2023 11th Ed Revised Reading Guide Law 2112 Property A

PROPERTY A
LAW2112
Reading Guide
Semester 1, 2023
Prepared by:
Daniel Fitzpatrick, Vanessa Johnston, Paul Brenner, Pam O’Connor, Sharon

Rodrick, Greg Taylor, Kathryn James, Alicia Wright, Brett Harding, Elyse
Schachna
Clayton Campus
Monash University
Produced and Published by:

Faculty of Law
Monash University
Clayton, Victoria, Australia, 3800
First Published 2007; revised to 2023
© Copyright 2023
NOT FOR RESALE. All materials produced for this course of study are protected by
copyright. Monash students are permitted to use these materials for personal study and
research only, as permitted under the Copyright Act. Use of these materials for any other
purposes, including copying or resale may infringe copyright unless written permission
has been obtained from the copyright owners. Enquiries should be made to the publisher.
2
HOW BEST TO USE THIS READING GUIDE
1. Material followed by (‘OL’) is available electronically through the library resources

hyperlink on the Moodle homepage for the course (see ‘Unit Resources’ below)
2. Readings are marked as follows:

a. Prescribed reading: is essential and must be read prior to lectures. All material
contained in prescribed readings is examinable.
b. Recommended reading: is not essential for completion of the course. However,
where students require clarification or more in-depth study of a particular issue
raised in the reading guide or textbook, then the casebook should be the first
point of reference before proceeding, if necessary, to the further readings.
c. Further reading: is useful (but not essential) in order to gain a more thorough
understanding of the law in general, or in relation to an issue in particular.
d. For noting only: is provided as a relevant reference for specific issues that may
be of interest to students, or as a comment on introductory or notable issues.
This material is not examinable.
3. The unit consists of a set of discrete topics, but Property A needs to be understood
holistically. Look for the links and overlaps between topics.
4. Examinations in this unit will proceed on the premise that students have attended all
lectures, have prepared for and attended all tutorials and read all prescribed reading
materials.
5. Do not rely on downloaded power points and transcribed lecture notes as a substitute
for reading cases and legislative provisions.
UNIT RESOURCES: GENERALLY
Use library and web based research facilities and the Property Law Moodle pages to find more
background reading, particularly journal articles and cases.
UNIT RESOURCES: LEGISLATION
In the course, we refer to the following legislation, which can be downloaded or accessed from Austlii
(www.austlii.edu.au); or from the Victorian Parliamentary Website (www.legislation.vic.gov.au)
• Transfer of Land Act 1958 (Vic) – (‘TLA’)
• Property Law Act 1958 (Vic) – (‘SLA’)
• Instruments Act 1958 (Vic) – (‘Instruments Act’)
• Limitation of Actions Act 1958 (Vic) – (‘LAA’)
• Sale of Land Act 1962 (Vic) – (‘SLA’)
• Retail Leases Act 2003 (Vic) – (‘RLA’)
• Residential Tenancies Act 1997 (Vic) – (‘RTA’)
• Subdivision Act 1988 (Vic)
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UNIT RESOURCES: TEXTS
Prescribed text:
Moore, Grattan and Griggs, Australian Real Property Law (7th ed) (Thomson Reuters, 2020)
(MGG)
Recommended casebooks
Bradbrook, McCallum, Moore, Grattan and Griggs, Australian Property Law: Cases and
Materials (Lawbook Co Thomson Reuters, 5th ed, 2016)
Edgeworth, Rossiter, O'Connor, and Goodwin, Sackville & Neave Property Law in Australia
(LexisNexis Butterworths, 11th ed, 2020) (S&N) (available on line via the law library)
Hepburn, Australian Property Law: Cases, Materials and Analysis (LexisNexis Butterworths, 3rd
ed, 2015) (hereafter ‘Hepburn’)
Highly recommended textbooks for general reference
Chambers, An Introduction to Property Law in Australia (Law Book Co Thomson Reuters, 3rd ed,
2013) (hereinafter ‘Chambers’)
Mackie, Bennett-Histed and Page, Australian Land Law in Context (Oxford University Press,
2012) (hereafter ‘MHP’)
Other recommended textbooks for general reference
Bradbrook, Croft and Hay, Commercial Tenancy Law (3rd ed, LexisNexis, 2009) (for coverage of
the Retail Leases Act)
Brendan Edgeworth, Butt's Land Law (7th ed, Lawbook Co, 2017)
Cheshire, Cheshire and Burn’s Modern Law of Real Property (Butterworths, 18th ed, 2011)
(English)
Esmaeili and Grigg (eds) The Boundaries of Australian Property Law (Cambridge University Press,
2016)
Gray and Gray, Land Law (Oxford University Press, 6th ed, 2009) (English)
Harpum, Bridge and Dixon (eds), Megarry and Wade The Law of Real Property (Sweet and
Maxwell, 8th ed, 2012) (English)
Price and Griggs, Property Law: In Principle (Thomson Reuters Lawbook Co, 2nd ed, 2008)
(hereinafter ‘P&G’)
Note: Care should be taken in reading English texts as many of the English legislative provisions
have not been adopted in Victoria.
Textbooks on specific topics
Bradbrook & Neave, Easements and Restrictive Covenants in Australia (LexisNexis Butterworths,
3rd ed, 2011)
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Croft and Hay, The Mortgagee's Power of Sale (LexisNexis Butterworths, 3rd ed, 2012)
Duncan and Dixon, The Law of Real Property Mortgages (Federation Press, 2nd ed, 2013)
Hardcastle, Law and the Human Body: Property Rights, Ownership and Control (Hart, 2007)
Jourdan, Adverse Possession, (LexisNexis Butterworths, 2003)
Lloyd & Rimmer, Sale of Land Act Victoria (Thomson Reuters, 2015)
Sykes and Walker, The Law of Securities (Lawbook Co, 5th ed, 1992)
Tyler, Young, and Croft, Fisher and Lightwood's Law of Mortgages Australian Edition (LexisNexis
Butterworths, 3rd ed, 2013)
Veljanovski, Economic Principles of Law (Cambridge University Press, 2007)
Whalan, The Torrens System in Australia (Lawbook Co, 1992)
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Table of Contents
PART 1: CONCEPTS OF PROPERTY AND OWNERSHIP 7
1. THE CONCEPT OF PROPERTY 7
2. FRAGMENTATION OF PROPRIETARY INTERESTS 12
3. AN INTRODUCTION TO TITLE TO LAND 14
4. AN INTRODUCTION TO LEGAL AND EQUITABLE INTERESTS IN LAND 15
PART 2: FREEHOLD ESTATES 17
5. THE DOCTRINES OF TENURE AND ESTATES; LIFE ESTATES 17
6. THE DOCTRINE OF RELATIVITY OF TITLES; ADVERSE POSSESSION 20
7. ACQUISITION AND TRANSFER OF PROPRIETARY INTERESTS; SALE AND GIFT OF PROPERTY 25
PART 3: LEASEHOLD ESTATES 29
8. LEASEHOLD ESTATES 29
9. CREATION OF LEASEHOLD INTERESTS 38
10. THE BORDERLINE BETWEEN CONTRACT AND PROPERTY: CONTRACTUAL LICENCES 40
PART 4: SERVITUDES 42
11. EASEMENTS 42
12. RESTRICTIVE COVENANTS 47
PART 5: SECURITY INTERESTS 49
13. SECURITY INTERESTS 49
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PART 1: CONCEPTS OF PROPERTY AND OWNERSHIP
1. THE CONCEPT OF PROPERTY
A. WHAT IS PROPERTY?
Traditionally, lawyers describe property in terms of “rights in rem” (literally, rights to a thing”).
The corollary is that property rights are rights that are “good against the world”. The distinction
is with “rights in personam” (rights against a person), which typically are the type of rights that
arise in cases of tort or breach of contract.
In Yanner v Eaton [1999] HCA 53, the High Court of Australia emphasised that this traditional
distinction must be considered in context:
The word ‘property’ is often used to refer to something that belongs to another. But … ‘property’
does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a
degree of power that is recognised in law as power permissibly exercised over the thing. The
concept of ‘property’ may be elusive. Usually it is treated as a ‘bundle of rights’.
Prescribed reading
Textbook MGG 1.200
Article Australian Law Reform Commission, The Definition of
Property, https://www.alrc.gov.au/publication/definitions-of-
property/ [Paragraphs 7.11-7.16 Only]
–
Further reading:
• S&N 11th ed 1.1-1.7E
• Chambers Ch 2
• Hepburn 1.1-1.9
B. CHARACTERISTICS OF PROPERTY
How do property interests differ from contractual interests?
Prescribed reading Recommended reading

Case King v David Allen & Sons Billposting Ltd [1916] 2 S&N 11th ed 1.24C
AC 54
Textbook MGG 1.205 S&N 11th ed 1.15; 1.25-1.27
C. PROPERTY AND THE RADICAL TITLE OF THE CROWN
The reception of the common law at the time of sovereign acquisition by the British Crown of
the colonies of Australia brought with it the doctrine of radical or ultimate title of the Crown. In
Australia, until the High Court decision in Mabo v Queensland, the radical title of the Crown was
interpreted to mean that the Crown acquired ownership of all land as an incident of the
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acquisition of sovereignty. In Mabo, the High Court held that the radical title of the Crown did
not mean that the Crown acquired absolute beneficial ownership of all land (i.e. ownership of
land in both law and equity), but rather provided legal authority to grant estates or interests in
land, and to declare unalienated land (i.e. land not the subject of a Crown grant) owned by the
Crown.
Unlike England, much of Australia is subject to Crown Leases which first developed as an ex
post means to provide property rights to squatters who had unlawfully taken control of land,
typically through dispossession of indigenous peoples. In The Wik Peoples v The State of
Queensland & Ors [1996] HCA 40 the High Court held that the Crown did not acquire, simply
by operation of the common law, absolute beneficial ownership of land after the expiry of a
Crown lease.

