LLB2220 – Property Law

Week One Lecture Notes

The Nature of property and property law
Types of property;
Real property
- Tangible objects e.g. land and buildings
- Intangible property interests e.g. easements
Personal property
- Tangible objects e.g. book, car, phone
- Intangible property e.g. shares, bank account, copyright, patents
- Copyright and Patents are known as ‘intellectual property’

Gaining private property rights

Many ways to gain private property rights;
- Contracts of purchase, leases, mortgages
- Gifts/inheritance
- Trusts
- Finding
- Creation (i.e. intellectual property)
- Legislation
Limiting and curtailing private property rights
The law can limit people’s ability to gain property rights;
- Historically, married women
- Today, ‘foreign persons’ (See Foreign Acquisitions and Takeover Act 1975 (Cth))
The law can also encourage and discourage persons from gaining property rights with
taxation or incentives
Property rights may be curtailed by other areas of the law

Sources of property law

- Property law derives heavily from English common law
- But it now also is heavily governed by domestic legislation
o Land law in NSW;
 Real Property Act 1900 (NSW)
 Conveyancing Act 1919 (NSW)
- Some property rights created by statute, rather than deriving from the common law
(e.g. copyright)
Why does property matter?
- Property is relevant to everyday life
- Human activity takes place in a physical space
- We deal in property on a daily basis;
o Buying or borrowing items
o Photocopying pages from a textbook
o Going home to a leased house or unit
- ‘There is nothing which generally strikes the imagination and engages the affections
of mankind, as the right to property’ – Sir William Blackstone quoted in Gray, 4
 - Property has political, social, economic, environmental, cultural and emotional
importance (Gray, 4)
- The property rights you acquire affect the course of your life
o Owning, leasing, mortgaging, investments
- Historically, property ownership has been linked to social status, power and
entitlements (e.g. the right to vote)
- International law – property recognised as fundamental human rights
o UDHR Article 17
 1. ‘Everyone has the right to own property alone as well as in
association with others.’
 2. ‘No one shall be arbitrarily deprived of his property.’
- Environmental importance
- Cultural importance
o Indigenous persons – cultural connection to land
- Emotional importance
o It’s not a house, it’s a home’ (The Castle)

How does Property law relate to other areas of the law?

Contract law;
- Transfer of property
Torts;
- Proprietary torts
- Liability based on ownership of property
Criminal law;
- Crimes (e.g. Theft, fraud, waste dumping)
- Searches of property
Environmental and planning law;
- Restricts what you can do with your property
- Requirements for approvals, licences etc
- Compulsory acquisition
Administrative law;
- Challenging decisions made by government (e.g. Installing listening devices)
Constitutional law;
- Acquisition of property ‘on just terms’
Other property-based areas of law;
- Wills and estates
- Family law
- Taxation

What is property?
Property as a ‘thing’
- Everyday life, property is often referred to as a thing – a physical object or intangible
item
- The objects we call property would still exist if they were not ‘owned’
- To a lawyer, one way to describe property is a set of rights attaching to a tangible or
intangible thing
Property as a bundle of rights
 What are the elements of the bundle of rights?
- Black stone:
o Dominion/control
o Right to exclude others
o ‘the external things of the universe’
o But, Gray also notes elements of the right to transfer (alienate) (at 7)
- Honorés Bundle of Rights (11 elements – see Gray 8-9), including:
o The right to possess i.e. control
o The right to use or enjoy
o The right to exclude others
o The right to transfer
Milirrpum v Nabalco Pty Ltd (1971) 171 FLR 14
(Gove Land Rights Case)
- Decision pre-dates Mabo v Queensland (No 2) (1992) 175 CLR 1
- The Yolgnu people in Arnhem Land claimed traditional lands on the Gove Peninsula
- Nabalco P/L had a mining lease granted by the Cth
- Blackburn J:
o Yolgnu people had a system of law
o The nature of the relationship to the land was not proprietary in nature
because under traditional customs the land could not be alienated, nor was
there a right to exclude others.
Compare to Mabo (No 2) per Brennan J at 36 (see Gray, 32)
- ‘Whether or not land is owned by individual members of a community, a community
which asserts effectively that none but its members has any right to occupy or use
the land has an interest in the land that must be proprietary in nature: there is no
other proprietor. It would be wrong… to point to the inalienability of land by that
community and, by importing definitions of “property” which require alienability
under the municipal laws of our society… to deny that the indigenous people owned
their land.’
Dorman v Rogers (1892) 148 CLR 365
- Is the right to practice as a medical practitioner a property right?
- No property in right to practice in the medical profession
- Per Gibbs CJ (at 367)
o ‘What is valuable is the person’s own earning capacity, which is personal to
him. The right is, of course, not transmissible, and the financial consequences
of possessing the right will depend on the skill, ability and fortune of the
individual concerned.’

