Property Law

Proprietary Rights

Rights to use and enjoy property, exclude others from using and alienate (dispose)
Licence is not ownership
Numerus clausus – depends on the specific type of property title
In personam – enforceable against a particular person
In rem – against the whole world

Real Property	Rights in land Contract needs to be in writing
Personal Property	Chattels and lesser land rights like leases Chattels Choses in possession – tangible possessions Choses in action – intangible property like IP
Doctrine of Fixtures Any personal property affixed to the land becomes a part of the real property – ownership can transfer. However, tenant’s fixtures are recoverable until the end of the lease, unless annexed without permission
Degree of annexation	Not just fixed by its own weight
Intention	Whether intention was that it would become annexed

Interests and Actions in Property

Personal Property Actions

Trespass – interference with actual possession
Conversion and detinue – depriving someone of their right to possession e.g. using as if their own

Claim for Recovery of Land

Need to show better title than defendant works against anyone except someone with better title (relativity of titles). Show through:

Registered title
Tracing of ownership
Adverse possession

12 year limitation to recover land from when the adverse possession exists

Interests in Land

Doctrine of tenure

Dividing land based on space, by the Crown

Doctrine of estates

Dividing land based on time, with interests flowing to remaindermen
Freehold – fee simple or life estate
Leasehold

Native title

Dividing land based on indigenous claims

Sale of Real Property

Must be in writing (except where there has been part performance, which creates equitable transfer)
Must be registered to be effective
Agreement must be made in approved form
Before sale and settlement, there is transfer of equitable title

Gifts

Transfer of title for no consideration

Only enforceable if legally transferred, equity does not recognise

Indefeasibility

except where the person registering has acquired the property through fraudulent means and
In personam exception – where there are rights alleged by another person under contract
Other exceptions are easements, profit-a-pendre, short-term leases (< 3 years) and adverse possession

Caveat

Registration ‘injunction’ to prevent new interests being registered while the caveat-holder’s interest is resolved in court

Equitable Assignment

Equity may recognise assignment where it is legally effective (doesn’t meet required formalities) – where the assignor has done all they need to do to make it effective

Tracing

Tracing of property rights (common law or equity) to determine plaintiff’s interest where property has been mixed

Fiduciary Relationships

Fiduciary acts for Principal and in interests of Principal

Duties include:

Not to make profit
Not to act in own benefit or that of third parties
Not to put themselves in a position of conflict
E.g. solicitor/client, director/company, trustee/beneficiary

Remedies include

Account of profits
Constructive trust – profits are to be held on trust
Recission of any contract entered into
Equitable lien – security interest over property
Third parties may be held liable for assisting in breach of duty

Ownership Interests

Co-ownership
Joint Tenants	The parties own the property together and not individually (e.g. most married couples owning property. Must have unity of possession, interest, title and time Right of survivorship – title remains with living joint tenants on death of another Severance – joint tenant can sever his/her interest, creating a tenancy in common
Tenants in Common	The parties own separate interests in the whole property No right of survivorship – if one party dies, their interest passes to their estate
Doctrine of Fixtures Any personal property affixed to the land becomes a part of the real property – ownership can transfer. However, tenant’s fixtures are recoverable until the end of the lease, unless annexed without permission.
Degree of annexation	Not just fixed by its own weight
Intention	Whether intention was that it would become annexed

Leases

Legal lease – through deed
Common law lease – through possession
Equitable lease – agreement for lease
Contractual and proprietary
Lease confers exclusive possession, licence does not
Lease covenants – terms of the lease
Absolute – prohibited generally
Qualified – prohibited except with consent of the landlord
Assignment – there may be continued liability, if the lessor covenants for himself and any successors in title. Any successors (lessee or sublessee) must indemnify the assignor
Privity of Estate – assignee can be sued (but sublessor cannot)

Remedies

Landlord – forfeiture of lease/ right to re-enter
Termination does not usually entitle the landlord to damages – unless expressly provided for in the lease.