Case Mabo v Queensland No. 2 (1992) 175 MGG 1.15-1.20, S&N 11th ed 3.64C-3.65
CLR 1 2.25-2.35
The Wik Peoples v The State of MGG 1.15-1.20, S&N 113C (revise 11th)
Queensland & Ors; The Thayorre 2.25-2.35
People v The State of Queensland &
Ors [1996] HCA 40; (1996) 187 CLR
1
Further reading:
Hepburn, Samantha, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005)
27(1) Sydney Law Review 49
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D. CONSTITUTIONAL PROTECTION OF PROPERTY RIGHTS
For noting only: Many countries confer a degree of constitutional protection on property rights.
In Australia, the Federal Constitution confers power on the Federal parliament to make laws with
respect to “the acquisition of property on just terms from any State or person for any purpose in
respect of which the Parliament has power to make laws”: Constitution s 51 (xxxi).
In Victoria, there is legislative but not constitutional protection. Upon notice of acquisition by a
State authority “… every person who, immediately before the publication of a notice of
acquisition, had an interest in land that is divested or diminished by the acquisition of the interest
… has a claim for compensation”: Land Acquisition and Compensation Act 1986 (Vic.) s. 30.
State Constitutions contain no express or implied prohibition on acquiring property other than on
‘just terms’ (Durham Holdings v NSW (2001) 205 CLR 399). An attempt to alter this in 1988
(proposed Constitution Alteration (Rights and Freedoms) 1988) was rejected by almost 70% of
Australian voters.
E. CLASSIFICATION OF PROPERTY
Property is classified using specific terms. You should be familiar with, and be able to describe
specific property, using the following terms:
• Real Property
• Personal Property
• Corporeal and Incorporeal Hereditaments
• Chattels Real and Personal
• Goods and Choses in Action

Textbook MGG 1.235 – 1.245 S&N 11th ed 1.65-1.75
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F. THE BORDERLINE BETWEEN REAL AND PERSONAL PROPERTY: DOCTRINE
OF FIXTURES
When may it be important to differentiate between real and personal property?
For statutory purposes, ‘land’ includes fixtures (as ‘corporeal hereditaments’ in PLA s 18;
Interpretation of Legislation Act 1984, s 38 (includes buildings and other structures permanently
affixed to land).
The doctrine of fixtures operates so that in certain circumstances the attachment of a chattel to
land results in the landowner acquiring title to the attached chattel.

Textbook MGG 16.05-16.10, 16.50 S&N 11th ed 1.76-1.77
Further Reading
• T&D ch 2
• MHP 2.2.11
• Abbs, R, ‘The law of fixtures: Informed principle or independent predilection’ (2004) 11
Australian Property Law Journal 31 (OL)
For noting only: Legislation may modify the doctrine for specific purposes. An example is the
Competition and Consumer Act 2010 (Cth) Sch. 2 cl. 8. You are not required to know this
provision for the exam.
In what contexts might the doctrine of fixtures assume significance?
Tests for determining whether a chattel has become a fixture
▪ Degree of annexation
▪ Object of annexation

Textbook MGG 16.15-16.20, 16:25, 16:30
Case National Australia Bank Ltd v Blacker (2000) 104
FCR 288 [1]-[29]
Case Belgrave Nominees Pty Ltd v Barlin-Scott
Airconditioning (Aust.) Pty Ltd [1984] VR 947
Further Reading
• Hepburn 3.1 – 3.7
• MHP 2.2.2-2.2.6
• Chambers p 354-6
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Removal of fixtures
Even at common law certain fixtures were removable. A tenant had rights of removal that could
be exercised against a landlord. The right to remove fixtures has been extended by legislation.
For the position of tenants see:

Statute PLA s 154A; see also MGG 16.80 – S&N 11th ed 1.86-1.90
16.90
Statute RTA s 64
Other legislative provisions regulate what happens when a chattel being purchased on credit
becomes a fixture. Knowledge of these provisions is not required for examination purposes.
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2. FRAGMENTATION OF PROPRIETARY INTERESTS
In Topic 1 we saw that the property phenomenon does not refer to a ‘thing’ but a relationship
between legal persons (the ‘subjects’ of property) and ‘objects’ of property rights.
The property rights in relation to a particular object may be subdivided in a number of ways. In
the case of land, the ways in which interests may be divided are as follows:
By reference to time
Two common examples of fragmentation by reference to time include: life estates (discussed in
the context of the doctrines of tenure and of estates in Topic 5) and leases (Topics 8-10). Leases
must have certainty of duration – after which the property reverts to the owner/landlord.
By reference to space
One piece of land may be spatially divided in a number of ways. Subdivision along horizontal,
ground level boundaries is used to produce a number of separate blocks of land. Alternatively,
strata title systems allow people to acquire title to separate units in the same building using both,
or either, horizontal and vertical partitions. The legislative basis of these is contained in the
Subdivision Act 1988 (Vic), Parts 1 & 5 & s 39 and the Owners Corporations Act 2006 (Vic). Note
that strata title law is not examinable and is for noting only.
By reference to the nature of title: possession and the doctrine of relativity of titles
In some circumstances both a possessor and an ‘owner’ of property may have a title which can
be asserted against third parties. Possession and the related doctrine of adverse possession
are considered in detail in Topic 6. Person A has the right to possession and Person B has the
right to fee simple (“ownership”).
By reference to whether the interest is equitable or legal (equitable interests generally

have narrower spheres of enforceability than legal interests).
As will be seen throughout the course, and especially in Topic 4, a sophisticated system enabling
division of “legal” and “equitable" proprietary interests was first developed in relation to land. The
later growth of the device of the trust enabled many similar kinds of interest to be created in
relation to personal property.
By reference to the nature of the right (i.e. “the Bundle of Rights")
More than one property interest may exist in a single ‘thing’ at the same time. Law and/or equity
recognise a variety of rights in property which do not give the holder a right to possession.
(i) Rights of use and enjoyment — A person may have the right to use another person’s property
in a particular way. In some situations this right may amount to an easement or profit à prendre.
Alternatively a person may have the right to restrict the use of another person’s property (a
restrictive covenant). A restrictive covenant may be enforceable against a successor in title to
the person originally bound by the covenant, because it is recognised by equity as a property
interest. Easements are discussed in Topic 11 and restrictive covenants are discussed in Topic
12. Profits are only discussed briefly in this course, in the context of the above interests.
(ii) Security interests — Land or other forms of property may be used as security for a loan. A
mortgage is one form of security interest. Mortgages are discussed briefly in Topic 13 and will
be dealt with in more detail in LAW 3402 Property B
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By reference to whether the interest is shared with another
It is possible for several people to be co-owners (i.e. concurrent owners) of the same interest in
a piece of property. Co-ownership can apply in relation to most types of property interests
including mortgages, leases and easements. Co-ownership will be dealt with in LAW3402
Property B.
Further reading:
• S&N 11th ed 3.1
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3. AN INTRODUCTION TO TITLE TO LAND
As set out in Topic 1.B, and as further explored in Topic 5, it is inaccurate to speak of ‘absolute’
ownership of land. Ownership of land in Australia is relative because of the English feudal
provenance of our property law system.
During this subject, we will consider the two types of land title that operate in Victoria:
• General Law (or Old System) Land and
• Torrens System Land.
A. GENERAL LAW LAND: THE DEEDS SYSTEM
The first common law system of land ownership and conveyancing to operate in Victoria was the
old system of General Law land. There are still some parcels of General Law land today,
especially in the inner suburbs of Melbourne and in country Victoria. In order to establish good
title to General Law land, it is necessary to trace an unbroken chain of transactions, or dealings,
with the land back for at least 30 years to what is known as “a good root of title”. All relevant
documents in the chain of title for that period of time must be produced.
Under the Deeds System: title to land was derived from a deed between two or more parties,
which could be voluntarily registered, on the Deeds Register.

