PROPERTY LAW

Meaning of Property and Interests in Land

Doctrine of Tenure and Estates

Historical development rights not absolute right in rem freehold estate

Doctrine of tenure
 

 

All land is vested in the Crown Therefore the crown can recover the land for its purposes The citizen is not the absolute owner The tenure describes the quality of the title

Doctrine of estates
    

A citizen has an estate in the land, not outright ownership The estate describes the shape or duration of the land The estate describes interests that are defined in duration The estate confers a right to possession Hence most land owners require a freehold estate in fee simple

Estates
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Freehold Fee simple Fee Tail Life Estate Estate pur autre vie

  

Equitable interest Compulsory acquisition Conveyancing

Personal property
 

Chattels real (Leasehold interest) Chattels personal

Real Property- 2 maxims

Landowner owns the sky above and the ground below Kelsen v Imperial Tobacco (1957) 2 QB 334 Advertising hoarding over airspace was a trespass Baron Bernstein of Leigh v Skyways(1978) QB 479, aerial photography was not a trespass Landowner owns everything fixed to the land doctrine of fixtures and chattels

Fixtures and Chattels

Two tests: Degree of annexation Intention of placement The degree of annexation requires consideration of the amount of attachment between the item and the property Re May Bros pg 29 Also ask if repair necessary after removal

Is it a fixture or chattel? tests

  

Intention of placement requires the court to consider what the owner intended when the item was placed on the property. Was it intended to be permanent? Did it enhance the property or was it for personal use? Consideration of the taste and fashion of the day is a factor Leigh v Taylor pg 30

Case examples


Neylon v Dickens (1979) N.Z.L.R. 714, a pre-fab dwelling, helicopter hanger and storage facilities held not to be fixtures even though foundations, drainage and sewerage and power DEyncourt v Gregory (1866) 3Eq 382 where marble vases, lions and stone seats held to be fixtures as part of architectural design

Cases..
 

 

Isaacs v Lord (1920) VLR 274 roller blinds were chattels but sockets fixtures. Common sense? Abercrombie v Wollington (1956) WN. N.S.W. 336 a freestanding electrical stove was not a fixture even though connected to wiring Compare Palumberi Thomas v Beck pg 30 dishwasher a fixture, but dryer a chattel

Palumberi v Palumberi (1986) ANZ ConvR 592

Facts: Brothers fighting over the items inserted in a flat during renovations no chattels listed in contract of sale. Venetian blinds, stove, heater, linen cupboard, TV antenna, carpets, spotlight and timer, curtains Stove and carpets held to be fixtures

Cases.


Wellesmore v Ratford (1973) 23 FLR 295, an exhibit bolted to the ground was held to be a fixture. Realistic? Cf airconditioner? Aust Provincial Insurance v Coroneo (1938) 38 SR (NSW) 700, the onus of proof is on those claiming it is a fixture, if it is ordinarily a chattel and circumstances of attachment lead to assertion it is a fixture. And so those asserting something attached is still a chattel have the onus of proving it. Hynes v Vaughan where a pile of rubbish including rotting vegetables, soil and bonfire residue had merged with real property

Landlords and Tenants fixtures/fittings

Purpose and value For the tenants personal use or business? Or arguably now part of the structure itself and therefore a fixture now belonging to the landlord?