aboriginal man, used a traditional harpoon to hunt crocodiles. The crocodiles were killed, and Yanner shared the meat with other members of his Gunnamulla clan. Yanner was was charged with taking a crocodile without a licence contrary the Queensland Fauna Conservation Act 1974 (“Fauna Act”). Under the Native Title Act 1993 (Cth), Yanner would not have been guilty of the offence if he were exercising native title rights. Eaton, the police officer who laid the charge (and the Commonwealth and various states intervening in the action), argued that any native title rights Yanner would otherwise have had been extinguished by s 7(1) of the Fauna Act, which provided that “all fauna ... is property of the Crown.”


(2) THE ESSENTIAL CHARACTERISTICS OF PROPERTY RIGHTS• A property right can be identified as a right to a thing, which corresponds to a general duty placed on other

members of society not to interfere with that right.

• Two essential characteristics:o A property right can be enforced not just against specific persons, but against a wide range of

persons.o A property right always relates to, and depends upon the existence of, some particular thing.

(a) Enforceability• Property rights, like all legal rights, are enforced against persons. However, unlike personal rights,

there are no specific persons responsible for their fulfilment.• Wesley Hohfeld: The difference between rights in rem and rights in personam is simply the number of

rights involved.o A personal right is either a unique right enforceable against ‘a single person’ or one of a small

group of similar rights enforceable against ‘a few definite persons’.o Property rights consist of ‘a large class of fundamentally similar yet separate rights, which

correspond to the obligations of ‘a very large and indefinite class of people.‣ E.g. Suppose A made a contract with B that B would keep off C’s land. What is the

difference between A’s contractual, personal right against B and C’s property right against B? Both rights have the same content. The only real difference is that A only has one right of that kind, whereas C has a large number of similar rights which are enforceable against an indefinite class of people (including B).

Difference between contractual and proprietary rights (see King v David Allen above)Contractual Rights• Sphere of enforceability (by whom against whom?) - who can enforce the right.

o Parties to the contract can enforce the right (i.e. Between promissee and promisor).o Doctrine of privity limits who can enforce contractual rights.o Personal rights - rights in personam.

• Potential content of the right - what rights make up contractual rights?o Content governed by the terms of the agreement. An infinite possible array of contractual

rights - parties determine what they’re agreeing to.Property Rights• Sphere of enforceabitliy.

o Owner can enforce the right against the whole world.o Rights in rem - rights that exist in respect with respect to a thing.

• Potential Contento The prima facie position is that the law only recognises a set number and type of property

rights.o Since property rights are enforceable against all the world, would be impractical and

unreasonable to force people to comply with novel property rights.

(b) The Existence of Some Thing• Property rights must relate to things which are separate and apart from ourselves.

o ‘Thing’ is a term of art which restricts the application of property to those items in the world which are contingently related to us, and this contingency will change given the surrounding circumstances, including our personal, cultural or technological circumstances (James Penner).

• Things which are intrinsically connected to us, such as our bodies and reputations, cannot be subject to property rights.

(1) Introduction to Property & Real Property! 11(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: CHARACTERISTICS OF PROPERTY RIGHTS

o Unless the intrinsic connection is broken, they cannot be subject to property rights.

(c) Other Essential Characteristics• Alienability: It is sometimes said that property rights are alienable, meaning that they can be sold or

given away to others.o All property rights can be described as ‘alienable’ if that term is understood to mean

‘disposable’ rather than ‘transferable’. Since property rights must relate to some thing which is only contingently connected to the right holder, it must be possible for that person to alienate the thing in the sense of severing her or his connection to it. However, that connection can be severed without transferring the right to another.

• Excludability: The holder of a property right is able to exclude others from making use of the thing subject to that right.

• Right to use and enjoy.• Value: Most, but not all, property rights usually have some market value.

(d) Requirements for creation or transfer of a (particular) proprietary right• Property rights are created when a person intends to create that right and takes all the necessary steps to give

effect to that intention. The intention and the action combine to bring the property right into existence.Essential/Substantive requirements• Have the substantial requirements been met? Ie.`What package of rights has the grantor/transferor intended

to create in the grantee/transferee? Eg:o fee simple [exclusive possession “forever”] o life estate [exclusive possession for duration of measuring life];o lease [exclusive possession for certain term]; o easement [right, accommodating dominant land to use, or restrain use of, servient land in a

manner not inconsistent with servient owner’s continuing ownership] o chattel ownership [exclusive possession “forever”] o bailment of chattel [delivery of exclusive possession with an obligation to redeliver]

Formal requirements • Have the formal requirements been met? How must that intention be manifested? eg, must a document be

used; if so, what type; is a particular form of words required?

(1) Introduction to Property & Real Property! 12(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: CHARACTERISTICS OF PROPERTY RIGHTS

(3) THINGS SUBJECT TO PROPERTY RIGHTSA property right must relate to something which is only contingently connected to the right holder. Property law

excludes those things which are intrinsic to the person and requires that a distinction be drawn between the person and the thing.

