Property Notes UQ

Estate in Fee Simple
The most complete or greatest interest that can be held in land (effectively total ownership). ‘In fee simple’ means that the estate can continue indefinitely.
– Corporeal hereditaments
tangible real property e.g. land and houses
– Incorporeal hereditaments
intangible real property e.g. right to take from land, easements
– Chattels real
? Leases
– Chattels in personam
? Choses in possession
? Choses in action
– Bernstein v Skyviews
? B owned estate, S owned plane and took photos of estate for profit. B unhappy. B says S is guilty of trespass and seeks damages.
? Held: No trespass. The rights of a landholder in the airspace above his/her land must be restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it.
Owner’s remedies when rights in airspace infringed?
Trespass or nuisance
Test for zone capable of enjoyment?
What is the zone capable of enjoyment? Is the intrusion of a nature and height which may interfere with any ordinary uses of the land which the occupier may see fit? (permanent rather than transitory cases)
Bernstein v Skyviews
What is nuisance?
requires damage; interference with right to use and enjoy, but needs no spatial interference with land.
What is trespass?
actionable without any proof of damage; requires direct infringement of the boundaries, and proof of intention.
Case for firing gun across property killing neighbours cat?

Tresppas or nuisance?

– Davies v Bennison:


? K sold tobacco from store; multi-story building beside with rival tobacco company’s sign. Sign protrudes 8 inches over his store. Held to be trespass, injunction granted.
– Kelsen v Imperial Tobacco:
? Crane swings over land. Building company admitted trespass, offered money. After a refusal to grant more money, neighbour sought an injunction. Court recognised trespass but suspended an injunction to allow the building to be completed.
– Wollerton & Wilson v Richard Costain:
? D proposed to build driveway over his land to a 2nd property behind the land. Each landowner owned roadway in front of land subject to covenant only to use it as a private garden. Court refused to grant injunction as it would be oppressive to defendant and awarded damages in lieu.
– Jaggard v Sawyer
? Jib of crane suspended over P’s house. Held to be trespass.
– Graham v KD Morris:
? Building works encroaching upon airspace above adjacent land. Constituted trespass is they would interfere with the use and enjoyment of land which the occupier may see fit to undertake.
– Bendal v Mirvac:
Explain rights under land
– The landowner does have a right to use and enjoy the soil to the extent that is required for the reasonable use and enjoyment of the land.
Explain rights of minerals
? Statute abrogated common law right to all minerals. Ownership in minerals is vested in the Crown. Licences from the Crown are required to mine and/or extract minerals and petroleum.
? Mineral Resources Act 1989: Gold and silver vested in crown (s8(1)); as well as other minerals (s9).
? Petroleum Act 1923 s 9: All petroleum on or below the surface of the land is property of the Crown
Explain most recent ruling on water rights.
1) Natural features of land now represent water boundaries
2) For tidal boundaries this means the boundary is NOT the high water mark
3) For non-tidal watercourse boundaries this means a focus on the natural features of the bank rather than on the flow of water
4) Generally, the ambulatory boundary of all lots will be the feature as identified on the current survey plan. Changes will only occur when a new survey plan is made.
What is doctrine of accretion?


– In relation to natural boundaries i.e. riparian boundaries, the doctrine of accretion or erosion applies. The slow alteration of physical boundaries results in a change of boundaries at law.
– Common law rule (Verrall v Nott):
? JH owned land bounded by the sea. Built solid retaining wall, stakes driven into foreshore to prevent erosion. Main cause of the land build up was the retaining wall – deliberate reclamation of land.
The doctrine applies only if the accretion was formed in the course of nature – this was deliberate reclamation works.
AG of Southern Nigeria v John Holt
? Even if the boundary/reclaimed land is the result of artificial works, the landowner gets the additional land if the accretion is unintentionally assisted by the artificial works.
? Verrall v Nott:
? Held: Doctrine of accretion applies in Australia. The doctrine applies to an inland lake. It applies to Crown leasehold land. It applies where there is windblown sand. It applies where the accretion is gradual and imperceptible. It applies whether or not the grant is accompanies by a map showing the boundary, or contains a clause stating the area.
? Southern Centre of Theosophy v SA:
How are rights of chattels/fixtures determined for vendor and purchaser of land?
The contract of sale passes fixtures as part of the realty. The seller loses the right to keep the fixtures once they sign a binding contract of sale
How are rights of chattels/fixtures determined for beneficiary under will and the personal rep of the deceased’s estate?
Fixtures pass with the realty. The devisee is the beneficiary to the realty – fixtures pass to the devisee.
How are rights of chattels/fixtures determined forLandlord and tenant:
In some circumstances, the tenant can remove the fixtures.
How are rights of chattels/fixtures determined for Mortgage of land:
Mortgage includes all fixtures at the date of the mortgage as well as any fixtures attached during the mortgage
How are rights of chattels/fixtures determined for Life tenant and remainder person:
If the LT affixes chattels so that they become fixtures, they pass to the person entitled to the realty. They do not go to the life tenant’s estate.
First test of fixture?
Degree of Annexation.

