What is Property? - S&N 1.1- 1.

7E
Property is the institution by means of which societies regulate access to material resources
Capitalist societies offer extensive protection to private property because of belief that ability to own private
property is an essential incentive for wealth creation
Communist societies favor publicly owned property, believing that private property is a source of oppression and
inequality
In Australia, diversity of forms of property rules is reflected in mix of traditional rules and practices alongside
modern forms of property Indigenous land rights
Property law defines the relationship between legal persons with respect to things
Objects of property can change in response to changes I social conditions
o Whether human cells or body parts should be treated as property
o Moore v Regents of the University of California (1990) 793 P2d 479
Felix Cohen
o Property concerns the relation between persons in relations to things
o Private property must at least involve the right of the owner to exclude others from doing something in respect
of the object of ownership
Wesley Hohfeld
o The term property tends to be used in three different senses
a. Used to indicate the physical object to which legal rights relate
b. Used to denote the legal interest relating to the physical object
c. Used to convey no definite meaning whatsoever

The idea of property in law K Gray and S f Gray, Land Law: Themes and Perspectives
Property is not a thing, but rather a relationship which one has with a thing
o One has property in a thing rather, rather than the thing being ones property
To claim property is to assert a strategically important degree of control over that resource, and
Property is a word used to describe particular concentrations of power over things an resources
Power relationship implicit in property is relative,:
o Amount of property one can claim in a resource is capable of calibration
o Property has an infinitely gradable quality
The idea of property in land oscillates ambivalently between:
A. the behavioral, conceptual, and obligational
B. competing models of property as a fact, as a right, as a responsibility


The characteristics of property
S&N 1.8- 1.11
Blackburn J in Milirrpum v Nabalco (1971) 17 FLR 141
o Property generally implies:
a. the right to use or enjoy
b. The right to exclude others
c. The right to alienate
o Did not say these rights must co-exist before there can be proprietary interest, or deny them as subject to
qualifications
The right to use or enjoy
o Yanner v Eaton (1999) 201 CLR 351
- The term property does not necessarily mean full, exclusive or beneficial ownership
- Interpreted as per s.7(1) of the Fauna Conservation Act 1952 (Qld)
a. Property is a description of a legal relationship with a thing
b. Property is a legally endorsed concentration of power over things and resources
o Wily v St George Partnership Banking Ltd (1999) 84 FCR 423
- Property comprised legal relations and not things
- It was not necessary that the dominion of the owner be absolute or fixed
- As per Jeremy Bentham, property and law are born together; take away laws, and property ceases
Right to alienate
o Alienation is the capacity for a piece of property or a property right to be sold or otherwise transferred from one
party to another.
o R v Toohey; Exparte Meneling Station Pty Ltd (1982) 158 CLR 327
- Assignability is not it all circumstances an essential characteristic right of property
- A proprietary right must be capable in its nature of assumption by third parties
o Courts commonly treat non-assignable rights as property rights
o Re Potter (decd) [1970] VR 352
- A beneficiary under a will was held to have acquired a non-assignable right to reside in a certain house as long
as he desired
o Hamilton v Porta [1958] VR 247
- The statutory tenancy of a tenant whose lease has expired, but who remains in possession pursuant to legislation
controlling rents and security of tenure, has a non-assignable interest in the land
The right to exclude
o Such is an essentially private right excusable against the general public, including the state
o Distinction between public and private aspects:
- Common law public right to fish and navigate in the open sea. Blundell v Catterall (1821) 106 ER 540
- Such a right extends to tidal waters. Case of the Royal Fishery of the Banne (1610) 80 ER 540
o Public rights are to be distinguished from public ownership of utilities or industries
- Where the state owns assets on behalf of public to regulate their use for public benefit
o Public rights are rights where all citizens jointly enjoy over things as property rights