OVERVIEW - HUMAN TISSUEPROPERTY RIGHTS TO DEAD HUMAN TISSUEA right to possession of a body, which is enforceable generally against other members of society looks and behaves exactly like property. However, courts have been reluctant to say that a human corpse is a thing capable of being subject to property rights.

‣ R v Kelly [1998] 3 All ER 741o We accept that, however questionable the historical origins of the principle, it has now been

the common law for 150 years at least that neither a corpse nor parts of a corpse are in themselves and without more capable of being property protected by rights. …

o [But] parts of a corpse are capable of being property...if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes …

o Furthermore, the common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property...even without the acquisition of different attributes, if they have a use or significance beyond their mere existence.”

‣ Jones v Dodd (1999) 73 SASR 328o [SASC was asked to decide whether the father or the former de facto spouse of a deceased person was entitled to his

body for the purpose of burial]o There is no property in a dead body, that is to say, it is incapable of being owned by anyone...[however]

in certain circumstances the law would protect lawful possession of a corpse or body parts.o The issue was ‘who has the right to possession of the body for the purpose of burial.

‣ Re Gray [2001] 2 Qd R 35o The principle clearly established, that the deceased’s personal representative or, where there is non, the

parents or spouse, have a right to possession of the body only for the purposes of ensuring prompt and decent disposal has, I think, the corollary that there is a duty not to interfere with the body.

‣ Pierce v Proprietors of Swan Point Cemetery 14 Am Rep 667 (1827)o Although...the body is not property in the usually recognized sense of the word, yet we may

consider it as a sort of quasi property, to which certain persons may have rights, as they have duties to perform toward it, arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever; he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it, and we think that a court of equity may well regulate it as such, and change the custody if improperly managed.

• Thus: The right to possess something for a limited time or for a limited purposes is not ownership, but it is nevertheless a property right -

‣ *Doodeward v Spence (1908) 6 CLR 406o ... a human body, or a portion of a human body, is capable by law becoming the subject of property. It is

not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the circumstances.”

PROPERTY RIGHTS TO LIVING HUMAN TISSUE

‣ Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37o It would not be right for the common law in this area to be founded upon the principle in the

Australian case of Doodeward v Spence that a body part could be owned if it had been subjected to work or skill that conferred on it a different attribute, Doodeward considered. That principle

(1) Introduction to Property & Real Property! 13(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: THINGS SUBJECT TO PROPERTY RIGHTS (OVERVIEW)

had been devised as an exception to a principle, itself of exceptional character, that a human corpse was incapable of being owned... Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical...we prefer to rest our conclusions on a broader basis. In our judgment, for the purposes of their claims in negligence, the men had ownership of the sperm which they ejaculated.

‣ *Re Estate of Edwards [2011] NSWSC 478 [Contrast with Yearworth]o Work and skill was applied to the preservation and storage of sperm taken from the deceased.

Accordingly, on the authority of Doodeward v Spence (1908) 6 CLR 406 , the sperm was capable of being regarded as property. However on the same authority, the deceased did not have property in his semen when alive and so it did not form an asset of his estate.

o Yearworth v North Bristol NHS Trust involved a distinction with the present case in that the property right asserted was that of living men, or, in one case the administrator of the estate of a man, who had each freely donated sperm for a specific purpose (potential use to conceive a child by assisted reproductive treatment if they were rendered infertile).

‣ Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207o The straws of semen currently stored with the respondent are property, the ownership of which

vested in the deceased while alive and in his personal representatives after his death.‣ “The relationship between the [Clinic] and [Mr Bazley was one of bailor and bailee for

reward because, so long as the fee was paid, and contact maintained, the [Clinic] agreed to store the [sperm]. The arrangement could also come to an end when [Mr Bazley] died without leaving a written directive about the semen, but plainly the bailor, or his personal representatives, maintained ownership of the straws of semen and could request the return of his property.

o Court considered reasoning in the above cases (Doodward v Spence; Yaerworth v North BristolAmerican Cases‣ Moore v Regents of the University of California 793 P 2d 479 (Cal 1990)

o [The dfts had removed tissue from the ptf and used it to develop and patent a valuable cell line. The removal was necessary for the treatment of the ptf’s leukaemia and had been done with his consent. However, he did not know about or consent to the use of his tissue for medical research.]

o People did not have a right to possession of tissues removed from their bodies.o The majority of the court decided that the dfts could not be held liable to the ptf for conversion of that

tissue - the ptf did not have a sufficient property right to the tissue removed from his body to support a claim for conversion of that tissue.

NB: Other American cases have not followed Moore:‣ United States v Arora 860 F Supp 1091 (US DC Maryland 1994)

o The dft tampered with and destroyed living human cells being used as part of a research project. He was found guilty of conversion of those cells, which were subject to the ptf’s property rights.