What are the consequences of something being ‘property’?

- Property rights ‘are enforceable against all the world’ (Gray, 3)
o Contracts – enforceable against other parties to the contract
- If something is your property, you are protected by civil and criminal law
- Your property rights are enforceable via the courts
o In civil law such as property aw, torts – your rights are enforceable by you as
the individual
o In criminal law – enforceable by the State
- Compare also the available remedies
 o In property law – for land (‘real property’) restoration of ‘the thing’ – land is
‘unique and valuable’ (Gray, 3)
o In contract law – generally damages

Justifications for Property – Theory for property

- Numerous justifications have been proposed
o Labour theory
o Utilitarian theory
o Economic
o Justice and Equality
o Feminist approaches
o Pluralist theory
Labour Theory (John Locke)
- John Locke – philosopher (17th Century)
- Creation of wealth through labour = entitlement to that wealth
- Grounded in natural rights
- Anyone could gain property rights through their labour
- Weaknesses?
o Problems of finite resources/overexploitation, inequality and applicability to
modern circumstances
Utilitarian Theory (Bentham)
- ‘The objective of all human beings is to maximise their own happiness’ (Gray, 17)
- Possessing and consuming property = happiness
- Law provides security and protection for property  property and industry will
prosper
- Concerns / Questions
o Can law maximise happiness?
o Should it do so at the expense of some members of society?
Economic Theory
- ‘Efficiency and wealth maximisation’ (Gray, 18)
- Protection of ownership
- Ability to transfer property ownership – free market encourages efficient use/best
use of resources
- Private property encourages investment and therefore economic development and
greater wealth maximisation
- Questions to consider
o Does this foster inequality?
o Is the highest economic use the most beneficial for other private property
holders / the community as a whole?
Justice and Equality
- E.g. Karl Marx
- Private property / capitalism ‘a tool of oppression’, not wealth maximisation (Gray,
21)
- Power imbalances – property owners / employers vs workers
- Workers labour, but employers / property owners recap the benefits of their labour
i.e. profits  exploitation
- Marx suggested communism (communal ownership)
 - Criticisms
o Does it result in justice and equality?
o It discourages investment
Feminist Approaches
- Number of different arguments / approaches / criticisms of other theories / systems
of property law
- E.g. is labour theory ignorant of women’s traditional / historic role of domestic life
Pluralist Theory
- Is a single theory to justify property required?
- Can we combine the strengths of multiple theories to reduce / balance out their
weaknesses

How far should the concept of property extend?

We consider three examples;
- Is there property within;
o The human body?
o A spectacle?
o A dance move?

