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Laws 301 Property Law notes (first test) _ ( DETAILED ANSWERS) 2024 (618791) - DISTINCTION
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Laws 301 Property Law notes (first test) _ ( DETAILED ANSWERS) 2024 (618791) - DISTINCTION
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8/1/24, 11:53 AM 1/8 Laws 301 Property Law notes (first test) Jeremiah Terms in this set (65) What is Property law? Property law is the legal rules that relate to physical things What two questions does property law deal with? (i) who is entitled to use a thing?; and (ii) how are they entitled to use it?" Ben McFarlane The Structure of Property Law (Hart, Oxford, 2008) What is real property? Real property concerns rights in land. The remedy you will usually get for Real Property is the land back, or the right in forced that you want in relation to the land such as 'right of way' What is personal property? All property that is not real property/property in land. Tangible things such as chattels and intangible things such as debt and intellectual property. The remedy for infringements of personal property is usually damages What is the bundle or rights approach? Law recognises the biggest bundle of rights relating to a thing as property. Can take or add sticks to the bundle as a way to regulate people's rights. Difference between personal rights and property rights? Personal rights are only enforceable against a limited number of people (parties to a contract) Property right is a right in relation to an asset which is enforceable against persons generally. Binds strangers to its creation. What is In Personam? Means over persons: just another way to say personal rights against another person What is In Rem? Another way of saying a property right is in relation to things and it applicable to everyone What is numerus clausus? Numerus clausus is a closed list principle in relation to property rights. Only certain rights can be property rights (Hill v Tupper) 1) Have to look at the transaction the parties intended and 2) whether they complied with any formalities for creating the property right such as registering it or putting it in writing. 8/1/24, 11:53 AM 2/8 How important is numerus clausus today? Numerus clausus still exists. Argument that it is not as important now as we have a registration system for land where all the rights that the land is subject to is noted on it. Elias J in Escrow Holdings uses this argument to show that any property rights burdening the land are on the title (so can use a covenant and not an easement for right of access) However it restricts the amount of property rights that exist which is important as they bind the whole world which. The restricted list allows for understanding and knowledge of what rights that land would be subject to. Less research required and less lawyers costs. Bigger investigatory burden if anyone could make up these rights. Increased transaction costs would stifle commerce. So numerus clausus still effect pre-transactional efforts and makes things simpler to understand. Does Escrow Holdings overturn Numerus Clausus in NZ? No. It does not overturn it. Right of access is already a recognised property right. The Plaintiffs in Escrow Holdings just went about creating it in the wrong way. They should have used an easement instead of a covenant. This is different from Hill v Tupper where the exclusive right to boating had not been recognised before. What does ownership mean? Ownership is the greatest possible interest in a thing which a mature system of law recognises. Owners can Possess, Use, Manage, Get Capital, Have Security and there is no duration of term. Is there property in the human body? No. The common law recognises that there is no proprietary rights in the human body or its parts. However Doodewood v Spence carved out an exception where skilled work and care can change the nature and the body so it becomes a thing that you can generate a property right from. This view however has been rejected by Yearworth and Lee v Long calling it nothing short of outrageous. What is possession? Possession is the intention and exclusive control of a thing. Law places an emphasis on a better right to possession rather than on ownership Test for Possession Need to prove that they are the finder or the occupie r: 1) Has physical control (factual analysis) - Have they taken/hidden/locked or taken the key? 2) Intention to possess (from their actions) - what did they do to show they wanted possession? Once a person has acquired possession they thereby have a better title to anyone apart from those who have a better right to possession.The benefits of buying summaries with Stuvia:
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