(1) Introduction to Property & Real Property! 14(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: THINGS SUBJECT TO PROPERTY RIGHTS (OVERVIEW)

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(a) Human Tissue(i) Property Rights to Living Things‣ Jolly v Pelletier [1999] OJ No 1728

o [The ptf claimed to be from Mars and sued several dfts, alleging that they had conspired to conceal his Martian origins. The dfts applied to strike out his claim on the basis that, even if the allegations were true, there was no cause of action against them. Since (as alleged) the ptf was not human and not a corporation, the judge ruled he was not a person and did not have the right to sue.]

o The status of being a person and the capacity to hold rights are legal concepts. Companies and other corporations are persons with legal rights. Animals (and extraterrestrials) do not have that status.

o Persons have rights and things are subject to rights.

(ii) Property Rights to Dead Human Tissue• A right to possession of a body, which is enforceable generally against other members of society looks and behaves

exactly like property. However, courts have been reluctant to say that a human corpse is a thing capable of being subject to property rights.

‣ R v Kelly [1998] 3 All ER 741o We accept that, however questionable the historical origins of the principle, it has now been

the common law for 150 years at least that neither a corpse nor parts of a corpse are in themselves and without more capable of being property protected by rights. …

o [But] parts of a corpse are capable of being property...if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes …

o Furthermore, the common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property...even without the acquisition of different attributes, if they have a use or significance beyond their mere existence.”

‣ Jones v Dodd (1999) 73 SASR 328o [SASC was asked to decide whether the father or the former de facto spouse of a deceased person was entitled to his

body for the purpose of burial]o There is no property in a dead body, that is to say, it is incapable of being owned by anyone...[however]

in certain circumstances the law would protect lawful possession of a corpse or body parts.o The issue was ‘who has the right to possession of the body for the purpose of burial.

‣ Re Gray [2001] 2 Qd R 35o The principle clearly established, that the deceased’s personal representative or, where there is non, the

parents or spouse, have a right to possession of the body only for the purposes of ensuring prompt and decent disposal has, I think, the corollary that there is a duty not to interfere with the body.

‣ Pierce v Proprietors of Swan Point Cemetery 14 Am Rep 667 (1827)o Although...the body is not property in the usually recognized sense of the word, yet we may

consider it as a sort of quasi property, to which certain persons may have rights, as they have duties to perform toward it, arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever; he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it, and we think that a court of equity may well regulate it as such, and change the custody if improperly managed.

• Thus: The right to possess something for a limited time or for a limited purposes is not ownership, but it is nevertheless a property right -

‣ *Doodeward v Spence (1908) 6 CLR 406• A dead human body may under some circumstances become the subject of property rights. A corpse may

possess such peculiar attributes as to justify its preservation on scientific or other grounds, and, if a person has by the lawful exercise of work or skill so dealt with such a body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, and if deprived of its possession, may maintain an action for its recovery as

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against any person not entitled to have it delivered to him for the purpose of burial, subject to any positive law forbidding its retention under the particular circumstances. Although the public exhibition of such a body may be a misdemeanour as being indecent and injurious to the public welfare, the mere retention of it unburied is not necessarily unlawful.

• A human body awaiting burial cannot be the subject of larceny, since the ownership could not be laid in any one. An unburied corpse awaiting burial is nullius in rebus (owned by no one). But it does not follow from the fact that an object is at one time nullius in rebus that it is incapable of becoming the subject of ownership...it does not follow from the mere fact that a human body at death is not the subject of ownership that it is forever incapable of having an owner. If that is the law, it must have some other foundation. After burial a corpse forms part of the land in which it is buried and the right of possession goes with the land.

[FACTS: The appellant purchased for the purposes of public display the preserved foetus of a two-headed child, still-born some 40 years previously. Police confiscated the item, and the appellant brought an action in detinue to recover it. A majority of the HC held in favour of the appellant.]GRIFFITH J• A human body awaiting burial cannot be the subject of larceny, since the ownership could not be laid in any one.

An unburied corpse awaiting burial is nullius in rebus (owned by no one). But it does not follow from the fact that an object is at one time nullius in rebus that it is incapable of becoming the subject of ownership. For instance, the dead body of an animal ferae naturae is not at death the property of any one, but it may be appropriated by the finder. So, it does not follow from the mere fact that a human body at death is not the subject of ownership that it is forever incapable of having an owner. If that is the law, it must have some other foundation. After burial a corpse forms part of the land in which it is buried and the right of possession goes with the land.

• There is no law forbidding the mere possession of a human body, whether born alive or dead, for purposes other than immediate burial. A fortiori such possession is not unlawful if the body possesses attributes of such a nature that its preservation may afford valuable or interesting information or instruction.