People as property
Chattel slavery;
- People were considered a form of personal property (a chattel)
- Could be owned, bought and sold by another person
Slavery now considered abhorrent
Universal Declaration of Human Rights, Article 4;
No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms
Criminal Code (Cth) s 270.2:
Slavery remains unlawful and its abolition is maintained
Is there property in a living body?
R v Bentham [2005] 1 WLR 1057
- Living body is not capable of being owned
- Charge of possession of a firearm
- Hand under a coat to simulate a firearm to rob someone
- Unsevered hand could not be possessed as it was part of the body – had no
independent existence:
‘One cannot possess something which is not separate and distinct from
oneself. An unsevered hand or finger is part of oneself. Therefore, one
cannot possess it… What is possessed must under the definition be a thing. A
person’s hand or fingers are not a thing.’ (Lord Bingham, 8)
Is there property in the work and skill of a human body?
Doodeward v Spence (1908) 6 CLR 406
- A ‘two-headed child’ was stillborn in New Zealand in 1868
- Doctor took the body and kept it preserved in a bottle in his office
- After the doctor’s death, his effects were sold at auction including the body
- The owner (Doodeward) exhibited the bottle and the body commercially. It was
seized by the police
 - Action in conversion and detinue, seeking return of the body
o Conversion – an act intentionally done inconsistent with the owner’s right to
possession – this requires interference with property
o Detinue – Withholding goods afer a lawful demand for their delivery is made
- Griffiths CJ:
o ‘When a person has by the lawful exercise of work or skill so death with a
human body or part of a human body in his lawful possession that it has
acquired some attributes differentiating it from a mere corpse awaiting
burial, he acquires a right to retain possession of it.’
- Court noted bodies in museums and medical cadavers can be property
Is there property in the living tissue – non regenerating tissue of the human body?
- Non-regenerative tissue (organs, limbs)
- Moore r Regents Of the Univerity of California 793 P 2d 479 (1990)
o 1976 – Moore treated at UCLA Medical Centre – samples taken and spleen
removed
o Cells taken from spleen were used to develop a cell line patented by
Respondent
o Moore was asked to return for follow up appointments and provide
additional samples
o Cell line – estimated to be worth $3 Billion
o Moore claimed breach of fiduciary duty by the treating doctor
o Claimed conversion
o Moore claimed a proprietary interest in his cells and ‘each of the products
that an of the defendants might ever create from his cells or the patented cell
line’ (Panelli J)
o The court held Moore had no proprietary interest in his cells
- Roch v Douglas (2000) 22 WAR 331
o Tissue sample preserved in paraffin held to be property
Property in a spectacle?
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
- Neighbour of racecourse permitted broadcast of races/results from viewing platform
on their land
- Did the racecourse owners have a proprietary right they could sue upon?
- Suit failed – no property in a spectacle
Property in a dance move?
Should royalties be paid to the initial creator of a move for reasons of intellectual property
Week 2 Lecture Notes

Real Property; This includes land and anything annexed to land

- Corporal hereditaments
o Tangible objects
 ‘Rights to the land itself’
- Incorporeal hereditaments
o Intangible interests
 ‘Rights over the land’
Personal Property; Anything other than land, plus leases
- Chattels real
o Leases
- Chattels personal (pure personality)
o Chose in possession
 Tangible personal property
 Laptop / Fridge / Car / Jewellery
o Chose in action
 Intangible personal property
 ‘Personal rights of property which can only be claimed or
enforced by action, and not by taking physical possession’
o Torkington v Magee; Peter Radan and Cameron
Stweart Principles of Australian Equity and Trusts (Lexis
Nesix, 3rd ed, 2015), 82
Land – Limits Boundaries and Protection
Land in Three Dimensions
What constitutes land?
- Land (including buildings, vegetation)
o Further, the airspace and subsoil
- Cuius est solum eius est usuqe ad coelum et usuque ad inferos
o ‘Ownership of land extends up to heaven and down to the centre of the
earth’
- Often cited, not fully endorsed by the courts
- Land title and original Crown grant will define the piece of land
o May limit its extent upwards or downwards

Relevant Torts of Land

Trespass
- Requires actual physical entry onto land in the possession of another which is
intentional and unauthorised
- Trespass can be committed by a person or an object entering land
- May occur if entry was with permission, but permission is withdrawn
- Requires direct interference
- Defences of honest and reasonable mistake of fact and necessity not available
- No need to prove damages
Nuisance
- Unlawful interference with another person’s use or enjoyment of land
o May be indirect (noise or smells)
o Requires proof of damage

Intrusions into Airspace

- Airspace can be intruded upon temporarily or permanently
o Powerlines
o Construction cranes
o Overhangs from other property
o Airplanes
o Hot air balloons
o Drones
- Not all intrusions will be unlawful
o Easements

Temporary Intrusions;
- Previously: law distinguished between something passing through airspace and
something touching the land
- No longer followed (Davies v Bennison (1927) 22 Tas LR 52)
o Temporary intrusions can be trespass

Permanent Intrusions;
- Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334
o Kelsen leased a one-story shop
 o Defendant had a three story building next door
 Sign on the building overhung Kelsen’s land by 8 inches
o Court issued an injunction based on trespass requiring sign to be removed

Property Boundaries in Airspace;