S&N 1.13- 1.14
Private law can be subdivided into two distinct categories:
1. Property rights
2. Obligations The rights of persons against other persons that arise from certain events
Distinctions between:
a. Property rights
o Rights are in rem (enforceable in respect of a thing)
b. Personal rights
o Rights are in personam (enforceable against a person)
Categories of private rights are contracts, torts and unjust enrichment
Public law is referred to as civil rights or political rights


Culturally/historically specific characteristics of property
Milirrpum v. Nabalco Pty Ltd (1971) 17 FLR 141 (S&N 3.80)
The Yolnga people brought an action against the Nabalco Corporation which had secured a twelve year mining lease
from the Federal Government.
The Plaintiffs claimed they enjoyed sovereign rights over their land and sought declarations to occupy the land free
from interference pursuant to their native title rights.
Held:
o Blackburn J categorically held that native title was not part of the law of Australia and went on to add that
even had it existed any native title rights were extinguished.
o Additionally if extinguishment had not occurred the Plaintiffs were unable to prove the elements required to
establish native title.
- Even if common law recognized communal native title, it was necessary for them to prove that their
predecessors had held a proprietary interest in the land
- Aboriginal land use did not have the standard characteristics. No exclusive occupation in that case, and no
ability to alienate.
o However, the Judge did acknowledge the claimants' ritual and economic use of the land and that they had an
established system of law.
o Until overturned by Mabo two decades later, the law on native title remained as enunciated by Blackburn J.

Property and contractual rights - S&N 1.15
In general, property rights are rights over things enforceable against other persons Better than contractual rights.
Can overlap with contractual rights
Contractual rights are rights enforceable against particular persons
In relation to land, contracts for the sale of an interest generally attract the remedy of specific performance Here
two sets of legal relationships exist alongside:
o Right to sue for damages on contract
o Proprietary right exercisable over thing
Rights granted over a thing by its owner have been held by the courts to be insufficiently substantial to confer on
the non-owner a definable interest right in the thing
o Example of licenses which are an insufficiently substantial concentration of power over a thing
Even if licenses are created by mean of a binding contract, they do not give rise to proprietary interests

King v David Allen & Sons Billposting Ltd [1916] 2 AC 54 (S&N 1.26C 1.29)
King contracted to give David Allen exclusive rights to place advertising material on Kings theatre wall for 4 years
o contractual licence
King then leased the theatre to a company for 40 years
o Contractual lease
The company did not allow David Allen to place his advertising on the wall
After completion of the theatre, the David Allen attempted to put up posters, but was forcibly stopped by the other
company from doing so; King protested to no avail.
David Allen commenced action against King, claiming damages for breach of agreement.
Held:
o David Allens right to post advertising on the wall was contractual in nature, not proprietary (contractual
licence)
- The company, not being a party to the contract, was not bound
- Damages could be obtained from King
o Privity of contract v Right to exclude the world = contractual (in personam) v proprietary (in rem)
o A license does not qualify as a proprietary right. This is because it delivers insufficient control over the land.
o Only proprietary rights are enforceable against third parties. However, an interest is not proprietary simply
because it is enforceable against third parties.
o A proprietary interest could have been created through clear wording in the contract as a lease shows
importance of construing the document.



Can new kinds of property be created?
A. By the Courts Common law
Restrictive covenants
Tulk v Moxhay (1848) 2 Ph 774; 41 ER 1143 (S&N 9.24C)
Tulk (plaintiff) sold Leicester Square to Elms, with the restriction that it be maintained in a certain form as a public
pleasure ground.
The deed restriction was covenant for heirs and assigns requiring that the land be maintained as a square garden.
The Tulk continued to own homes and live around the square after its sale.
In 1808, Elms had notice of the covenant contained in the deed set by Tulk.
Forty years later, the property was sold to the Moxhay [Defendant].
Moxhal sought to build upon the land on the square. Tulk brought a bill for injunction to stop any construction.
Held:
o For the first time, a new type of property interest known as a negative covenant was recognized
o The covenant was binding on subsequent purchasers of the land if they had notice (runs with the land in
equity)
o It did not matter that Moxhay was not a contractual party as the covenant was a property interest, thus
enforceable (in equity) against the world
o Since a covenant is a contract between the vendor and the vendee, it may be enforced against a subsequent
purchaser who has notice of the contractual obligation of his vendor, even though it does not run with the land.
o Ruled in favour of Tulk because:
a. The covenant was given by the covenantor on behalf of himself, his heirs and assigns; and
b. The subsequent purchaser had notice of the covenant