• The court is free free to regard it as a case of first instance arising in the 20th century, and to decide it in accordance with general principles of law, which are usually in accord with reason and common sense”.

BARTON J• A person commits a misdemeanour who prevents the burial of any dead body or who, without

authority, dissects a dead body even from laudable motives, or who, having the means, neglects to bury a dead body which he or she is legally bound to bury. A person is equally an offender if he or she disposes of any dead body on which an inquest ought to be taken, without giving notice to a coroner, or if, being under legal duty to do so, he or she fails to give notice to a coroner, before the putrefaction of a body on which an inquest ought to be held, that such body is lying unburied.

HIGGINS J (Dissenting)• There can be no property, either general or special, in a human corpse, and, therefore, under no

circumstances can any person maintain an action of detinue or trover in respect of it. The only right analogous to a right of property for which there is any precedent is a right on the part of persons who by virtue of their relationship with the deceased are regarded as under a duty to give the corpse decent burial, and who seek to obtain it for that purpose.


(iii) Property Rights to Living Human Tissue• Due to the fact that medical science enables the donation of blood, sperm, ova, bone marrow, organs,

and other parts of the body, the law must cope with living human tissue which is not part of a person.o Tissue that was once regarded as an intrinsic part of the person (and therefore outside the

realm of property law) can become only contingently connected (and potentially a thing subject to property rights).

Regenerating Tissues• The human body produces a variety of tissue which will be replaced naturally if removed, such as

blood, fingernails, hair, saliva, and urine. These things can be subject to property rights.Non-regenerating Tissues• The removal of non-regenerating tissue from a living donor diminishes that donor. It transforms

something which was an intrinsic part of an individual into a separate thing.• Contracts to sell human tissue are unlawful in Australia, though that does not prevent human tissue

from being subject to property rights.o People are permitted to give that tissue to others. The law merely prohibits certain types of

transactions (e.g. contracts of sale) with respect to human tissue.‣ Moore v Regents of the University of California 793 P 2d 479 (Cal 1990)

o [The dfts had removed tissue from the ptf and used it to develop and patent a valuable cell line. The removal was necessary for the treatment of the ptf’s leukaemia and had been done with his consent. However, he did not know about or consent to the use of his tissue for medical research.]

o People did not have a right to possession of tissues removed from their bodies.o The majority of the court decided that the dfts could not be held liable to the ptf for conversion of that

tissue - the ptf did not have a sufficient property right to the tissue removed from his body to support a claim for conversion of that tissue.

NB: Other American cases have not followed Moore:‣ United States v Arora 860 F Supp 1091 (US DC Maryland 1994)

o The dft tampered with and destroyed living human cells being used as part of a research project. He was found guilty of conversion of those cells, which were subject to the ptf’s property rights.

• Once tissue is removed from a living person, it takes on a separate identity as a thing which should be subject to property rights.

o “Where parts of a living person’s body are removed and that person continues to live, one would have thought that as with blood, hair and the like that person had the first and best right to possession, though presumably one might transfer that right, as blood donors transfer it to a hospital or blood bank” (Paul Matthews).

Gametes and Embryos‣ Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37As foreshadowed by Rose LJ in R v Kelly, we are not content to see the common law in this area founded upon the principle in Doodeward's case, which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical...we prefer to rest our conclusions on a broader basis.In our judgment, for the purposes of their claims in negligence, the men had ownership of the sperm which they ejaculated[FACTS: Six men were diagnosed with cancer and were being treated at a hospital for which the defendant was responsible. They were asked if they wished to provide semen samples for storage in the event that the chemotherapy they were about to undergo was damaging to their fertility. Such samples were provided, preserved and stored. However, the liquid nitrogen in the tanks in which the samples were stored fell below the required level and the semen thawed. Proceedings based upon the tort of negligence were brought against the Trust by five of the men and the administrator of the estate of the sixth man. It was claimed that each had suffered either psychiatric injury or mental distress. The defendant asserted that even if a breach of duty (which it admitted) had caused the harm claimed, the men were not entitled to recover damages because the loss of the sperm constituted neither personal


injury nor damage to property. A judge determined preliminary issues adversely to the men, including finding in favour of the Trust on the two matters I have just mentioned. The Court of Appeal upheld the finding of the trial judge as to there being no personal injury, but a different view was taken on the property issue. It was held, unanimously, that the sperm, in the circumstances of the case, could be property for the purposes of the law of negligence.]Held:• In this jurisdiction developments in medical science require a re-analysis of the common law's

treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz an action in negligence) or otherwise.

• It was clear that for the purposes of claims in negligence, Y had ownership of their sperm. By their bodies, they alone had generated and ejaculated the sperm, and the sole object of their ejaculation was that it might later be used for their benefit.