Textbook MGG 4.05
General Law land is governed by the provisions of the Property Law Act 1958 (Vic) (‘PLA’). See
further LAW3402: Property B.
B. THE TORRENS SYSTEM
The General Law system was inefficient and expensive and so, since 1862, the Torrens System
of title to land by registration was gradually introduced throughout Australia. The vast majority of
land in Victoria has been brought under the Torrens System.
Under the Torrens System, title to land is derived by registration of the interest in land on a
central, public, Register. The Register (both electronic and paper forms) is maintained by the
Registrar of Titles, register. Under the Torrens System, a Certificate of Title to land (or to the
interest in land) is conclusive evidence of title.
Torrens System Land is governed by the provisions of the Transfer of Land Act 1958 (Vic) (‘TLA’)
and, unless expressly excepted or inconsistent, the relevant provisions of the PLA. See further
LAW3402: Property B.

Textbook MGG 4.10
Further Reading
• Greg Taylor, “The Torrens System’s Migration to Victoria” (2007) 33 Monash University
Law Review 323) (OL)
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4. AN INTRODUCTION TO LEGAL AND EQUITABLE INTERESTS IN
LAND
A. ACQUISITION OF EQUITABLE INTERESTS IN LAND
As noted in Topic 3, proprietary interests can also be fragmented by reference to the sphere of
enforceability into legal and equitable interests. In this regard, it may be possible to acquire
(or transfer) an equitable interest in property to a third person separately to the legal interest.
While equitable interests in land (including trusts) are discussed in detail in LAW3402 Property
B, the following provides an introduction to equitable interests to help you to understand the
legal principles stated in this, and later, Topics. See also LAW3111 Equity.
The historical development of equitable jurisprudence
The Judicature Act 1873 (UK) merged the common law and equity jurisdictions with the
proviso that equity would prevail in the event of conflict or in any matter not specifically
provided for. This position was replicated in Victoria by the Judicature Act 1883 (Vic), now
the Supreme Court Act 1958 (Vic) s 29.
The recognition of the trust and the consequent distinction between legal and equitable
interests evolved from the earlier device of the ‘use’, which was employed inter alia for
tax avoidance purposes. The Chancellor (and later the Court of Chancery) assumed
jurisdiction over the enforcement of uses, and later trusts.
Under the institution of the trust, there is the division between the ‘nominal owner’ of
property (the trustee) and the person who is entitled to benefit from the property (the
beneficiary), for example by receiving its income.
Civil systems also have a concept of a trust, but not of the beneficiary having an equitable
interest in the trust property. This notion is peculiar to common law systems.

Textbook MGG 2.300-2.320 S&N 11th ed 3.37-3.38, 4.1
Further Reading:
• T&D 6.2-6.3
For noting only: How do trusts arise?
Fragmentation of legal and equitable interests in property often occur because a ‘trust’
has arisen between the holder of the legal interest and another party.
Trusts can arise in a number of ways.
1. Express trusts
Most commonly they are created expressly when one person transfers property to
another, to hold it on trust -
e.g. A conveys Blackacre to T on trust for B.

e.g. A conveys 1,000 Telstra shares to T on trust for B.
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Alternatively, a person may declare him or herself to be the trustee of property-
e.g. A owns Blackacre. A declares himself as trustee of Blackacre for B.
e.g. A has 50,000 Telstra shares. A declares herself trustee of the shares for B.
The requirements for a valid inter vivos trust are contained in the Property Law Act 1958
(Vic) and are considered in Trusts (LAW4170).
A trust may also be created by will

e.g. A devises Blackacre to T on trust for B1 for life, remainder to B2.
For an express trust to be validly created by will, the will must be validly executed. The
requirements for a valid will are contained in the Wills Act 1997 (Vic) and are considered
in LAW4311 Succession Law.
Further Reading:
• MGG 2.370
• S&N 11th ed 4.82- 4.83
2. Trusts arising by operation of equitable principles
A trust may also be presumed or imposed by a court exercising equitable jurisdiction. A

beneficial interest in land necessarily suggests the existence of a trust. The recognition
of equitable interests in real property was linked to the fact that the Court of Chancery
developed a range of equitable remedies, which differed from those available at common
law. These remedies were dependent on the favourable exercise of the court’s discretion,
rather than being available as of right, which was the case with common law remedies.
Examples of implied trusts include (considered in LAW3402 Property B):
• the resulting trust, which usually arises where the title holder of real property is
a purchaser who has not provided all the funds for the purchase of the property.
In certain circumstances, the title holder will be deemed to hold the property on
trust for the party who provided the purchase money.
• the constructive trust which, in certain circumstances will arise in favour of a

purchaser of land, or be imposed on the holder of property, in order to prevent that
person behaving unconscionably.
Further Reading:
• MGG 8.175-8.185 OR S&N 11th ed 4.89-4.104
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PART 2: FREEHOLD ESTATES
5. THE DOCTRINES OF TENURE AND ESTATES; LIFE ESTATES
The doctrines of tenure and estates are products of our feudal origins. The doctrine of tenure
arises from the fact that radical title to land is vested in the Crown – hence all land is technically
“held of the Crown”. The doctrine of estates describes the nature of rights received from the
Crown – not “ownership” but freehold or leasehold estates in land.
Further reading:
• T&D 5.1

Textbook MGG 2.10 – 2.15, 2.25 – 2.35 S&N 11th ed 3.3-3.4
Further reading:
• T&D 5.1-5.4;
• MHP 3.2;
• Hepburn 5.1-5.9
A. FREEHOLD ESTATES
What are the freehold estates?
What are the characteristics of a fee simple estate?
What are the characteristics of a life estate?
• Can a life estate be alienated (sold or given away) by its holder?

• Suppose that A has a life estate, which she then sells to B. What interest does B
acquire?
• What restrictions exist on the use that the holder of a life estate can make of the land?

Textbook MGG 2.85 – 2.100, 2.125 – 2.145 S&N 3.7- 3.19
Further reading:
• T&D 5.5 – 5.12
• MHP 3.3-3.7
• Hepburn 5.10-5.13
B. FREEHOLD VS LEASEHOLD ESTATES
Unlike a freehold estate, a leasehold estate must have a duration that is certain or
ascertainable: see further Topic 8.

Textbook MGG 2.150 – 2.170 S&N11th ed 3.16
Further reading:
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T&D 5.13 – 5.17
C. FUTURE INTERESTS
The doctrine of estates necessarily involved the recognition of future interests. For example, a
person holding a life interest has a present interest because he or she is vested in possession.
If X, the grantor of the life interest, retained the fee simple in the land, X held a future interest
because X’s interest, known as a fee simple reversion, did not entitle X to possession until the
life interest came to an end. This fee simple reversion could be sold, given away, left by will, etc.
Alternatively, X might have disposed of the fee simple at the same time he or she granted the life
interest. For example, X might have conferred a life interest on A, and at the same time a fee
simple remainder on B. B would obtain a future interest. In such a case, B would obtain a property
right that could be alienated immediately, although B’s enjoyment of possession would be
postponed.
The above situations were further complicated if the remainder to B was made contingent on the
happening of an event, as for example, B would not be entitled to possession until she turned
25. Complex rules developed to control the circumstances in which contingent remainders could
be created or could take effect. Ingenious lawyers invented new devices to avoid these rules,
thus giving rise to different forms of future interests. The use of present and future interests to
tie up estates and limit powers of alienation was known as “settlement”. Today, future interests
and contingent gifts (usually in property other than land) are often created by wills or trusts.
Students are required to know about the existence and basic types of future interest as outlined
above, but beyond that future interests are not examinable in this course. Today, such needs
are usually met by the more flexible and less legally hazardous means of creating a trust.
For LAW2112 you are required to understand the following future interests:
1) Remainder (vested)
2) Remainder (contingent)
3) Reversionary interest

Textbook MGG 2.265 – 2.275; 10.05-10.40 S&N 11th ed 2.94, 3.33-
3.36
Further Reading:
• Hepburn 5.14
What is the doctrine of waste?