Property in a spectacle
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (S&N 1.47- 1.52)
The defendants erected on land adjoining the plaintiffs racecourse a platform, from which a race-caller broadcast
radio descriptions of the horse races
These broadcasted to a decline in attendance and economic loss for the racecourse
Held:
o There was no property in a spectacle - A "spectacle" cannot be "owned" in any ordinary sense of that word. It
is property only in a metaphorical sense
o There was no proof that nuisance had been brought upon the race track - Broadcasting does not interfere with
the use and enjoyment of the land or the conduct of the race meetings or the comfort or enjoyment of any of the
plaintiff's patrons
o The Court did not recognize the existence of a legal right to privacy.
o Building the platform was not an unnatural use of property, as it did not breach any bylaws.

ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
The plaintiff conducted business under government licence as a slaughterer of brush-tailed possums for export.
Unknown trespassers installed a hidden camera in the plaintiffs abattoir and filmed the slaughtering operations.
The videotape was supplied to the Animal Liberation Limited which passed it to the ABC
The plaintiff sought an injunction to restrain the broadcast of the tape.
The issue was whether the plaintiff had a substantive claim against the broadcaster, as opposed to the filmmakers.
Held:
o An interlocutory injunction could be awarded to restrain the media from publishing material, such as video
material, obtained by means of a trespass.
o In each case, the media organisation itself was the trespasser. The courts had held that an injunction could be
awarded, but only in circumstances where publication of the material would be unconscionable
o Held that, in the circumstances, interlocutory relief was unavailable
o Lenah had no legal or substantive right that would justify an injunction against ABC.
o Held that a corporation does not have a right of privacy
o Injunction is a discretionary remedy and will only granted where damages will not suffice and there is a
substantive cause of action that can be brought against the defendant


Human bodies and body parts
Bazley v Wesley Monash IVP Pty Ltd [2011] 2 Qd R 207
IVF clinic held six straws of semen belonging to applicant's deceased husband
Husband died of cancer and IVF clinic planning to destroy samples without Qld SCt order
Wife sought injunction restraining destruction, claiming sperm was property of her husband
Held:
o There was a right to possession in material or samples taken from a dead body
o That sperm extracted from the human body and stored can be described as property; ownership of which
vested in the deceased while alive and in his representatives after his death
- Doodeward v Spence (1908) 6 CLR 406
o The judge held that the whole of the circumstances showed that by his actions before death, including making
an appointment to go with his wife to a fertility clinic, the man had impliedly consented to the use of his sperm
by his widow.
o Relationship between parties was one of bailment
o IVF clinic held sperm deposit as bailee and husband, or his representative, were entitled to call for property's
return as bailor

Moore v Regents of the University of California (1990) 793 P 2d 479
Moore (P) leukaemia patient - his white blood cells (T-lymphocyte cells) were malignant & overproduced
lymphokines (protein)
This was a special/unique characteristic - made it easier to identify which gene was the source of the protein
Dr Golde removed his spleen as part of his treatment & decided to retain for research Moore not told of research
Over next 7 years skin, blood, bone marrow & other fluids extracted and a cell-line established
Dr Golde published research & contract US$500,000
Moore sued on the basis of:
a. Breach of fiduciary duty
b. Tort of conversion
Held:
o Moore succeeded on breach of fiduciary duty (conflict of interest between duties as doctor & research/profit
interest)
o Moore failed on conversion - tort of wrongful interference with anothers property rights
o That no action based on a theory of conversion may be prosecuted where the subject matter of the allegation
are excised cells taken from Plaintiff in the course of a medical treatment;
o However, that an action may be based on theories of breach of fiduciary duty or lack of informed consent.