• It would not be right for the common law in this area to be founded upon the principle in the Australian case of Doodeward v Spencethat a body part could be owned if it had been subjected to work or skill that conferred on it a different attribute, Doodeward considered. That principle had been devised as an exception to a principle, itself of exceptional character, that a human corpse was incapable of being owned.

Contrast with:

‣ *Re Estate of Edwards [2011] NSWSC 478Work and skill was applied to the preservation and storage of sperm taken from the deceased. Accordingly, on the authority of Doodeward v Spence (1908) 6 CLR 406 , the sperm was capable of being regarded as property. However on the same authority, the deceased did not have property in his semen when alive and so it did not form an asset of his estate.[FACTS: A woman sought possession of her dead husband’s sperm which had been extracted from his body after his death by earlier order of the Supreme Court. The court in the later action considered the possession application.]R A HULME J• Yearworth v North Bristol NHS Trust involved a distinction with the present case in that the property

right asserted was that of living men, or, in one case the administrator of the estate of a man, who had each freely donated sperm for a specific purpose (potential use to conceive a child by assisted reproductive treatment if they were rendered infertile).

• Aside from Doodeward v Spence, none are binding upon this Court. However, it is of some use to see that the law has not remained rigid but has been applied with a flexibility, albeit significantly constrained, in order to meet new situations exposed by the advancement in medical technology.

• ...the cases from other jurisdictions provide support for the conclusion of property. Although they are not binding, they are, collectively, persuasive of the view that the law should recognise the possibility of sperm being regarded as property, in certain circumstances, when it has been donated or removed for the purpose of being used in assisted reproductive treatment. Yearworth shows a preparedness of the England and Wales Court of Appeal to extend the law considerably beyond Doodeward v Spence. However, the conclusion of property in the present case can be made under the High Court's long-standing authority without any need for further exploration of the limits of the law.

o Applying Griffiths CJ's test in Doodeward v Spence to the facts of the present case, the removal of the sperm was lawfully carried out pursuant to the orders made by Simpson J. Work and skill was applied to it in that it has been preserved and stored. Accordingly, on this long standing and binding authority the sperm removed from the late Mr Edwards is capable of being property.

o It was not Mr Edwards' property. The authorities to which Higgins J referred, which were not doubted by the majority, support that proposition. The point of departure between the majority and Higgins J was only as to the recognition of the “lawful exercise of work or skill” exception. Accordingly, upon the authority of Doodeward v Spence, as Mr Edwards did not have property in his semen when he was alive, it did not form part of the assets of his estate upon his death.




‣ Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207The straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death.[FACTS: Mr Bazley, who was undergoing treatment for cancer, contracted for samples of his semen to be stored by the Clinic. Mr Bazley later died and Mrs Bazley, his wife, requested that the Clinic continue to store her late husband’s sperm. The Clinic stated that because Mr Bazley had not left a directive as to what should happen to his stored sperm after his death, the guidelines under which the Clinic operated required that it no longer store the sperm. The Clinic said that it would comply with any Supreme Court order that required it to continue to store her husband’s sperm, but otherwise would destroy the samples. Mrs Bazley applied for and obtained such an order. The Court held that the sperm samples were Mr Bazley’s property and formed part of his estate which, on his death, passed to Mrs Bazley.]Held:• “The relationship between the [Clinic] and [Mr Bazley was one of bailor and bailee for reward because, so long as

the fee was paid, and contact maintained, the [Clinic] agreed to store the [sperm]. The arrangement could also come to an end when [Mr Bazley] died without leaving a written directive about the semen, but plainly the bailor, or his personal representatives, maintained ownership of the straws of semen and could request the return of his property.” (White J, 215 – 216 [33])

‣ Starting point: judgment of Griffith CJ in High Court decision in Doodeward v Spence (1908) 6 CLR 406 (involving possession of the preserved corpse of a stillborn two-headed baby)

o an unburied corpse awaiting burial is not owned by anyone, but there is no absolute rule that a corpse may not become property (4111, 412)

o “... a human body, or a portion of a human body, is capable by law becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the circumstances.” (414)

‣ Decision of England & Wales Court of Appeal in Yearworth v North Bristol NHS Trust [2010] QB 1 (similar case except that the stored sperm was had been rendered usable due to the alleged negligence of the hospital)

o EWCA rejected the reasoning of Doodeward regarding the work and skill exception as illogical: severed finger example.

o EWCA relied on the fact that the donors produced the sperm and purposively arranged for its deposit for their later use as a reason for holding that they retained property rights.

o NB: Courts indicating an intention to prefer the reasoning in Yearworth.‣ Decision of Master Sanderson in Roche v Douglas (2000) 22 WAR 331 relied on the “real physical

presence” (existence) of excised human tissue as the basis for the conclusion that the tissue could be the subject of property

• After reviewing these and other authorities, in Bazley, White J said (215 [33]): The conclusion, both in law and common sense, must be that the straws of semen currently stores with the [Clinic] are property, the ownership of which vested in [Mr Bazley] while alive and his personal representatives after his death.”