Statute PLA ss 132A, 133
Management of land where ownership is divided
For noting only: Certain dispositions that create successive estates in land (called “settlements”)
create “settled land” to which the Settled Land Act 1958 (Vic) applies. The Act gives a life tenant
powers to apply to the court to vary the terms of a settlement (defined under s 8 to exist where
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an instrument provides that any land is limited to or in trust for any persons by way of succession).
These powers include the power to sell, lease and mortgage the settled property. The Act is
based on a nineteenth-century English reform which was passed to extend the powers of a life
tenant. But its requirements for administering settled land are so onerous that lawyers take care
to avoid creating settled land when drafting wills and conveyances. The Act has been called a
trap for the unwary, and the Victorian Law Reform Commission has recommended its repeal and
replacement. Students are not required to have knowledge of the Act for examination purposes
but should be aware of it in professional practice, especially when drafting or administering wills
or dispositions of land
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6. THE DOCTRINE OF RELATIVITY OF TITLES; ADVERSE
POSSESSION
The property rights in relation to a particular object may be subdivided by reference to the
nature of title: possession and the doctrine of relativity of titles. In some circumstances both a
possessor and an ‘owner’ of property may have a title which can be asserted against third
parties.
A. THE CONCEPT OF A POSSESSORY TITLE
A person may acquire title to property otherwise than by transfer of title to that property from
some other person (derivative acquisition). A possessory title is a significant example of original
acquisition.
Since the Crown was, technically, the owner of all land, it was necessary for the common law to
protect something other than ownership. Broadly speaking, it appears that the early law protected
the person ‘seised’ of land (i.e. a person in possession of a freehold estate in land) rather than
relying upon a concept of absolute ownership. The possessor of land had an interest in it,
enforceable against the whole world, except against someone with a superior right of possession.
The superior right to possession might be based on documentary title, or, in some cases, on a
prior period of possession. Since, generally, the possessor of land could be protected against a
person who evicted him or her, but not against a person evicted, title to land is more accurately
described as ‘relative’ rather than ‘absolute’.
Under the doctrine of relativity of titles, more than one person may have a legal estate in land at
the same time. For example, a person with the documentary title generally has a legal fee simple,
which is good against the whole world, unless there is another person who can show a prior or
better right. Simultaneously, a person who takes possession acquires a ‘possessory’ legal fee
simple, good against the whole world except another person who can show a prior or better right.
The person with the documentary title will have the better interest unless that interest has been
extinguished through the effluxion of time (see Limitation of Actions Act 1958 (Vic) (‘LAA’).

Textbook MGG 2.45 – 2.70 S&N 11th ed 2.47
Further Reading:
• S&N 11th ed 2.1-2.2, 2.37
• Hepburn 2.20
B. GENERAL PRINCIPLES OF A POSSESSORY TITLE
Why did early English law protect possession, rather than title? What was the function of
possession in English law?

Case Mabo v Queensland (No 2) (1992) 175 S&N 11th ed 3.77C, 2.41-2.42C
CLR 1 (Toohey J)
Perry v Clissold [1907] AC 73 S&N 11th ed 2.40C, 2.44
Asher v Whitlock (1865) LR 1 QB 1
Textbook MGG 2.45 – 2.70
20
Why was it argued that Clissold’s estate was not entitled to compensation?
Possession confers the same rights in respect of goods: Jeffries v Great Western Railway
Company (1856) 5 E&B 862; S&N 11th ed 2.13C
For noting only: A number of torts to goods rely on the concept of possession: trespass
to goods, conversion and detinue. A defendant in an action for trespass, detinue or
conversion cannot usually raise the plea of ius tertii – viz., that another person has a
better right to possession than the plaintiff.
Further Reading:
• T&D 3.1-3.3, 3.9-3.16
• Hepburn 2.1, 2.3, 2.6-2.11
C. THE RIGHTS OF FINDERS (CHATTELS)
How does the law deal with ownership of lost personal property? Is there a difference
between lost and abandoned property? Is possession nine-tenths of the law?
Note that these issues of personal property are not covered by the MGG textbook.

Cases Armory v Delamirie (1722) 1 Strange 506; OL
93 ER 664. Court of King’s Bench
Parker v British Airways Board [1982] QB

1004; [1982] CA S&N 11th ed 2.34C
Waverly Borough Council v Fletcher

(1996) QB 334 S&N 11th ed2.37
Textbook S&N 11th ed 2.24C-2.36
Further Reading:
A Tay 'Possession and the modern law of finding' (1964) 4 Sydney Law Review 383-95.
Joyce Tooher, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6(2)
Australian Property Law Journal 1-27.
Further Reading:
• Guoqing Liu, ‘Possession in the law of finding: A comparative study of doctrine of possession’
(2014) 22 Australian Property Law Journal 211.
D. LIMITATION OF ACTIONS AND ADVERSE POSSESSION
Most jurisdictions have enacted limitation of actions legislation which bars the rights to bring an
action to recover land or goods after a specified period of time.
21
Statute LAA ss 5, and Part 1, Div 3
Textbook MGG 3.05-3.25 S&N 11th ed 2.61-2.76
Further Reading:
• T&D ch4
• Hepburn ch 4
What policy lies behind such legislation? Is this policy still relevant today? Should the law
distinguish between accidental adverse possessors and deliberate adverse possessors?
Relevant limitation periods
What is the limitation period for recovery of chattels in Victoria?
Prescribed reading
Statute LAA s 5
What is the limitation period for recovery of possession of land?

Statute LAA ss 8, 18
Textbook MGG 3.40 S&N 11th ed 2.77-2.80
When does time normally begin to run against a person who has lost possession?

Statute LAA ss 9(1), 14(1)
Textbook MGG 3.60-3.65 S&N 11th ed 2.81
Can you acquire title to public land by adverse possession?

Statute LAA ss 7, 7A, 7AB, 7B
Adverse possession of common property

Prescribed reading
Statute LAA s 7C
What constitutes ‘adverse possession’?
A right of action to recover land does not accrue unless the person entitled to possession is out
of possession and some other person in whose favour the limitation period can run is in adverse
possession. When is a person who is entitled to possession regarded as having lost possession?
What constitutes adverse possession?

Case Buckinghamshire County Council v Moran
[1989] 2 All ER 225
JA Pye (Oxford) v Graham [2003] 1 AC 419
22
Whittlesea City Council v Abbatangelo [2009] S&N 11th ed 2.82C
VSCA 188
Textbook MGG 3.60-3.165 S&N 11th ed 2.77-2.86, 2.93
Can successive periods of adverse possession be aggregated vis-a-vis the true owner? How do
courts resolve disputes between successive adverse possessors? What is the effect of
discontinuance of possession by the adverse possessor?

Statute LAA s14(2)
Case Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR
464
How does the person having the cause of action stop time running?

Statute LAA ss 16, 24-26
Part parcel claims: disputes over land adjacent to boundaries: In Victoria, adverse
possession claims may be made with respect to whole parcels or part parcels. Part parcel
claims are more common, and often result from encroachment by neighbours who seek
to have the boundary shifted. Do these two categories raise different considerations?
Why do some States and Territories prohibit the use of adverse possession claims to
adjust boundaries?
Prescribed reading
Article P. O’Connor, “The Private Taking of Land: Adverse OL
Possession, Encroachment by Buildings and
Improvements Under a Mistake” (2006) 33 University
of Western Australia Law Review 31
Victoria, unlike most Australian jurisdictions, has no encroachments statute permitting, in some
circumstances, the courts to order a compulsory sale of land on which a neighbouring owner
has built. (In ch. 4 of its final report on the Property Law Act 1958 (2010), the Victorian Law
Reform Commission recommended the enactment of such a statute.) But sometimes the same
end may be achieved by the refusal of equitable relief against trespass. In what circumstances
will a court award damages in lieu of an injunction to restrain a trespass?
Prescribed reading
Case Jaggard v Sawyer [1995] 1 WLR 269 OL
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd OL
[2007] VSCA 311
The accrual of the right of action in the case of future interests
When does time begin to run in the case of a reversion? What is the situation in relation to a
remainder?

Statute LAA s 10
23
Leases: what rules apply as between landlords and tenants?

Statute LAA ss 10, 13
What is the effect of time lapsing?

Statute LAA s 18 and TLA s 60
Textbook MGG 3.320-3.330 S&N 11th ed 2.63, 2.103
Adverse possession and the Torrens System
The rights of an adverse possessor are protected as exceptions to indefeasibility under the
Torrens System in Victoria.