British Case;
Bernstein v Skyviews and General Ltd [1978] 1 QB 479
- An airplane flying ‘many hundreds of feet above the ground’ found not to be
trespassing
- Owner’s rights extend ‘to such height as is necessary for the ordinary use and
enjoyment of his land and the structures upon it’
- Beyond height of ‘ordinary use and enjoyment’ landowner has no more rights than
the rest of the public
‘The problem is to balance the rights of the owner to enjoy the use of his land against the
rights of the general public to take advantage of all that science now offers in the use of
airspace. This balance is, in my judgement, best struck in our present society by restricting
the rights of an owner in the airspace above his land to such height as is necessary for the
ordinary use and enjoyment and the structures upon it and declaring that above that height
he has no greater rights in the airspace than any other member of the public’ – Griffiths J

NSW Legislation; (Strict Liability Provision)

Civil Liability Act 2002 (NSW) s 72(1)
- ‘No action lies in respect of trespass or nuisance by reason only of the flight (or the
ordinary incidents of the flight) of an aircraft over any property at a height above the
ground that is reasonable (having regard to wind weather and all the circumstances
of the case) so long as the Air Navigation Regulations are complied with.’
Civil Liability Act 2002 (NSW) s 73(1)
- ‘Where material loss or damage is cause to any person or property on land or water
by, or by a person in, or an article of person falling from, an aircraft while in flight,
taking off or land, the unless the loss or damage was caused or contributed to by the
negligence of the person by whom it was suffered, damages in respect of the loss or
damage are recoverable without proof of negligence or intention or other cause of
action, as if the loss or damage had been caused by the wilful act, neglect, or default
of the owner of the aircraft.’
See also the Damage by Aircraft Act 1999 (Cth)

Drones;
- Also known as unmanned aerial vehicles or remotely piloted aircraft
- Use of drones may result in trespass into airspace
o LJP Investment test below
- The Commonwealth Civil Aviation Safety Authority (CASA) regulates the use of
drones

Boundaries of Construction and Cranes

A construction crane 50 feet above a building was found to be trespass
- Woollerton v Richard Costain Ltd [1970] 1 WLR 411
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
 - Scaffolding extending onto LPJ’s land from building work next door
- ‘The relevant task is not whether the incursion actually interferes with the occupier’s
actual use of land at the time but rather whether it is of a nature and at a height
which may interfere with any ordinary uses of the land which the occupier may see
fit to undertake.’ – Hodgson J
Remedies?
- In Wollerton, injunction delayed until after construction finished
o Building was public work, but case now of questionable authority
- Usually in Australia, an injunction will be granted, but see LJP Investments
o Injunctions = discretionary remedy
o May be refused (if delay in proceedings or injury is small and offer of
payment made bearing relationship to profit/savings of trespasser and that
offer is unreasonably refused)
o In LPJ there was no way to calculate the profit/savings gained from the
trespass so an injunction was granted
o Under s 88(k) of the Conveyancing Act of NSW permits the court to grant an
easement to allow building work to continue

Boundaries Extending Underground

How far underground do property rights extend
- Likely not to the extent of ‘to the centre of the earth’
- Rare caselaw

Passing through a cave tunnel 350 feet (107m) underground = trespass

- Edwards v Sims 24 SW 2d 619 (Ky 1929)
Star Energy Weald Basin Ltd v Bocardo SA [2011] 1 AC 380
- English Supreme Court said underground not analogous to airspace
o Prevented petroleum extraction at 2,800 feet (~850m), thus trespass
- ‘There must obviously be some stopping point, as one reaches the point at which
physical features such as pressure and temperature render the concept of the strata
belonging to anybody so absurd as to be not worth arguing about. But the wells that
are at issue in this case… are far from being so deep as to reach the point of
absurdity. Indeed, the fact that the strata can be worked upon at those depths point
to the opposite conclusion’ – Lord Hope