(4) NON-POSSESSORY RIGHTS TO LAND

(a) Profits À Prendre‣ Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426

o A profit à prendre (‘ to take’) is a right to take something, such as sand, timber, or wild rabbits, from land belonging to another person.

• It is not a right to the things that may be taken, but a property right to the land from which they may be taken.

o A profit holder does not obtain a property right to the things until he or she obtains possession of them.

• Someone who wrongly interferes with the profit holder’s right is guilty not of trespass to or conversion of chattels, but of nuisance for interfering with a right to land.

• Profits à prendre may be granted by the Crown or the holder of an estate.o A profit à prendre is a right carved out of an estate and transferred to another. The estate

subject to the profit is called the servient tenement. The profit holder has the right to enter that land and take away certain things.

(b) Easements• An easement is a right to use a neighbour’s land without possessing it (e.g. right of way to travel

across neighbour’s land).Four requirements:‣ Re Ellenborough Park [1956] Ch 131

o The court identified four substantive requirements for the creation of an easement.(i) There must be a dominant and servient tenement.(ii) The easement must ‘accomodate’ the dominant tenement.(iii) The dominant and servient tenement must not be held and occupied by the same

person.(iv) The right must be capable of forming the subject matter of a grant.

There must be a dominant and servient tenement• An easement is exercised over land (the ‘servient tenement’) for the benefit of other land (the

‘dominant tenement’).• An easement must always be appurtenant (or ‘annexed’) to a dominant tenement: Concord Municipal

District v Coles (1906) 3 CLR 96o Thus: Whether a right is annexed to land, or is merely personal, is determined by consruing

the instrument creating the right: Rodwell v GR Evans & Co Pty Ltd (1977) 3 BPR 9114• Proximity of the Dominant Tenement: The dominant tenement need not be adjacent to the servient

tenement, however, it must be nearby.The easement must ‘accommodate’ the dominant tenement• The easement must benefit the dominant tenement and be connected with its enjoyment

o The crucial matter is whether the alleged easement has a ‘necessary connection’ with the land, in the sense of being reasonably necessary for its better enjoyment as a parcel of land. Whether that connection exists is a question of fact, depending largely on the nature of the land and the nature of the right claimed

o The benefit to the dominant tenement must be connected to the normal use and enjoyment of the land. A benefit to the owners or occupiers of land, which is unconnected to the land, would not be a valid easement.

‣ Clos Farming Estates v Eaton [2002] NSWCA 389o [The ptf claimed to have an ‘easement for vineyard’, which entitled it to grow and harvest grapes on land owned by

the dfts.]

(1) Introduction to Property & Real Property! 20(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: NON-POSSESSORY RIGHTS TO LAND

o The claim failed, partly because that right did not accommodate the ptf’s land, which contained an office block and sheds for farm machinery and supplies. I.e., it did not enhance the use and enjoyment of the ptf’s land in any meaningful way and therefore could not be an easement.

‣ Clapman v Edwards [1938] 2 All ER 507o A purported easement might fail to accommodate a dominant tenement if the exercise of the right is not

limited to purposes which benefit the dominant tenement.o [The dft leased a petrol station and the right to use the wall of an adjoining block of flats ‘for advertising purposes’.]o This did not create an easement since the right to advertise was not limited to purposes

connected with the use of the land leased by the dft.The same person must not own and occupy the dominant and servient tenements• Since an easement connotes rights exercisable against the land of another, a person cannot have an

‘easement’ over his or her own land: Metropolitan Railway Co v Fowler [1892] 1 QB 165The right claimed must be capable of forming the subject matter of a grant• Being incorporeal interests, easements are said to ‘lie in grant’.

o The grantor must be capable in law of granting the easement (Milliner v Midland Railway Co (1879) Ch D 611) and the grantee capable of receiving (Re Salvin’s Indenture [1938] 2 All ER 498

(1) Introduction to Property & Real Property! 21(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: NON-POSSESSORY RIGHTS TO LAND

(5) LICENCESA licence is mere permission to do something which would otherwise be unlawful

LicencesBare licence• A bare licence is the permission to use something.• It is never a property right and strictly speaking is not a right at all.• A bare licence does not correspond to any obligation, but merely permits the licencee to do something

which would otherwise be unlawful.‣ R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327

o A mere licence to use land “is a personal privilege conferring no interest in the land...It is generally revocable and merely excuses a trespass until it is revoked” (Wilson J).

Contractual licence• A contractual licence is (like a bare licence), permission to use something.

o However: the contract creates a legal right to use that thing, which corresponds to the owner’s legal obligation to permit that use.

• Difference between bare licence and contractual licence is not the contract, but the existence of a legal right and corresponding obligation regarding the use of something.