a) Connection with land
b) Mode of annexation to the land?
– If item is securely fixed, and so affixed it cannot be detached without damage, there is strong evidence it is a fixture.
– Light fixing supports inference that it was not intended to be permanent.
– See APA v Coroneo

Second test of fixture?
Object/purpose of annexation.

a) consider all circumstances (intended time/duration)
b) Better use test
c) Object of annexation.

What is the better use test?


– Is the annexation for the better use of the object as an object (then chattel); or for the better use of the land as land (then fixture)?
– What is the nature of the time and what is to be done with the item?
– What are the economic consequences of finding the chattel is a fixture?

Reid v Smith


Hobson v Gorringe – issues?
1. Fixture issue:
? The engine was a fixture because of the degree and object of annexation. The engine was therefore subject to the mortgage.
? The Court said that the test was objective. Rejected view that the hire/purchase agreement allowed the engine to remain a chattel.

2. Priority issue between parties:
? A prior equitable interest will be defeated by the holder of a bona fide legal estate for value, without notice. H’s equitable right of removal was defeated by the legal interest of G as mortgagee.

– Can look to the prevailing community standard for objective intention
Reid v Smith
– Some authorities suggest that the subjective intention may be relevant in indicating things such as the time period of fixation and the purpose of its annexation
May v Ceedive
Explain bona fide legal estate for value, without notice.
Hobson v Gorringe

? A prior equitable interest will be defeated by the holder of a bona fide legal estate for value, without notice. H’s equitable right of removal was defeated by the legal interest of G as mortgagee.

However, recourse to subjective intention should not be allowed to prejudice the rights of 3rd parties who would be unaware of such intentions

Explain BOP standards in fixtures.
a) Affixed – BOP on party proving it is not a fixture
b) Not affixed – BOP on party proving it is a fixture
Explain the tests from APA v Corneo
1) affixed by means other than own weight;
2) permanence with intention for indefinite/substantial period of time;
3) better enjoyment of land or just to steady object. subjective intention important
4) if securely affixed, is it so affixed that it cannot be detached without doing substantial damge.
Timber house, stand on brick/timber posts.

Fixture? Why?

Reid v Smith.

Prevailing community standard to determine objective intention.

? D installs air conditioning units on roof of building. A chiller (part of the unit) stands by its own weight on a platform built for it – n.b. the chiller is connected to the water reticulation system of the building.
– Belgrave Nominees v Barlin-Scott Air Conditioning (1984):

HC held that the intention was permanent affixing. It was connected to this water system; all individual parts, although able to be removed, were to be considered as a whole.

– Hawkins v Farley (1997):

Prevailing community standard. Forms part of whole system.

Cf fridges.

Shed fixture.
– Empire Securities(2008)
Chandelier fixture.
– Park v Ladrado
Move away from degree/mode of annexation towards object/purpose (more intention based). Applying surrounding facts in detail. Stove a fixture; venetian blinds/TV antenna chattels.
– Palumberi v Palumberi
Fibro home at exhibition for 12 months, welded to steel plates. Fixture.
– Wellsmore v Ratford
Printing presses (45 tonnes; attached by bolts) not fixtures. Annexation
– Attorney General v Cth:
– Pipes laid underground become part of the land
North Shore Gas Co v Comm.of Stamp Duties
Explain removal of tenant’s fixtures.
A tenant has a right to remove “tenant’s fixtures” which were attached for the following
• Trade,
• Ornament, or
• Domestic purposes.

What if contract specifies no removal of tenant’s fixtures?

Can a tenant remove lessors fixtures?
A tenant cannot remove “lessor’s fixtures” (fixtures which become part of the structure i.e. doors and windows) Sebea v Territory of Papua.
Explain when tenant’s fixtures must be removed.
Removal must occur prior to the term of the lease ending or while the tenant remains lawfully in possession

(NZ Government Property Corp v HM)

Exceptions to tenant’s fixtures removal?
Agricultural tenants, retail shop tenants (s45 RSLA), residential tenants (s117-119 RTA).

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