Rights to Minerals
At common law;
- Minerals belong to land owner
- Exceptions belong to the Crown (under the royal prerogative)
o Gold
o Silver
- Important to check wording of original Crown grant and any relevant legislation
- In original Crown grants, if other minerals not reserved, they belong to the land
owner
- Since 1861 all minerals required to be reserved to Crown
- In NSW today, many types of minerals have been subsequently reserved by statute
o Coal Acquisition Act 1981 (NSW)
Natural Rights
- ‘Inherent features of ownership’
- Rights of support
o Right to have the physical support of the land in its natural state maintained
 Neighbours will be liable for damages if they remove support through
excavation
 Does not apply to construction on the land
o Altered by statute in NSW
 Conveyancing Act 1919 (NSW) s 177
 Creates a duty of care in negligence
o ‘A duty of care not to do anything on or in relation to
land’ removing support. Extends to buildings on land
- Riparian rights
o The right to have waiter in a river or stream on the land continue to flow,
subject to upstream users’ rights
 Riparian rights eliminated by statute in NSW
o Water Management Act 2000 (NSW)
 Rights to all water in rivers, lakes and below ground belong to the
Crown (s 392)
 Landowners have statutory rights to take water for domestic
consumption and to water livestock (s 52)
 Other uses require an access licence or other specified approval

Boundaries
Artificial boundaries
- Determined in relation to some fixed point
o Determined by the terms of the original Crown grant, survey pegs, evidence
of occupation (fences) etc
Natural boundaries
- Determined by a feature of the physical world
o River or tidal boundary at the beach
- Natural boundaries may shift
- Types of Natural boundaries
o Tidal water
 Line is the mean high-water mark
 Land below that mark is owned by the crown
o Non-tidal water boundaries (e.g. rivers)
 Common law; land owner held land up to the middle line of the river
 Determined in relation to established banks, not current flow
o Crown Management Act 2016 (NSW) s 13.3
 No access or use to a river or lake on the boundary of land
o Accretion or erosion land bounded by water may occur, thus, the legal
boundaries will change with the physical if the change is gradual, not sudden
Fixtures and Chattels
Personal Property v Part of the land
- A chattel is personal property
- Chattel – Chose is possession
o A chose is literally a thing
o A chose in possession is a thing you can possess
- A chattel becomes a fixture by being annexed to the land (when a chattel is annexed
to the land it becomes part of the land (Real property))
o Quicquid plantatur solo, solo cedit
 ‘What is affixed to the soil becomes part of the soil’ (Minshall v Lloyd
(1873) 2 M&W 459, 459)
o E.g. a plank of wood = a chose in possession
 The plan of wood is used to construct a deck on land = becomes a
fixture
Key;
2 elements of the test for distinction between chattel and fixture
- The second element is more important
- Rebuttable presumptions
- Work through the elements numerically
o Be distinct about the tests, do not provide elements of intent in the primary
test

Why it matters
Sale of land: Fixtures pass with the land whereas chattels do not
- Note; contract of sale can provide otherwise if the fixture can be lawfully removed
Inheritance: different beneficiaries may be entitled to a person’s land (including fixtures) vs
chattels
Mortgages: fixtures are part of the security
Tenants: lessees and life tenants
- Who is entitled to fixtures when they leave or die
o If something has become a fixture, and it previously belonged to another
person, property passes to the land owner

The Test to determine whether something’s a chattel or fixture

Two tests (Holland v Hodgson (1872) LR 7 CP 328)
- The degree of annexation, and
o Physical test
o Looks at whether or not, there is annexation or fixation to the land
 If the item rests on its own weight and is not attached at all – Chattel
- The object or purpose of annexation
o The objective intention with which the item was affixed
 Looks at the circumstances to determine the intention
 Time
 Fixer
  Permanence
 Benefit the land or item solely
 Whether or not removal would cause damage
 The degree and mode of affixation
The most important test is the second – intention
- Palumberi v Palumberi (1986) 4 BPR 9106, 9110
o ‘There has been a perceptible decline in the comparative importance of the
degree or mode of annexation, with a tendency to greater emphasis being
placed upon the purpose or object of annexation, or; putting it another way,
the intention with which the item is placed upon land. This shift has involved
a greater reliance upon the individual surrounding circumstances of the case
in question as distinct from any attempt to seek to apply some simple rule or
some automatic solution.’ – Kearney J
Further Cases;
- Belgrave Nominees Pty Ltd v Barlin-scott Airconditioning (Aust) Pty Ltd
o The air conditioning units were fixtures, the pipes and cables leading to them
being connected to the building

Week 3: Land Law in Australia

Australia’s system of land law is basdon on:
- Common law and statutes inherited from England
o Adapted to Australian conditions
o Developed over time  Australian common law and legislation
- Native title
A historical understanding is important in understanding the system of land law today