Licence Coupled with an Interest• Two similar but distinct meanings

(1) Can be used to describe a right to enter land which is a component of a recognised property right (such as a profit a prendre or an easement).

(2) It can be used to describe a property right which does not have a clearly established place in Australian property law.

Enforcing the LicenceEnforcing the Licence against the Grantor• Most common response is to compel the grantor (if contractual licence) to pay damages for breach of

contract.• Less commonly, the law may compel the wrongdoer to fulfil the plaintiff’s right:

o Court may order the wrongdoer either to stop interfering with the right (a prohibitive injunction); or

o To perform the corresponding obligation (an order for specific performance or mandatory injunction).

Enforcing the Licence Against Other• Most licences are personal rights enforceable only against specific persons and not against other

members of society.

(1) Introduction to Property & Real Property! 22(I) INTRODUCTION TO GENERAL PROPERTY CONCEPTS: LICENCES

(II) DEFINITION OF LAND & DOCTRINE OF FIXTURES

(1) LAND• The market value of land is affected by its physical condition; Unlike goods, physical changes to land

rarely affect property rights to it.• An estate is a right to possess a volume of space, measured relative to the surface of the earth, for a period of time.• Since estates are almost immune to physical changes to land, so too are most other property rights to

land. This is because other rights, such as mortgages, easements, and restrictive covenants, are attached to estates and not directly to the land subject to those estates.

• A physical change to land can affect an estate only if it alters one of its four dimensions. This can happen in two different ways:

(1) Accretion to or erosion from a shoreline.(2) Total destruction of the premises to which the estate relates.

(a) Accretion and Erosion• If a shoreline forms part of the boundary of an estate and that line moves, the dimensions of an estate

will change. An increase in the size of the estate is called accretion and a decrease is called erosion.Definition of the Boundary‣ Southern Centre of Theosophy Inc v SA [1982] AC 706

o Where land is granted with a water boundary, the title of the grantee extends to that land as added to or detracted from by accretion, or diluvion, an...this i so whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the land, and whether or not the original boundary can be identified.

✦ Crowns Land Act 1989 (NSW) s 172: o [Principle can be excluded by statute]: “The doctrine of accretion does not apply, and never

has applied to a non-tidal lake” instead, the boundary is fixed as “the bank of the lake at the time of the Crown survey for the purposes of alienation”.

Gradual Change• The doctrine of accretion and erosion applies only if the shoreline changes gradually.‣ Southern Centre of Theosophy Inc v SA [1982] AC 706

o One naturally searches for a reason or rationale for the requirement that the process be gradual and imperceptible, but this proves elusive.

o Unclear - distinction between gradual and sudden change: “There is a logical, and practical, gap or ‘grey area’ between what is imperceptible and what is to be considered as ‘avulsion’” and therefore the issue is a question of fact for the jury to decide.

Intervention by the Estate Holders• Gradual changes to a shoreline count as accretion or erosion, whether caused naturally or by human

intervention. The one exception is accretion caused deliberately by estate holders wanting to increase the size of their restate.

o Land created intentionally by reclamation belongs to the Crown at common law.

(b) Total destruction of the Premises• The total destruction of the premises might bring an estate to an end.‣ National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675

o The total disappearance of the site...into the sea” would cause both freehold and leasehold estates to cease to exist.

o The destruction of a building would destroy a lease of an upper-floor flat. The vacant air space would be of no use to the tenants and there would be no reason to continue their rights

(1) Introduction to Property & Real Property! 23(II) DEFINITION OF LAND & DOCTRINE OF FIXTURES: LAND

to possess it. If a new building was constructed on that site, it would be highly unlikely that it would be identical to the old building and occupy precisely the same space.

o The boundaries of a leasehold estate of an upper-floor flat are defined, not directly in relation to the surface of the earth, but by the walls, floors, and ceilings of the building. The destruction of the building destroys the boundaries which defined those estates.

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(2) DOCTRINE OF FIXTURESOVERVIEW

• If land is sold, fixtures pass to the buyer as part of the realty, without need for special mention in the contract or conveyance: Colegrave v Dias Santos (1823) 2 B & C 76; in contrast, chattels do not pass to the buyer without express mention.

• Frequently, a contract for sale of land will specify what is included in the sale and what is not in the sale. If the contract did specifically state that the purported fixture was to be specifically transferred - end of matter and vice versa. It is only when the contract does not specify the alternatives that you proceed to the general law.

DEGREE OF ANNEXATION

• There are two (rebuttable) presumptions (c.f.: Holland v Hodgson (1872) LR 7 CP 328; Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700):

(1) Where the item is simply resting on the land by its own weight it is presumed chattel and the burden of proving otherwise is on the party arguing that it is a fixture, to show that it is a fixture.