Statute TLA s 42(2)(b)
24
7. ACQUISITION AND TRANSFER OF PROPRIETARY INTERESTS;
SALE AND GIFT of PROPERTY
INTRODUCTION
There are two main ways in which an interest in real or personal property may be
acquired. These are -
• By transfer (derivative acquisition) of property from a person who already has a
proprietary interest. This is the most common method of acquisition of property.
Derivative acquisition usually arises from a consensual transaction such as a
testamentary disposition where one person (the testator) bequeaths personal property or
devises real property to another person by will, or by sale or a gift made during the lifetime
of the donor (an inter vivos transfer).
Property may also be acquired from a person without that person’s consent (for example
under bankruptcy or compulsory acquisition legislation or confiscation of proceeds of
crime legislation) or pursuant to a court order.
• By original acquisition of property

A person may acquire title to property otherwise than by transfer of title to that property
from some other person. There are various forms of original acquisitions.
- The establishment of native title. See Topic 1.

- A person may acquire an interest in property by creating or inventing it. The
property may not have existed at all in its current form or may have previously
existed in a completely different form, as for example, where property is mixed
together to form a different object.
- Under the common law doctrine of adverse possession and the Limitation of
Actions Act 1958 (Vic), a person may acquire a property interest by taking adverse
possession of land. See Topic 6.
- The doctrine of fixtures works so that in certain circumstances the attachment of
a chattel to land results in the landowner acquiring title to the attached chattel.
(See Topic 2)
A. TRANSFER OF PROPRIETARY INTERESTS
Matters involving transfer of proprietary interests from one entity to another are a common part
of the practice of property law. In this topic we discuss:
• Formal requirements to transfer a legal interest in land
• Transfer of property by gift
• Sale of land; sale of goods
• Statutory regulation of the sale of land
1. FORMAL REQUIREMENTS TO TRANSFER A LEGAL INTEREST IN LAND

(Including the Effect of Failing to Comply with Formalities)
The law imposes formal requirements for the transfer (or “conveyance” as it is known under the
General Law system) of title.
25
What are the formal requirements for the transfer of a legal interest in land? (Note that these
formalities apply to all interests in land, except those specifically excepted.)
Prescribed reading
Statute PLA ss 51, 52
What is a deed?
Prescribed reading
Statute PLA ss 73, 73A
In the case of Torrens system land, the registration of a transfer takes the place of the deed
required by PLA s 52.
Prescribed reading
Statute TLA s 40
Textbook MGG 8.105-8.115
Further Reading:
• Hepburn 10.2-10.5
What is the effect of a failure to satisfy the formal requirements for the transfer of a legal interest
in land (the proprietary effect of contracts)?

Case Lysaght v Edwards (1876) 2 Ch D 499 see also S&N 11th ed 4.46C and
MGG 8.125 – 8.145. 4.51C
Bunny Industries Ltd v FSW Enterprises Pty Ltd S&N 11th ed 4.46C; 4.44,
[1982] Qd R 712 4.47
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA S&N 11th ed 4.51C; 4.50
52; (2003) 217 CLR 315
Further Reading:
• Honey & Mugambwa, ‘The Impending Demise of the Principle in Lysaght v Edwards
and the Ramifications’ in Carruthers et al, Property and Sustainability: Selected
Essays (2011) 331-58 (OL)
• Boge, ‘The Buyer’s “Interest” in Land under an Uncompleted Contract : A Return to
Principle’ (2008) 82 Australian Law Journal 266 (OL)
• MGG 8.125-8.170
• T&D 6.7-6.9
The equitable interest arising in favour of a purchaser under a specifically enforceable contract
of sale is an example of an interest imposed as the result of the application of equitable principles.
In the same way, a specifically enforceable contract for the creation of a mortgage gives rise to
a mortgage effective in equity: ANZ Banking Group v Widin (1990) 102 ALR 289; an agreement
for a profit a prendre gives rise to such an interest in equity (Mason v Clarke [1955] AC 778); and
a specifically enforceable agreement for a lease gives rise to an equitable lease (see Walsh v
Lonsdale (1882) 21 Ch D 9. See Topics 7-9
26
2. GIFTS OF REAL AND PERSONAL PROPERTY
Gifts of Real Property
In the case of land under the Torrens system, a registered document is necessary to pass legal
title. Thus, an effective gift of Torrens title land will require registration of the transfer of land. An
effective gift of general law land requires execution of a deed.
We have also seen that a specifically enforceable contract of sale of land gives rise to an
equitable interest in that land, ie while the vendor retains legal title the purchaser acquires an
equitable interest in the land. The principle in Lysaght v Edwards cannot apply to an attempted
gift of land since, by definition, there is no specifically enforceable contract.
In some cases, a person intending to make a gift may go some way towards carrying out that
intention. For example, a person wishing to make a gift of Torrens system land may execute a
transfer and hand it over to the donee. The question is whether, in certain circumstances the
donee may acquire an equitable interest before the legal interest passes. If so, this is an example
of an equitable interest passing without the parties specifically intending to create it.
For Noting Only: The leading case of Corin v Patton (1990) 169 CLR 540 on gifts of Torrens
system land is considered in Principles of Equity. For further reading concerning the effects of
electronic conveyancing on gifts of Torrens land: see Susan Barkehall-Thomas, ‘Electronic
conveyancing and incomplete gifts of Torrens land’ (2018) 27 APLJ 87.
Further Reading S&N 4.79-4.84
Gifts of Personal Property
Title to goods can be passed by deed of gift or, more commonly, by delivery. What is required
to make a gift by delivery?
Note that gifts of personal property are not considered in the MGG textbook.
Prescribed reading
Case Re Stoneham [1919] 1 Ch 149 OL
Thomas v The Times Book Co Ltd [1966] 2 All ER 241; 242-3,
246
B. SALE OF LAND
Transactions involving the sale of land are complex. There is almost invariably a time lapse (e.g.
30, 60 or 90 days) between the time a contract of sale is made and the time when the deed of
conveyance (general law) or executed transfer (Torrens land) and paper Certificate of Title (if
there is one) are delivered to the purchaser on payment of the balance of the purchase money
(i.e. ‘settlement’). This time lapse allows the purchaser to investigate title and to obtain finance.
In this section we consider what makes a contract for the sale of an interest in land a valid and
enforceable one.
Contracts for the sale of land must satisfy certain formal requirements.
For noting only: Students will have studied the substantive requirements in LAW2101 Contract
A and also examined how these requirements have been modified by cases such as Waltons
Pty Ltd v Maher (1988) 164 CLR 387.
27
Statute Instruments Act 1958 (Vic) s
126
Case ANZ Banking Group v Widin MGG 8.120
(1990) 102 ALR 289 (Federal
Court)
What is the effect of non-compliance with s 126? Can contracts that are not evidenced in
writing ever be specifically enforced? What if they have been part performed?

Case McBride v Sandland (1918) 25 CLR 69 (this case S&N 11th ed 4.38C
refers to the classic statement by the House of Lords
in Maddison v Alderson (1883) 8 App. Cas. 467)
Regent v Millett (1976) 133 CLR 689
ANZ Banking Group v Widin (1990) 102 ALR 289
Pipikos v Trayans [2018] HCA 39 S&N 11th ed 4.40C
Textbook MGG: 8.65-8.70, 8.120, 8.150-8.170
Further Reading:
• S&N 11th ed 4.34-4.43
• T&D 6.13
For noting only: Sale of goods

The requirements for a valid sale of personal property (which passes legal title to that property)
are contained in the Goods Act 1958 (Vic). The Personal Property Securities Act 2009 (Cth)
includes provisions regarding the passing of title in relation to goods, which may override the
terms of the sale. For example, certain conditional sales agreements in which the seller retains
title to an item of personal property are deemed effective to give the seller a security interest in
the property.
1. STATUTORY REGULATION OF LAND SALES
The Sale of Land Act 1962 (Vic) (SLA) imposes certain requirements on the sale of land. These
requirements pertain to matters such as terms contracts, cooling-off periods, deposits, passing
of insurance risk, vendors’ statements and the conduct of auctions. You need to be familiar with
the following sections:
Prescribed reading
SLA s 31 (purchaser’s right to cool off)
SLA ss 32-32P (Vendor’s Statement)
SLA ss 33-33C (Due Diligence Checklist)
SLA ss34-36 (Insurance)
Ziel Nominees Pty Ltd v VACC Insurance Co Ltd
(1975) 180 CLR 175
Textbook MGG 8.285 -8.320
28
PART 3: LEASEHOLD ESTATES
8. LEASEHOLD ESTATES
In Topic 2 we saw that property rights in relation to real property may be subdivided by reference
to time. We have already examined life estates as one way that interests in property can be
fragmented by reference to time (see Topic 3). Leasehold estates are a common way in which
fragmentation can also occur in this way.
Historical Background to the Development of Leases
What is a lease? For what purposes were leases originally developed? Were leases initially
regarded as creating proprietary interests or contracts? Why were leases classified as personal
property and not as real property?