Doctrine of Tenure
1066: Norman Conquest of England
- William, Duke of Normandy, invaded and won the battle of Hastings
- Became the first Norman king of England, replacing the prior Anglo-Saxon kings
- Many Anglo-Saxon nobles continued to hold land, swore fealty to William
- Land also redistributed
- Feudal system of land holding – land granted, but service owed in return
Evolution to Tenure
- Only the Crown had allodial title (absolute ownership)
- Others held more limited interests (estates in land)
o Originally with attached services and incidents
- All land belonged to the Crown but was granted back to nobles, who then distributed
grants to others
- All land held ‘of the Crown’
o Crown absolute beneficial owner of all land in the kingdom
- Had been called a legal fiction (see Brennan J in Mabo (No 2))
British Sovereignty: Terra Nullius
- Penal colony established in 1788
- British claimed sovereignty by ‘settlement’
- International law allows sovereignty to be acquired by;
o Conquest
o Cession: transfer of territory from one state to another
o Settlement of territory that was terra nullius = ‘land belonging to no one’
(unoccupied)
o Land could be considered vacant where the inhabitants were considered ‘so
low on the scale of social organisation that their usages and concepts of
rights and duties are not to be reconciled with legal ideas of civilized society’
(Re Southern Rhodesia (1919) AC 211)
Reception of British Law and the Doctrine of Tenure in Australia
- Doctrine of Reception
o Australian Courts Act 1828 (Imp) s 24
 All statutes and common law in force in England were applicable to
New South Wales, so far as they could be applied and with
modifications to be made as necessary
- This included the principle that all the lands of Australia were vested in the Crown:
Attorney-General (NSW) v Brown (1847) 2 SCR (NSW) App 30
o Courts considered Crown held absolute beneficial ownership (overturned in
Mabo (No 2))
- Land was granted under ‘Crown Grants’, based on the doctrines of tenure and
estates
o But no services attached
- Other ‘forms of tenure’ developed specific to Australia e.g. pastoral leases
Doctrine of Tenure in Australia
- Doctrine of tenure
 o Crown = ultimate owner of all land, has absolute beneficial ownership
o All other “owners” of land hold only more limited interests in the land
(estates), granted to them by Crown (no allodial title)
- Doctrine of tenure foundational in Australian common law (Mabo (No 2))
- But, Crown does not hold absolute beneficial ownership, but rather radical title
o Ability to grant interests in land to others and acquire land
o Note: today, crown grants are made in accordance with Crown lands
legislation: see Crown Land Management Act 2016 (NSW)
- Native Title:
o Recognised by common law, but not part of the doctrine of tenure
o A form of allodial title
Doctrine of Estates
- Under the Doctrine of tenure:
o Crown can grant more limited interests in land = estates
- Estates ‘refer to the right to “hold” the land, or to have possession of it, to the
exclusion of others’ (Brendan Edgeworth, Butt’s Land Law (Thomson Reuters, 7th ed,
2017) 106)
- Under the doctrine of estates, interests in land can be fragmented in time
- Freehold estates
o Fee simple
 The ‘largest estate in land’ (Continues indefinitely)
 For practical purposes, equivalent to complete ownership
 Interests can be disposed of;
 During lifetime (inter vivos), or
 On death: by will, or by passing to one’s heirs if die intestate
(without a will)
 Example wording;
o ‘To A in fee simple’
 Fee = can be inherited: simple = unrestricted as to which heirs can
inherit
o Fee tail
 An estate that could be passed to lineal heirs only (usually male)
 Created by words such as
 ‘To A and the heirs of his body’
 Fee tail would continue as long as there was a direct line of descent
 If the fee tail ended, the estate passed back to the grantor of their
heirs
 Abolished in NSW: Conveyancing Act 1919 (NSW) ss 19, 19A
 Existing fee tails became free simple estates
 Attempts to create a fee tail create a fee simple
o Life estate
 Ordinary life estate (‘To Amy for life’)
 Estate in land that lasts for the life time of the person who
holds it
o Life estate ends on death of life tenant and the estate
reverts to the grantor / their heirs
 o Alternatively, the estate might pass to a specified
remainder person (‘To Amy for life, remainder to Henry
in fee simple)
 Pur autre vie life estate
 The term of a life estate is determined by the life of a person
other than the holder of the life estate
 Arises either through
o Terms of the original grant e.g. ‘To Amy during the life
of Clive’; or
o If life tenant has transferred their life estate to
someone else e.g. grant ‘To Amy for life’; Amy transfers
her estate to Deidre
 Holder of a life estate can alienate (transfer) the
interest, but estate will still end on the death of
the person stated in the original grant whose
life the estate is being measured against (the
cestui que vie) – here Amy
 Corporations can only hold a pur autre vie life estate
- Leaseholds