(2) Where the item is fixed to land to any extent (other than simply by its own weight) it is presumed to be a fixture and the burden of proving otherwise is on the party who argues that it is a chattel, to show that it is a chattel (Belgrave Nominees v Barlin-Scott Airconditioning (Aust))

‣ Holland v Hodgson (1872) LR 7 CP 328o There is no doubt that the general maxim of the law is, that what is annexed to the land

becomes part of the land...It is a question which must depend on the circumstances of each case, and mainly on two circumstances as indicating the intention, viz, the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, then by its own weight it is generally to be considered a mere chattel.

o Perhaps the true rule is, that (1) articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they are so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, (2) an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel.

‣ Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700o A fixture is a thing once a chattel which has become in law land through having been fixed to

land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose.

o Two Presumptions: (1) If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not; (2) If it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is.

o The test of 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 (Holland v Hodgson), or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose.

‣ Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947o Even slight fixing to the land is sufficient to raise the presumption that a chattel is a fixture. In those

circumstances, the onus of proving otherwise rests upon the party so contending.‣ *Leigh v Taylor [1902] AC 157

o The mode of annexation is only one of the circumstances of the case, and not always the most important - and its relative importance is probably not what it was in ruder or simper times.

(1) Introduction to Property & Real Property! 25(II) DEFINITION OF LAND & DOCTRINE OF FIXTURES: DOCTRINE OF FIXTURES (OVERVIEW)

OBJECT OF ANNEXATION - INTENTION/PURPOSE OF ANNEXATION

• If it is practical to remove a possible fixture from the land, then its status is determined by the object of annexation.

o The essential question is: was it joined to the land for its better use as a chattel or for the improvement of the land?

o The object of annexation does not depend on what anyone was actually thinking when the thing was joined to the land. It is the apparent purpose for joining something to land, as revealed by observable circumstances.

• In determining whether an item that was once a chattel has become a fixture, the guiding principle is the intention with which the item was brought onto the land, and pointers to that intention are the degree and purpose of the annexation. … an intention to permanently improve the realty is easier to discern when an absolute owner brings the item onto the land than when a tenant does so, for a tenant is unlikely to intend to make a present of the item to the landlord (Peter Butt)

‣ *Palumberi v Palumberi (1986) NSW ConvR 55-287o In considering the recognised tests to determine whether a chattel has become a fixture, there

is a perceptible decline in the comparative importance of the degree or mode of annexation, with a tendency to greater emphasis being placed upon the purpose or object of annexation, or the intention with which the item was placed upon land. This shift has involved a greater reliance upon the individual surrounding circumstances of the case in question as distinct from any attempt to seek to apply some simple rule or some automatic solution.

o “I think the proper inference to draw from the circumstances in which the stove and carpet were installed in the premises, is that the defendant intended them to form part of the premises; and this intention is, of course, supported by his anticipated entitlement to indefinite enjoyment of the benefit of such items in his character as prospective owner of the premises.”

‣ Even though slightly attached, the stove and carpet were attached for the enjoyment of the premises and were fixtures. (Stove essential and integral element of a kitchen.)

‣ Venetian blinds “are essentially a form of furnishing installed for the greater comfort and convenience of the occupants of the premises.” Therefore a chattel, even though installed for an indefinite duration.

‣ Television antenna installed for the better use and enjoyment of the television set. Attached to the building so that it could function. Chattel.

‣ Linen cabinet is clearly a chattel. Freestanding and readily removable.

‣ NH Dunn Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241o Whether a chattel has become part of the realty is a question of fact to be determined having

regard to all relevant circumstances, including the purpose and mode of annexation. Relevant factors in working out whether a chattel has become a fixture is to look at (Mahoney JA):

‣ The contemplated duration of the annexation (how long was it intended to stay in place for). If it was intended to stay in place permanently, indefinitely or for a substantial period of time (10 years in present case), that suggests fixture. If it was only intended to be attached for a temporary period, that suggests chattel.

‣ Degree of annexation (small - chattel; large - fixture).‣ Function to be served by the annexation (what was the intention or the object for which

the chattel was intended to be attached to the land - predominantly objectively assessed). “The object and purpose of the slight annexation of some parts of the business equipment was to better enable its enjoyment as a chattel along with other property, undoubtedly chattels, rather than to improve the land. The purpose of the slight fixing was to steady it for enjoyment of it as a chattel and not make it part of the land so the land could be better enjoyed” (Moffitt P)

o “The circumstances relevant to the present decision are that the chattels comprised in the PABX were attached to the premises to steady them, that the enjoyment of them was thereby enhanced, that they could be detached with little difficulty and expense, that they were to remain there for an indefinite period, that the tenant had the right as against the owner of the realty to remove them at the termination of the lease and that the owner of the chattels had the right as against the tenant to repossess them at the end of the hiring period” (Glass JA).

(1) Introduction to Property & Real Property! 26(II) DEFINITION OF LAND & DOCTRINE OF FIXTURES: DOCTRINE OF FIXTURES (OVERVIEW)

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