Native Title
Milirrpum v Nabalco Pty Ltd [1971] 17 FLR 141 (S&N 1.8, 3.80)
See above

Mabo v Queensland (No 2) (1992) 175 CLR 1 (S&N 3.76C, 3.84)
The Plaintiff [Mabo, representing the Merriam people] had occupied certain islands in Queensland long before
colonial occupation.
The present inhabitants were direct descendents of those people described in colonial reports. The islands were
annexed to the Crown in 1879.
After being challenged by the Plaintiff in the past, the Queensland government enacted the Queensland Coast
Islands Declaratory Act 1985 (Qld). This declared that upon annexation of the islands in 1879, everything became
vested solely in the state of Queensland.
The Plaintiff opposed this, seeking a declaration that this legislation was invalid as it was contrary to the Racial
Discrimination Act 1975 (Cth).
Issue: This case concerned the question of ownership and title, in particular, whether the common law doctrine of
tenure could coexist with native title.
Held:
o First recognition of native title rights
- Recognized a claim by Eddie Mabo and others on behalf of the Meriam people of the Island of Mer in the
Murray Islands in the Torres Strait,
- that the Meriam people owned the land at common law because they were the traditional owners of their
country under Islander law and custom.
o Native title is not an interest within the common law system of title.
- Per Brennan J (Mason CJ and McHugh agreeing): Native title, though recognised by the common law, is
not an institution of the common law and is not alienable by the common law.
o Native title rights can be recognised by the common law, without being part of it.
- Per Deane and Gaudron JJ: The preferable approach is to recognise the inappropriateness of forcing the
native title to conform to traditional common law concepts and to accept it as sui generis or unique.

o Its nature depends on the customary use of the land, and it requires ongoing connection with, and occupation of,
the land.
o Since Australia was inhabited (and not terra nullius), radical title did not mean full beneficial ownership.
o The Crowns radical title only conferred sovereignty. Sovereignty did not extinguish native title by default.
o Native title exists where:
a. The indigenous can prove a continuous connection (from before the time of colonisation) to the land
through traditional customs; and
b. This title hasnt been extinguished or modified subsequently (ie, the Crown hasn't 'granted' it to someone).
o In Mabo, the community was in exclusive occupation.
- Rights are usually communal rather than individual.
- As customary use does not allow alienation the rights cannot be transferred.
o Brennan J indicates that native title may be proprietary or personal, depending on the traditional customs/uses
involved.
o Deane and Gaudron JJ regard native title as giving personal rights of use and occupation.
o Rights vary from use to equivalent to full ownership, depending on customs.




B. By the legislature
Intellectual property rights are among the most significant examples of proprietary interests created by legislatures.
Examples include the:
a. Copyright Act 1968,
b. Designs Act 1906, and
c. Trademarks Act 1995.

Protection of property rights
Many countries confer a degree of constitutional protection on property rights.
In Australia, the Federal Constitution confers power on the Federal parliament to make laws with respect to the
acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has
power to make laws:
o Constitution s 51 (xxxi).
In Victoria, there is legislative but not constitutional protection. Upon notice of acquisition by a State authority
every person who, immediately before the publication of a notice of acquisition, had an interest in land that is
divested or 8 diminished by the acquisition of the interesthas a claim for compensation:
o Land Acquisition and Compensation Act 1986 (Vic.) s. 30.
State Constitutions contain no express or implied prohibition on acquiring property other than on just terms
o (Durham Holdings v NSW (2001) 205 CLR 399).
However, the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20 provides that a person must not be
deprived of his or her property other than in accordance with the law.