Determinable and Conditional Interests

- An estate might be absolute e.g. ‘To A in fee simple’
- Or it may be determinable or conditional
- Determinable estate:
o Duration of the estate is limited by an event that may/may not occur
 ‘To A in fee simple until she ceases to be a doctor’
o Estate automatically determines and reverts to grantor on happening of
event
o Grantor only has a ‘possibility of reverter’ – the event may not happen
o Indicative phrases;
 ‘Until’, ‘During’, ‘While’, ‘As long as’
- Conditional Estate
o ‘a specified event that cuts short an already otherwise defined interest’
 ‘To A, but if A ceases to be a doctor the estate ceases to exist’
o Indicative phrases
 ‘Provided that’, ‘on condition that’, ‘but if’, ‘if it happened that’
o If the event occurs, the grantor has right of re-entry to reclaim the land, but
can decide whether to reversion is not automatic

Future Interests – Remainder and Reversion

Future interests – Right to possession in the future
Reversion
- E.g. ‘To Amy for life’
- Grantor has a reversion – right to take possession when A dies ie the land will return
to the grantor
Remainder
- E.g. ‘To A for life, remainder to H in fee simple’
- A has present possession
- H has a future interest – the remainder ie when A dies H gets the land
- The grantor has no reversion – the estate has been given away

Native Title
Land and Indigenous Peoples of Australia
- Indigenous occupation of Australia for estimated 60,000 years
- Land has cultural, spiritual, social and economic significance
- Custodians of the land
Denial of Indigenous Land Rights
British ‘Settlement’
- 1768: Captain Cook instructed to claim lands with consent of the Indigenous people
- 1788: British claimed sovereignty of Australia by ‘settlement’
o Basis: extended doctrine of terra nullius ie there was no settled law
o This was not the case
- Consent not sought or obtained
- Arrival of the British led to the dispossession of Indigenous people of their land
through the adoption of terra nullius and the doctrine of tenure
- The ‘legal fiction’ of terra nullius
o ‘A legal fiction flourished that was based on the view that the land belonged
to no one. The fiction was embodied in the doctrine of terra nullius and the
interaction of that doctrine with the doctrine of tenure. The doctrine of
tenure permitted full legal and beneficial ownership of all lands to vest in the
Crown thereby serving to help dispossess Indigenous Australians.’ (Gray, 156;
citations omitted)
- Acts of dispossession, including through force
o ‘The acts and events by which that dispossession in legal theory was carried
into practical effect constitute the darkest aspect of the history of this nation’
(Mabo (No 2), Deane and Gaudron JJ)
Not Uniform
- June 1835, John Batman entered a treaty with Indigenous peoples for 600,000 acres
near present day Melbourne
- August 1835, Governor Bourke declared the treaty ‘void and of no effect’
- 1837 British House of Commons report on Australia;
o ‘It is difficult to reconcile the treatment of Indigenous peoples in the new
colony with feelings of humanity… the native inhabitants of any land have a
right to their own soil. That rights seems not to have been understood in
Australia.’
- Cf approach to treaties in e.g. Canada, New Zealand

Common Law
Gove Case
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 14
- The Yolgnu people in Arnhem Land claimed traditional lands on the Gove Peninsula
 - Nabalco P/L had a mining lease granted by the Commonwealth
Blackburn J;
- Yolgnu people had a system of law
- Any indigenous property rights had been extinguished by the Crown’s absolute
beneficial ownership
- The nature of the relationship to the land was no proprietary in nature

Post-Gove Legislation
The Aboriginal Land Rights Commission (the Woodward Royal Commission) led to the
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
- First recognition of Aboriginal land rights
- Property in reserves vested in Aboriginal ownership
- Traditional owners could apply for title to unalienated Crown land