Further Reading:
• T&D 10.1
Terminology
Who is the ‘lessor’ and who is the ‘lessee’?
Do the words ‘lease’ and ‘tenancy’ mean the same thing?
What does ‘demise’ mean? What is a leasehold reversion?
What is the distinction between a sub-lease and an assignment?

Further Reading:
• T&D 10.2
A. CLASSIFICATION OF LEASES
There are four main different types of leases:

• a tenancy for a fixed term or term of years
• a periodic tenancy
• a tenancy at will
• a tenancy at sufferance (“holding over”)

Textbook MGG 14.55-14.75 S&N 11th ed 8.15, 8.18-
8.21
Further Reading:
• T&D 10.8-10.15;
• Hepburn 7.2
29
Can you have a lease for life?
30
B. CHARACTERISTICS OF LEASES
Exclusive Possession
What is the distinction between a lease and a licence? Is the right to exclusive possession a
distinguishing characteristic?

Case Radaich v Smith (1959) 101 CLR 209 S&N 11th ed 8.23C
Street v Mountford [1985] 1 AC 809
Swan v Uecker [2016) VSC 313 S&N 11th ed 8.26C
Further Reading:
• T&D 10.5-10.6
• MHP 11.2.3-11.2.4
• Hepburn 7.5-7.7
Certainty of Duration
What requirements exist in relation to the duration of leases?
Prescribed reading
Case Lace v Chantler [1944] KB 368 S&N 11th ed 8.15
Textbook MGG 14.25
Note that the ‘perpetual lease’, a lease granted in perpetuity, was unknown to the common law
and exists only under special provisions in Crown lands legislation. They are mainly pastoral
leases. We do not examine them.
How is the rule relating to certainty of duration applicable to periodic tenancies?
Further Reading:
• T&D 10.4
• P&G 231
• Hepburn 7.9
C. FORMAL CREATION OF LEASES
The formal requirements for the creation of interests in land, including leases, will be studied in
the next Topic 10.
D. LEASEHOLD COVENANTS
The rights and duties of landlords and tenants may derive from a number of sources. These
include:
• covenants expressly agreed to between the parties
• covenants implied by statute
• covenants implied by the common law
31
Covenants expressly agreed to between the parties
Covenants contained in leases often include:

• a covenant to pay rent
• a covenant to repair
• a covenant not to assign or sub-let the premises without the prior consent of the landlord
(see below)
• a covenant restricting the use of the premises.

Textbook MGG 14.210 S&N 11th ed 8.56-8.57,
8.92-8.94, 8.115
Further Reading:
• Hepburn 7.23
Covenants implied by the common law
Why might covenants need to be implied into leases?
(i) Covenants implied because of the existence of custom/usage
Terms may be implied into a lease because of the existence of custom or usage.
(ii) Covenants implied in fact to give business efficacy to the lease
Terms may be implied in fact to give the lease ‘business efficacy’. Under the test set out
in BP Refinery (Westernport) P/L v Hastings Shire Council (1977) 180 CLR 266, for a
term to be implied, it must be reasonable and equitable, necessary to give ‘business
efficacy’ to the contract, so obvious it ‘goes without saying’ and be capable of clear
expression. It must also not contradict any express terms.
(iii) Covenants implied by law irrespective of the parties’ intentions
Terms may be implied by law either by virtue of the nature of the contract itself (or by
virtue of the nature of the contractual obligations) or by operation of statute. These terms
are implied by law even though the parties may not have intended to include them.

Textbook MGG 14.215 S&N 11th ed 8.58
The common law imposes certain rights and duties on landlords and tenants (although such
covenants do not apply if there is an express covenant in the lease dealing with the same subject
matter). The implied covenants are less important today. In the context of residential tenancies,
the rights and obligations of tenants are regulated by legislation. In commercial leases, the rights
and duties are usually expressly set out. But there are still some circumstances in which the
tenant needs the protection of the implied covenants, because the landlord has done something
unexpected.
Implied obligations of the landlord
32
(i) Implied condition of fitness for human habitation at the commencement of the
lease
(ii) Implied covenant for quiet enjoyment

Case Hawkesbury Nominees Pty Ltd v Battik Pty Ltd S&N 11th ed 8.68
[2000] FCA 185
Textbook MGG 14.225
(iii) Implied obligation not to derogate from the grant

Case Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 S&N 11th ed 8.69C
Qd R 1
Nordern v Blueport Enterprises [1996] 3 NZLR 450 S&N 11th ed 8.71
Textbook 14.220 S&N 11th ed 8.59-8.79
Further Reading:
• T&&D 10.22
• Hepburn 7.16, 7.17, 7.20
Implied obligations of the tenant
(i) Implied covenant to use the premises in a tenant-like manner

(ii) Implied duty not to commit waste
(iii) Implied covenant to yield up possession.

Textbook MGG 14.200, 14.235 S&N 11th ed 8.85-8.86
Further Reading:
• T&&D 10. 23
• Hepburn 7.21, 7.22
Note: many of these common law implied covenants overlap with statutory obligations.
Covenants implied into leases by statute
Leases of Torrens System land

Statute TLA ss 67; 71(4); 112
Textbook MGG 14.125; 14.165; 14.170; 14.195; 14.205; S&N 11th ed 8.87-8.90
14.230; 14.310; 14.330 (references to above
sections only)
33
- Residential tenancies: The rights and obligations of landlords and tenants in relation to
residential premises are regulated by the RTA.
- Retail tenancies: The rights and obligations of landlords and tenants in relation to
residential premises are regulated by the RLA.
E. ASSIGNMENT OF LEASES
What is an assignment? What is a sublease?
The effect of a covenant not to assign or sublet the premises without prior consent of the landlord
has been modified by PLA s144. How can the effect of this provision be avoided?

Statute PLA s 144
Textbook MGG 14.245-14.265 S&N 11th ed 8.106-8.110,
8.112
Further Reading:
• Hepburn 7.26, 7.27
F. ENFORCEABILITY OF LEASE COVENANTS AFTER ASSIGNMENT
Where a landlord and tenant enter into covenants, or such covenants are implied by law, the
covenant will be enforceable between the parties on the basis of privity of contract. Provided the
terms of the covenant cover breaches after assignment, the lessee may be liable for damages
for a breach of covenant committed by an assignee of the lease.
However in many cases the question arises whether the covenants are enforceable by or against
an assignee of the reversion, or by or against an assignee of the lease. In this area a significant
exception developed to the doctrine of privity of contract, which allowed the burden and benefit
of certain covenants in leases to run with the lease. Statutory provisions have allowed the burden
and benefit to also run with the reversion.
Prescribed reading Recommended

