LLB301 Real Property Law 1. Week 2: Topic 1: Introduction to Land title 1.1. Lecture Property is a collection of rights including: • Exclusion • Alienation • Enjoyment Rights in Rem vs Rights in Personam Rights in Rem: apply to everyone, e.g. to exclude anyone from your house, Rights in Personam: are contractual, and against a specific party (which is why they cant be against anyone being a contract) Examples of interest in land: • Ownership (title) o Individual o Co-ownership • Lease • Mortgage • Easement Definition of Land: land includes messuages, tenements and hereditaments, corporeal or incorporeal, of any tenure or description, and whatever may be the interest in the land. (Acts Interpretation Act 1954 (Qld), Acts Interpretation Act 1901 (Cth)) Chattels vs Fixtures Fixtures: are annexed to the land which they sit Chattel: Chattel or Fixture? Decided by looking at the nature, degree and purpose of the annexation of that thing to the land. • Holland v Hodgson [1872] lR 7 CP328 • Hobson v Gorringe [1897] 1 Ch 182
• Leigh v Taylor [1902] AC 157 • Palumberi v Palumberi (1986) NSW ConvR 55-287 Park v Lasrado [2005] QSC 211 (this will not be assessed). Airspace "whoever's is the soil, it is theirs all the way to Heaven and all the way to hell" Cuius est solum, eius est usque ad coelum et ad inferos How far into airspace does the land extend? Was answered in Entick v. Carrington (1765). "By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing ... If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him." Lord Camden L.C.J. in Entick v. Carrington (1765) 19 St Tr 1029, at p 1066 Then asked what "ground" from this case is defined as. This was considered in Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479 (A man flew plane over a property and took photos of it, owner was unhappy). Maxim: Rights extending up to heaven? Court said this was unreasonable as satellites flying over shouldn't be a trespass, So instead, the court decided that your rights to a space of an owner of land extends to such height, quote, as necessary for the ordinary use and enjoyment of the land. Bernstein was unsuccessful in this claim. Decision coheres with decision from Graham v K D Morris and Sons [1974] Qr R 1 Campbell J: "I am persuaded that the over-hanging crane which, as the plaintiff says and I accept, is both an unsightly feature of her land and a cause of nervousness and apprehension to her, interferes with that part of the airspace above her land which is requisite for the proper use and enjoyment of that land." "Is a trespass, and not mere