Aboriginal Land Rights Act 1983

- Created Aboriginal Land Councils – NSW Aboriginal Land Council (NSWALC) and Local
Aboriginal Land Councils (LALCs). Both given rights to claim land
- Dos not require traditional connection to the land
- Land must be ‘claimable Crown lands’ – defined in s 36(1), which requires;
o Must be unalienated crown lands (or certain other reserved of dedicated
and), eg not freehold
o Not ‘lawfully used or occupied’
o In Minister’s opinion, not ‘needed or… likely to be needed as residential
lands’
o ‘not needed, nor likely to be needed, for an essential public purpose’
o Not land for which a determination has been made that native title exists
under the Native Title Act 1993 (Cth) or for which an application has been
lodged
- Successful claim  land is transferred to the relevant Land Council in fee simple
o Ownership is subject to future native title claims
- Act imposes preconditions and restrictions re sale and other dealings with the land
(e.g. leasing or mortgaging)
- By 2014- 2500 claims granted, many refused, many awaiting adjudication

Mabo v Queensland (No 2) (1992) 175 CR 1

Facts
- Eddie Mabo was a Torres Strait islander born on Mer (Murray Island) in the Torres
Strait
- In 1972, Mabo and his family were denied the right to return to Mer to visit his dying
father because he had been living off the island
- In 1974, Mabo learned his people did not own the land on Mer
- In 1982, with other er residents, Mabo commenced legal proceedings in the High
Court claiming native title
- Mabo died five months before the High Court decision in Mabo (No 2)
Findings
- The Crown’s acquisition of sovereignty over Australia could not be subject to review
by the Court
 - On settlement of Australia, Crown did not gain absolute beneficial ownership, but
rather ‘radical title’ – ability to grant interests in land to others and acquire land
- Native title derives from the ‘traditional laws acknowledged by and the traditional
customs observed by the indigenous inhabitants of a territory’ (Brennan J, 58)
- Native title was not extinguished by Crown taking radical title, but could be
subsequently extinguished by an inconsistent act
o The Crown’s title then becomes absolute beneficial ownership
- Compensation was not payable for extinguished native title
Issues
- ‘Where a clan or group has continued to acknowledge the laws and (so far as is
practicable) observe the customs based on the traditions of that clan or group,
whereby their traditional connection with the land has been substantialy
maintained, the traditional community title of that clan or group can eb said to
remain in existence.’ (Mabo (No 2), per Brennan J, 59-60)
- Difficulties with establishing connection to land on the evidence

Native Title Act 1993 (Cth)

- Introduced following Mabo (No 2)
- Common law on native title underlies and informs the Act
- Validated existing grants
- Extensive statutory provisions regarding claims/determinations of native title
- Provisions regarding compensation
- Cases determined by:
o National Native Title Tribunal – only if agreement reached; or
o Federal Court
The South Coast People’s Claim
- Native title claim covering Illawarra and South Coast
- Registered 2018 January 31st
- Not yet determined

Indigenous Land Use Agreements (ILUA)

- Agreements between native title holders, or native title claimants, government or
other parties
- Created by amendments to the Native Title Act 1993 (Cth) in 1998
- Can cover a number of matters e.g. recognise native title rights, authorise future
acts, compensation
- ILUAs may be registered on the Register of ILUAs. On registration, they are binding
on all the parties
- McGlade v Native Title Registrar [2017] FCAFC 10
o Case brought to prevent registration of four ILUAs
o Found not to be agreements within the meaning of the Act, as they were not
signed by all registered native title claimants
o Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth)
passed – existing ILUAs validated, future ILUAs to be signed by majority or
nominated persons authorised by the claimant group.
Extinguishment of Native Title
- Mabo (No 2) recognised native title could be extinguished, and Crown would then
gain absolute beneficial title
- Common law – occurs when the Crown acts with ‘clear and plain’ intention to
extinguish native title
o Legislation which manifests such an intention
o Legislation/executive govt creating interests inconsistent with native title
o Acquisition of absolute beneficial ownership by the Crown
- Can also occur by ‘loss of connection with Indigenous traditions and customs’
- Native Title Act 1993 (Cth) provides that native title can only be extinguished in
accordance with the Act, post 1993