S&N 1.64-1.69. Property rights and human rights
Davis v Commonwealth (1988) 166 CLR 79
o In certain circumstances where property rights unreasonably affect civil rights to free expression, they may be
curtailed by the courts
Civil rights are also protected by international human rights conventions such as:
o The Universal Declaration of Human Rights
o The International Covenant on Civil and Political Rights
o The International Covenant on Economic, Social and Cultural Rights
o The European Convention on Human Rights
art 17 of the UDHR states that:
1. Everyone has the right to own property alone as well as in association with others
2. No-one shall be arbitrarily deprived of his property
Kiao v West (1985) 159 CLR 550
o Ratification of an international human rights instrument does not mean that those human right norms have
domestic force since they are not automatically incorporated into Australian law
However, such human rights legislation and values may be persuasive in cases where existing common law rules do
not provide clear guidance
Mabo v Queensland (No 2) (1992) 175 CLR 1
o The opening up of international remedies to individuals brings to bear on the common law the powerful
influence of the Covenant and the international standards it imports
o International law is a legitimate and important influence on the development of the common law
The parliament of Victoria has introduced the Charter of Human Rights and Responsibilities Act 2006 (Vic)
o Section 20 entitled Property Rights is similar to art 17 of the UDHR and art 1 of Protocol No 1 of the
ECHR
o S.20 A person should not be deprived of his or her property other than in accordance with law






Lecture notes
Concept of property Cohens dialogue
If something is your property, you have certain rights over it
More than one person can have property in an object b/c property is not the object itself, but the rights in relation to
the object.
o B/c more than one person can have property in an object, the property lawyer is concerned with the relative
merits of the claims ie who has a better right
Private property is a right of people in respect of things, tangible or intangible, such that the so called owner can
exclude others from certain activities and permit others to engage in those activities and in either case can secure the
assistance of the state in carrying out that decision.
Such rights are enforceable against an indeterminate number of people
Property is essentially a set of legal relationships b/n people in relation to objects, and a claim of property gives the
property holder rights over that object.

Theories of property
First occupation theory - Finders, keepers
Labour/Natural rights theory - A man should be entitled to reap what he has sown
Property and personality theory (eg Hegel) - An external expression of individual will and personality
Social utility theory/utilitarianism (eg Bentham) - Greatest happiness for the greatest number
Economic efficiency theory (eg Posner)
o An incentive for efficient use of resources and to promote economic productivity
o In order to maximise efficiency and wealth of society property rights should be universal, exclusive and
transferable.

Characteristics of Property
Ownership of an object generally includes the right to:
o Use
o Alienate
o Exclude
These are culturally and historically specific.
Propriety versus contractual interests
o King v David Allen & Sons Bill posting Ltd [1916]

Subjects and objects of property
Subjects:
o Societies determine who can be subjects of property has power implications
o Historically people have been excluded
o People still are excluded
Objects:
o Societies determine what can be an object of property
o Again, historical concepts
o Technology impacts on this as do needs of individuals (should space, DNA or parts of human body be
property?)



Recognizing new forms of property
All modern legal systems recognize a limited range of different types of property rights
Only rarely do the courts recognize a new type of property right e.g. restrictive covenant and native title

Restrictive covenants
Tulk v Moxhay (1848) 2 Ph 774
Recognition of novel proprietary interests

Property in a spectacle
Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 CLR 479 (HCA)
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (HCA)

Human bodies and body parts
Bazley v Wesley Monash IVP Pty Ltd SCt Qld
Moore v Regents of the University of California (1990) 793 P2d 479

Native title
Milirrpum v Nabalco Pty Ltd [1971] 17 FLR 141 (S&N 1.8, 3.80)
Mabo v Queensland (No 2) (1992) 175 CLR 1 (S&N 3.76C, 3.84)

Recognition and protection of new forms of property by Parliament
Intellectual Property rights
New Property rights in environmental goods eg Water Act, Forestry Rights Act
Cth Constitution s 51(xxxi) power to make laws in respect of the acquisition of property on just terms.
S 30 Land Acquisition and Compensation Act 1986 ( Vic.) can claim compensation if land acquired by State.
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20 provides that a person must not be deprived of
his or her property other than in accordance with the law