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LLB204 COMMERCIAL AND PERSONAL PROPERTY LAW (CPP) EXAM NOTES COMPLETE LATEST UPDATED GUIDE RATED A.
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LLB204 COMMERCIAL AND PERSONAL PROPERTY LAW (CPP) EXAM NOTES COMPLETE LATEST UPDATED GUIDE RATED A.
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LLB204 COMMERCIAL AND PERSONALPROPERTY LAW (CPP) EXAM NOTES
COMPLETE LATEST UPDATED GUIDE
RATED A.
, LLB204 Commercial and Personal Property
1. The concept of property
2. Traditional classification of property
3. The nature of personal property
4. The indicia of property rights
5. The bundle of rights concept
6. The importance of identifying property
WHAT DO WE MEAN BY PROPERTY?
• ‘Property’ refers to the legal relationship we have with a thing; it refers to a degree of power
that is recognized in law, as power permissibly exercised over the thing
• Our focus is not on the thing itself, but on our rights to it, and remedies that flow from those
rights
• Failure to do so will require the contending parties to seek judicial resolution
• Some examples of property rights
WHAT DO WE MEAN BY PROPERTY IS A RELATIONSHIP?
• If the facts required to prove a particular form of property can be established, the holder of
that property may be able to convince a third person of his or her superior legal position by
asserting and documenting that claim
• Failure to do so will require the contending parties to seek judicial resolution as to who is the
true owner, and, if necessary coercion by the state to enforce the rights of the true owner
• Thus, the ‘property relationship’ can only exist if there are rights in relation to an object or
thing, and society or the state is prepared to enforce those rights by granting remedies
• Some examples of property rights
o Chattels or goods: person in possession has property; rights arise from CL and
statute e.g., Sale of Goods Act 1896 (Qld) and the Australian Consumer Law in the
Competition and Consumer Act 2010 (Cth)
o Books: person in possession has property, but the author is the owner of the
copyright in the work and can prevent unauthorised copying of the work pursuant to
the Copyright Act 1968 (Cth)
TYPES OF PROPERTY
• Our next topic is the different species of property that are recognised by Australian legal
system
• 2 main branches:
o real property (land and interests in land)
o personal property (goods/ chattels)
• There are two different types of rights in relation to property
o Proprietary rights:
▪ rights ‘in rem’: enforceable against the world at large. e.g., rights in relation to
real property, such as land
o Personal rights:
▪ rights ‘in personam’ enforceable only against the person from whom you
derived the right. e.g. Pursuant to a legally enforceable contract
, • The taxonomy or broad subdivision of ‘property’ is depicted in the next slide
TRADITIONAL CLASSIFICATION OF PROPERTY
Traditional Classification of Property
o Chattels real: leaseholds
o Chattels personal: two types
▪ Chose in possession: tangible chattel goods (eg car)
▪ Chose in action: intangible personal (eg a share in a company or a debt);
cannot be physically possessed
o Fundamental difference between chose in possession and chose in action: whether
the ‘thing’ is ‘corporeal’ (can be physical possessed)
PERSONALTY
• Chattels real: leaseholds
o Subset of personal property referable to interests which through their association with
land have the attribute of immobility and makes them analogous to real property
o Limited and indeterminate duration
o Confined to leaseholds
• Chattels personal: two types – comprises any property other than real property or chattels
real
o Chose in possession: tangible chattel goods(eg car)
o Chose in action: intangible personal (eg a share in a company or a debt); cannot be
physically possessed
▪ Can only be enforced in a court of law
• Fundamental difference between chose in possession and chose in action: whether the
‘thing’ is ‘corporeal’ (can be physical possessed)
GOODS
• ‘Goods’: Goods are tangible, moveable and capable of possession
• But our taxonomy (like all taxonomies) gives rise to some difficulties of classification
• For example, land is not goods, but can crops be goods?
o Are minerals goods?
o Are fixtures goods?
o Is computer software goods?
• The classification of property is sometimes determined by statute
o Consider some statutory definitions of property:
▪ Sale of Goods Act 1896(Qld) defines “goods”:
• “includes all chattels personal other than things in action and money,
and also includes emblements and thing attached to and forming part
of the land which are agreed to be severed before sale or under the
contract of sale”
2
, ▪ Australian Consumer Law, s 2: “goods” includes:
• (c) minerals, trees, crops, whether on, under or attached to land or
not; and
• (d) gas and electricity; and
• (e) computer software
o Thus, despite the fact that computer software is the subject
of copyright ( a chose in action, rather than a chose in
possession), can be downloaded and is not capable of being
physically possessed, it is to be treated as ‘goods’ for the
purposes of the ACL and has all of the statutory rights and
remedies attached to that species of goods
THE INDICIA OF PROPERTY RIGHTS
• Next question is: How do we establish when a property rights exists?
• To answer this question we turn to the indicia of property rights
• ‘Property’ requires a degree of ‘control or dominion’ over the object
• In addition, all forms of property confer three primary rights:
1. Use and enjoy it
2. Exclude others from it
3. Alienate it
• Judicial authority for this approach - Blackburn J in Milirrpum v Nabalco Pty Ltd
o “I think that property in its many forms generally implies the right to use or enjoy, the
right to exclude others, and the right to alienate. I do not say that all these rights must
co-exist before there can be a proprietary interest or deny that each of them may be
subject to qualification.”
BUNDLE OF RIGHTS
• The three primary rights are sometimes expanded
• Bundle of rights
o To possess (exert physical control)
o To use
o To take benefit (receive income)
o To transfer or sell
o To exclude others (management power)
o To consume
o To modify or destroy
o To rent out or lease
• ‘Property’ does not require all rights to co-exist
• Yanner v Eaton where Mr Yanner used a traditional form of harpoon to hunt crocodiles in
QLD and was charged under s 7 Fauna Conservation Act 1974 (Qld) (FCA) – fauna =
‘property’ of the Crown; took fauna without permit pursuant to s 54; in HC it was held that
‘property’ in s 7 does not necessarily mean full and exclusive, beneficial ownership; concept
of property is bundle of rights; held that term in Act was no more than the aggregate of the
various rights Crown had to limit what fauna could be taken; held that Act did not extinguish
Yanner’s native title rights and outlined difficulty in identifying what fauna was owned by the
Crown (e.g did they own all migratory birds or every bird that has ever crossed the Qld
border)
• s7 Fauna Conservation Act 1974 (Qld) (FCA) – fauna = ‘property’ of the Crown
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