LLB301 EXAM NOTES Page 1 of 82
PROPERTY 1.1 WHAT IS REAL PROPERTY? Property is a collection of rights Exclusion Alienation Enjoyment Real Property vs Personal Property Similarities ...: LA Comparable set of rights Relativity of title but important differences: Historical rules about land and land use from England Dramatic legislative impact in relation to land AA Rights in Rem v Rights In Personam 1.2 REAL PROPERTY: SOURCES OF LAW 1. Common Law - pertaining to real property 2. Equity 3. Statute: Property Law Act 1974 (Qld) Land Title Act 1994 (Qld) Land Act 1994 (Qld) INTERESTS IN LAND Ownership (title) Individual Co-ownership Lease > Mortgage Easement 1.2 WHAT IS 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) 1.3 INTERESTS IN LAND - Ownership (title) - Individual - Co-ownership
- Easement ( right to access or pass through the property) 1.3.1 LAND INCLUDES FIXTURES Depends on the degree and purpose of annexation · Holland v Hodgson [1872] IR 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 1.3.2 HOW FAR DOES LAND EXTEND INTO THE 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 Trespass Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479 Lord Camden L.C.J. in Entick v. Carrington (1765) 19 St Tr 1029, at p 1066: "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." 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." 1.5 How far do rights extend below the surface? Generally, only what is necessary for reasonable use and enjoyment ... Di Napoli v new Beach Apartments Pty Ltd (2004) ATR 81-728 (NSW case) Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35 (UK case Section 179 Property Law Act 1974 179 Right to support of land and buildings For the benefit of all interests in other land which may be adversely affected by any breach of this section, there shall be attached to any