reading
Statute PLA s 77, 78, 79, 136, 141, 142
Case Spencer’s case (1583) 5 Co Rep 16a; 77 ER 72 OL
Gumland Property Holdings v Duffy Bros Fruit S&N 11th ed 8.182C
Market (Campbelltown) (2008) 234 CLR 237;
[2008] HCA 10, [66] – [86], [90] – [108]
Textbook MGG 14.270-14.295 S&N 11th ed 8.118-
8.133
Further Reading:
• T&D 10.29-10.37
• MHP 11.5.3
• Hepburn 7.28-7.31
34
G. DETERMINATION OF LEASES (for noting only)
The termination of leases is not examinable in this course. However, following is a brief outline
of the way in which leases can be brought to an end.
Leases may be terminated by several methods.
(1) Effluxion of time. The most obvious method of termination is by effluxion of time. This occurs
where a fixed term lease comes to the end of its term, in which case (subject to any extension
by agreement or by statute) it expires naturally. A periodic lease may be terminated in
accordance with its terms (as modified or regulated by statute in some circumstances) by the
giving of proper notice. At common law, a periodic lease can be terminated by either party by
giving a notice to quit. The required amount of notice depends on the length of the period of the
lease. If it is a weekly periodic tenancy, the required notice is a week, if is a monthly periodic
tenancy, the required notice is a month etc. The common exception is a yearly periodic tenancy
that only requires 6 months’ notice to be given. These rules have been varied by legislation (see
the Residential Tenancies Act 1997 Part 6, Division 1 and the Retail Leases Act 2003 s 64). A
fixed term lease generally cannot be prematurely determined prior to the end of the fixed term by
the issue of a notice to quit, unless the lease provides otherwise. For example, parties to an 8-
year lease may insert a clause into that lease which allows either party to determine the lease
after 4 years by the giving of six months’ notice.
A lease may also be terminated artificially before the end of its term by various means. Since
termination may involve the passing of the property interest held by the tenant for the balance of
the unexpired term back to the landlord, it may be regarded as another example of acquisition
and transfer of a proprietary interest, and principles relevant to that topic apply. Some of the
ways in which leases can be artificially terminated include:
(2) Forfeiture. The right to forfeit is the right of the landlord to determine the lease prematurely
on the ground that the tenant has breached a term of the lease. Breach of a term renders the
lease terminable at the landlord’s option. The landlord has to choose whether to regard the lease
as continuing despite the breach, or to regard the lease as terminated through the exercise of his
or her right of re-entry. In certain circumstances the tenant can seek relief against forfeiture.
(3) Frustration. Because a lease is a contract as well as a form of property, the contractual
doctrine of frustration can apply to the termination of a lease.
(4) Repudiation. Because a lease is a contract as well as a form of property, the contractual
doctrine of repudiation applies to leases of land, at least as between the original lessor and
lessee. What needs to be established in order to constitute a repudiation is that one party evinces
an intention no longer to be bound by the contract or shows that he intends to fulfil the contract
only in a manner substantially inconsistent with his obligations and not in any other way. The
lease and the estate it creates will be terminated if one party accepts the repudiation by the other,
of his or her obligations. The benefit to the landlord of having a contractual right to terminate a
lease is that the tenant may be liable for loss of future rent in some circumstances.
(5) Surrender. Surrender is an act on the part of the tenant whereby the tenant offers to yield
up the balance of the unexpired term of his or her leasehold estate to the landlord, and the
landlord accepts the surrender. The essential elements of a surrender are that the tenant offers
to give up the lease and the landlord accepts the offer. It is therefore a relinquishing of the lease
with the landlord’s consent. A tenant cannot at will divest himself of a lease. The lease is
terminated upon acceptance of the surrender. Surrender can occur expressly or by operation of
35
law e.g.: where the tenant abandons the property and the landlord chooses to accept the
abandonment as a surrender and re-let the property.
(6) Merger. A merger occurs where the lease and the reversion become vested in the same
person in the same capacity. For example, a merger occurs if the landlord buys the lease, or if
the tenant buys the reversion, or if a third party buys both the lease and the reversion. The crux
is that the lease and the reversion are held by the one person in the same capacity. Subject to s
185 of the PLA, the lease is immediately determined by operation of law. The position in relation
to registered leases of Torrens System land is different. A registered lease is not to be held to
have merged as long as it remains registered as a separate interest. Persons acquiring the lease
or the reversion must apply to the registrar for the removal of the lease from the register.
Prescribed reading
Further Reading:
• Hepburn 7.32-7.36
H. REGULATION OF LEASES (For Noting Only – Not Examinable)
In the modern context, leases are subject to detailed statutory regulation.
Residential tenancies (For Noting Only)
Residential tenants are protected by the Residential Tenancies Act 1997 (Vic), which operates
as a code. The Act also provides special protection to residents of rooming houses, caravan
parks and mobile homes.
For noting only: The RTA imposes a wide range of obligations onto landlords and tenants in
respect of: repairs and maintenance (RTA s763, 68), use of the premises by the tenant (RTA ss
59-64) determination of rent (RTA s 42, 44-49). Further information about residential tenancies
can be found at www.consumeraffairs.vic.gov.au
Retail leases ((For Noting Only)
Business tenants are provided with some protection by the Retail Leases Act 2003 (Vic). The
RLA applies to certain leases of ‘retail’ premises entered into after 1 May 2003 (an earlier Act
continues to regulate leases entered into before this date). The main purpose of the Act is to
“enhance…the certainty and fairness of retail leasing arrangements between landlords and
tenants…and the mechanism available to resolve disputes concerning leases of retail premises”
(s. 1).
The RLA contains a host of provisions which impose obligations on landlords and tenants. Some
of the provisions apply only to leases of retail shopping centres. The provisions pertain to matters
36
such as entering into a retail premises lease, the fit-out of premises, how rent can be determined
and reviewed, outgoings, repairs, refurbishment and other disruptions to the tenant.
Note that the Victorian retail leases legislation is not considered in detail in the MGG textbook.
Useful texts on the RLA:
Bradbrook, Croft and Hay, Commercial Tenancy Law (LexisNexis; 3rd ed; 2009)
Available on LexisNexis online:
https://login.ezproxy.lib.monash.edu.au/login?url=http://www.lexisnexis.com/au/legal/results/renderToc
Browse.do?rand=1496974829873&csi=361978&pap=srcdir
Further reading:
• VSBC, ‘What are retail premises?’ (December 2015) (OL)
• VSBC, ‘Retail leasing information brochure’ (OL)
37
9. CREATION OF LEASEHOLD INTERESTS
Prescribed reading
A. LEGAL LEASES
General Law land
How was a legal leasehold interest created in respect of general law land? In relation to General
Law land, a legal interest, including a legal lease, must be created by deed. However, there is an
exception for those leases that may exist under s 54(2) of the PLA. These are leases for a term
not exceeding three years, taking effect in possession, at the best rent which can be reasonably
obtained without taking a fine. Leases fitting this description are legal, notwithstanding that they
are not created by deed.
Torrens system land
What are the formal requirements for the creation of a lease of Torrens system land? What is
the effect of an unregistered lease of Torrens system land when the lease complies with s 54(2)
of the PLA? Does it create a legal or an equitable interest?

Statute TLA ss 66(1)
Textbook MGG 14.120
Is the interest of an unregistered lessee of Torrens system land enforceable against a registered
proprietor who acquired title from the lessor?
Prescribed reading
Statute TLA ss 42(2)(e)
Textbook MGG 14.130 – 14.135
B. EQUITABLE LEASES
How is an equitable leasehold interest created in respect of general law land and Torrens System
land? What are the formal requirements for an enforceable agreement for a lease?
An equitable lease may be created by specifically enforceable agreement, under the principle of
Walsh v Lonsdale, provided the agreement complies with s 126 of the Instruments Act 1958 (Vic)
or is enforceable under the doctrine of part performance.

Statute Instruments Act 1958 (Vic) s 126
Cases Walsh v Lonsdale (1882) 21 Ch D 9; see also MGG S&N 11th ed 4.61-4.65
14.105 – 14.110.
Chan v Cresdon Pty Ltd (1989) 168 CLR 242, 251, S&N 11th ed 4.64
256
38
Does Walsh v Lonsdale stand for the proposition that an agreement for a lease is as good as a
lease?
The principle in Walsh v Lonsdale does not apply in a situation where a contract for the sale of
an interest in land (including an agreement for a lease) is not specifically enforceable. Unlike the
legal remedy of damages, which is automatically available to a person whose legal right has been
infringed, equitable remedies are discretionary.
Further Reading:
• T&D 10.16 - 10.20
39
10. THE BORDERLINE BETWEEN CONTRACT AND PROPERTY:
CONTRACTUAL LICENCES
A person with a contractual right only has the right to enforce the contract against the other
contracting party. By contrast, a person with property in a ‘thing’ can exclude third parties from
that thing. Contractual licences are often described as the borderline between property and
contract. You need to consider whether some of the following cases blur the distinction between
property and contract.
A. DIFFERENT TYPES OF LICENCES
What is the difference between:
• A bare licence?
• A contractual licence?
• A licence coupled with a grant?
B. REVOCATION OF CONTRACTUAL LICENCES: THE POSITION BETWEEN

THE CONTRACTING PARTIES
What remedy or remedies are available to a contractual licensee whose licence is revoked?
Can a contractual licensee obtain damages for trespass if evicted from the property to which the
licence relates?
In what, if any, circumstances can a contractual licensee obtain an injunction to prevent

revocation of the licence in breach of contract? If an injunction is available to prevent revocation
of the licence in breach of contract, does it follow that the contractual licensee has a proprietary
interest in the land?
Was Latham CJ correct in Cowell v Rosehill Racecourse Ltd in holding that a decision in favour
of the plaintiff would have given him a proprietary interest in the racecourse? For what proposition
is Cowell authority in Australia?

Case Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR S&N 11th ed 1.18C
605
Heidke v Sydney City Council (1952) 52 SR (NSW) S&N 11th ed 1.20, 1.21
143
Sigma Constructions (Vic) Pty Ltd v Maryvell S&N 11th ed 1.22
Investments Pty Ltd [2004] VSCA 242 [27]-[33]
Further Reading:
• T&D 13.7-13.14
• P&G 11-12
40
• MHP 10.4-10.6
• Chambers 214-215
• Hepburn 1.10 - 1.14
C. CAN CONTRACTUAL LICENCES EVER BE ENFORCED AGAINST THIRD

PARTIES?
Note that the following cases are not considered in detail in the MGG textbook. Sufficient detail
will be provided in lectures. Students may also look at the Online Reading List (OL) for further
reading.

