LAWS2204 Property
Concepts of Property
Before any priority or indefeasibility rule, you must classify the interest — and Property opens with the tools to do it. “Property” is a bundle of rights, not a thing (Yanner v Eaton): for every right there is a correlative duty in others not to interfere. Two foundational questions recur in almost any land problem. First, is something realty or personalty — in particular, has a chattel become a fixture (part of the land)? The fixtures test runs in order: the degree of annexation sets the presumption and the onus (Holland v Hodgson; Coroneo), but the object/purpose of annexation is decisive (Agripower). Second, what does possession give you, given the relativity of title? You need not be the “true owner” to have real, devisable, compensable rights — possession needs factual control plus an intention to possess, and as between possessors prior possession is the better right (Mabo (No 2), Toohey J; Asher v Whitlock).
What this chapter covers
- 01Property as a bundle of rights (Yanner v Eaton; Honoré's incidents)
- 02Realty vs personalty; corporeal vs incorporeal; choses in possession & action
- 03Fixtures step 1 — degree of annexation (the presumption, Holland v Hodgson)
- 04Fixtures step 2 — the burden of proof (Coroneo)
- 05Fixtures step 3 — object/purpose of annexation (decisive, Agripower)
- 06Possession — the two-limb test (factual control + animus possidendi)
- 07Relativity of title — prior possession is the better right (Asher v Whitlock; Perry v Clissold)
Worked example: prior possession of an abandoned block (IRAC)
- +1Issue. Whose possessory claim is better as between two non-owners, and how does each stand against the documentary owner?
- +1Rule. Possession requires factual control + an intention to possess (Mabo (No 2), Toohey J). By relativity of title, a possessor's rights are good against the world except a person with a superior (older) right; as between possessors, prior possession is the better right (Asher v Whitlock; Perry v Clissold).
- +1Application (a). Greta has clear factual possession (clearing, fencing, cultivating, residing) and an intention to possess (excluding others by the fence). Hugo is a later possessor, so on relativity Greta's prior possession beats Hugo's — she can recover possession against him.
- +1Application (b). Against the paper owner, Greta's possessory title is good only until the owner asserts a superior right — unless Greta has held adversely for the limitation period, which can extinguish the owner's title (the adverse-possession analysis, next chapter).
- +1Conclusion. Greta has the better claim against Hugo now (prior possession) and a defensible possessory title against the world at large; her position against the documentary owner turns on adverse possession. Remedy: recovery of possession, mesne profits, trespass.
Key terms
- Bundle of rights
- The modern conception of “property” — not a thing but a legally endorsed set of rights and relationships (Yanner v Eaton; Honoré's incidents of ownership). A statute that merely regulates a resource does not necessarily confer ownership.
- Fixture
- A chattel that has become part of the land. Decided by the fixtures test: degree of annexation sets the presumption and onus (Holland v Hodgson; Coroneo), but the decisive question is the object/purpose of annexation (Agripower) — better enjoyment as a chattel, or permanent improvement of the land?
- Chose in action
- A form of pure personalty that can only be claimed or enforced by legal action rather than physical possession — intangibles such as shares, debts and intellectual property. Contrast a chose in possession (a tangible thing, e.g. a car).
- Relativity of title
- The principle that title is not absolute but ranked: there can be several competing “owners” ordered in time, and the question is always who has the better right, not who is the “true owner”. Prior possession prevails over a later possessor (Mabo (No 2), Toohey J; Asher v Whitlock).
- Animus possidendi
- The intention to possess — the second limb of possession alongside factual control. It is the intention to exclude the world so far as reasonably practicable; both factual control and animus are required, and the standard of control varies with the nature of the land.
Concepts of Property FAQ
What's the difference between a fixture and a chattel, and why does it matter?
A fixture is a chattel that has become part of the land, so it passes with the land on sale and cannot be removed by a departing tenant; a chattel remains personal property. The test runs in order: the degree of annexation sets a presumption and fixes the onus (resting by its own weight = prima facie chattel; fixed by more than its weight = prima facie fixture, Holland v Hodgson; Coroneo), but the object or purpose of annexation is decisive (Agripower) — was the thing attached for its own better enjoyment as a chattel, or for the permanent improvement of the land?
Can someone who is not the owner have property rights in land?
Yes. A person in possession has a real, devisable and compensable title good against all the world except a person with a superior (older) right (Asher v Whitlock; Perry v Clissold). Possession needs factual control plus an intention to possess; and by relativity of title, as between two possessors the earlier one has the better right.
What does 'property is a bundle of rights' actually mean for an exam answer?
It means you should never treat “property” as the physical thing. Ask what bundle of rights the law confers and on whom (Yanner v Eaton). This is why a statute that regulates a resource (e.g. Crown “property” in fauna) is not the same as ownership, and why two people can each hold a real interest in the same land ranked by time.
Is the 'land up to the heavens, down to the centre' maxim still the law?
Only in a qualified form. The maxim cujus est solum... is heavily qualified in modern law: airspace rights extend only as far as is necessary for the ordinary use and enjoyment of the land (Bernstein v Skyviews), and subsurface and resource rights are extensively modified by statute.
Exam move
Build a fixed opening move: classify before you reason. For every object in a land problem, label it (realty/personalty; corporeal/incorporeal; chose in possession/action) and, if a chattel is attached, run the three-step fixtures test in order — never stop at “it's bolted, so it's a fixture”, because the decisive step is purpose (Agripower) and the onus flips with the mode of attachment (Coroneo). For occupation disputes, state the two-limb possession test and then drive everything through relativity of title: prior possession is the better right (Asher), and the paper owner is only beaten by adverse possession. Marks here are lost by confusing possession with ownership and by treating subjective intention as decisive when it is merely relevant.