Case King v David Allen Billposting Ltd [1916] 2 AC 54 S&N 11th ed 1.24C, 1.25
Georgeski v Owners Corporation SP 49833 (2004) S&N 11th ed 1.28C
62 NSWLR 534 (this case considers the more liberal
approach taken in Manchester Airport v Dutton
[2000] QB 133)
Further Reading:
• T&D 6.26-6.27
• MHP 10.7-10.8
• Chambers 216-218
• Brendan Edgeworth, ‘The Numerus Clausus principle in Contemporary Australian
Property Law’ (2006) 32 Monash University Law Review 387 at 389-395, 408-411 (OL
OR S&N 11th ed 1.30E)
41
PART 4: SERVITUDES
11. EASEMENTS
In Topic 1 we saw that the property phenomenon does not refer to a ‘thing’ but a relationship
between legal persons (the ‘subjects’ of property) and ‘objects’ of property rights.
The property rights in relation to a particular object may be subdivided in a number of ways,
including by reference to the nature of the right.
recognise a variety of rights in property which do not give the holder a right to possession. For
example, this is based on rights of use and enjoyment — A person may have the right to use
another person’s property in a particular way. This right may be recognised as a servitude interest
in land.
INTRODUCTION TO SERVITUDE INTERESTS:
Servitude interests include easements, profits à prendre and restrictive covenants. They are
sometimes referred to as incorporeal hereditaments, because they do not confer a right to
possession.
Servitude interests are by nature non-possessory interests by which proprietary rights might exist
in another person’s property. For example, a person with an easement has the right to use or
(more rarely) restrict the use of land in which another person has a freehold or leasehold interest,
in a particular way. The owner of the dominant land can bring an action in nuisance against
anyone who interferes with an easement. Our focus in this topic is solely on easements.
A. WHAT IS AN EASEMENT?
A grant that gives one person the right to use land owned by another cannot be an easement
unless it satisfies certain characteristics. The law determines these characteristics, i.e., even if
the parties wish to create an easement they will not succeed unless the interest satisfies these
requirements.

Further Reading:
• T&D 13.1-13.4, 13.6
• Hepburn 13.1
B. CHARACTERISTICS OF AN EASEMENT
(1) There must be a dominant and servient tenement
42
(2) The easement must be for the benefit of the dominant tenement
(3) The dominant and servient tenements must not be owned and occupied by the
same person
(4) The easement must be capable of forming the subject matter of a grant.

Statute PLA s 197
Case Re Ellenborough Park [1956] Ch 131 S&N 11th ed 10.2, 10.11C
Riley v Penttila [1974] VR 547 S&N 11th ed 10.21
Clos Farming Estates v Easton [2002] NSWCA 389
[paragraphs 1-50]
S&N 11th ed 10.12C,
Regency Villas Title Ltd and others v Diamond 10.15C, 10.19C
Resorts (Europe) Ltd and others [2018] UKSC 57
Textbook MGG 17.35-17.120 S&N 11th ed 10.2,

10.11C-10.23
Further Reading:
• T&D 13.7-13.14
• Hepburn 13.5-13.12
Can a right of co-occupation amount to an easement?

Case Copeland v Greenhalf [1952] 1 Ch 488 S&N 11th ed 10.22
Textbook MGG 17.95
Certain statutes create rights which they call easements even though they may not have all the
characteristics required at common law. Commonly they are easements held by a service
provider such as a water authority for the placement of pipes, drains or cables under or over land.
These are statutory easements in gross, which means that there is no requirement that they
benefit any dominant tenement owned by the holder of the easement. Easements in gross can
exist only under legislation.
Further Reading:
• MGG 17.275
C. SCOPE AND CONSTRUCTION OF EXPRESS COVENANTS IN EASEMENTS

Case Cargill v Gotts [1981] 1 WLR 441
Westfield Management Ltd v Perpetual Trustee S&N 11th ed 10.33,
Company Ltd [2007] HCA 45; 239 ALR 75; (2007) 10.34C
233 CLR 528
Further Reading:
• T&D 13.39
43
• Hepburn 13.35-13.37
• Matthew Barber, ‘Problems with Westfield’ (2013) 22 Australian Property Law Journal
143 (OL)
D. COMMON TYPES OF EASEMENTS
Positive and negative easements

• Rights of way
• Rights of drainage over neighbouring land
• Rights to support
• Rights of light (but see limitation: PLA s 195)
• Rights of air
• Fencing easements
• Miscellaneous novel easements
• Statutory easements
Prescribed reading
Textbook MGG 17.105 – 17.115, 17.320, 17.350, 17.355 OL
E. CREATION OF EASEMENTS
Further Reading:
• Hepburn 13.15 – 13.34
• S&N 10.54
Creation of easements by express grant
Legal easements generally require a deed (general law land) or registration (Torrens system
land)
Equitable easements generally require a specifically enforceable contract. However, they can
also arise by estoppel. Moreover, someone with an equitable fee simple is only able to create an
equitable easement.

Further Reading:
• T&D 13.18-13.20
Creation of easements by express reservation

Statute PLA s 65
44
Creation of easements by implied reservation

Textbook MGG 17.140-17.160 S&N 11th ed 10.78C-
10.79
Further Reading:
• T&D 13.30-13.32
Easements of necessity
Creation of easement by implied grant
(i) Easements of necessity (as above)
S&N 10th ed 10.73-10.76

S&N 11th ed 10.72-10.75
(ii) The rule in Wheeldon v Burrows: continuous and apparent easements (For Noting
Only)
Prescribed reading
Case Wheeldon v Burrows (1879) 12 Ch D 31
S&N 11th ed 10.59, 10.78C-10.79
Hepburn p 995
BMM 17.100
(iii) As part of a subdivisional plan
Prescribed reading
Statute TLA s 98
Subdivision Act 1988 (Vic) s 12, 24
Case Body Corporate No 413424R v Sheppard (2008) 20
VR 362
Further Reading:
• T&D 13.22 – 13.29
Creation of easements by prescription (long user)

Case Sunshine Retail Investments Pty Ltd v Wulff [1999]
VSC 415; (2000) V Conv R 54-618
Laming v Jennings [2018] VSCA 335
Textbook MGG 17.205-17.230 S&N 11th ed 10.80, 10.86-
10.90
45
Further Reading:
• T&D 13.33 – 13.36
In its final report (no. 22) on Easements and Covenants (2011), the Victorian Law Reform
Commission recommended the abolition of easements by prescription and some types of
implied easement, and proposed the creation of a process for the imposition of easements in
appropriate circumstances by order of VCAT. To date these recommendations have not been
adopted.
F. EXTINGUISHMENT OR MODIFICATION OF EASEMENTS
By statute
By agreement
By abandonment
By alterations to the dominant tenement
By unity of seisin

10.115
G. EASEMENTS AND THE TORRENS SYSTEM
Easements “howsoever acquired” are exceptions to indefeasibility under the Torrens System in
Victoria. This means that they run with the burdened land whether they are registered or not: TLA
s 42(2)(d). This will be explored in more depth in Property B.

10.117
Further Reading:
• T&D 13.46
46
12. RESTRICTIVE COVENANTS
Background reading:
• MGG 18.25-18.30; 18.125 OR S&N 9.110
A. CHARACTERISTICS OF A RESTRICTIVE COVENANT

PLA ss 78, 79
Case Tulk v Moxhay (1848) 2 Ph 774; 41 ER 1143 S&N 11th ed 9.31C
Pollard v Registrar of Titles [2013] VSC 286
Textbook MGG 18.05 – 18.20; 18.50 – 18.65 S&N 11th ed 9.37, 9.41-
9.43, 9.46-9.48, 9.59
B. CREATION OF A RESTRICTIVE COVENANT
For noting only: A restrictive covenant can be created by contract, by building scheme, or by
statute. If created by statute, restrictions may be imposed by the statute itself, or as a result of
the plan of subdivision from which the land was created. The requirements of a “building
scheme” are explained in Fitt v Luxury Developments Pty Ltd [2000] VSC 258 at paras [138] -
[149].
C. REMOVAL AND VARIATION OF RESTRICTIVE COVENANTS

Once a restrictive covenant has been established in relation to particular land, it can only be
removed in specific ways. These include:
• Express agreement between the land holder, and persons who benefit from the
restrictive covenant (ie express release);
• Passage of time (if covenant limited to a certain time period)
• Unity of ownership

Textbook MGG 18.195; 18.200 S&N 11th ed 9.88-9.94,
9.97
Removal and/or variation by court order, or under legislation
Most commonly, a restrictive covenant will be removed or varied by court order, or under
planning legislation:

Statute PLA s 84
Subdivision Act 1988 s 23
Case Vrakas v Registrar of Titles [2008] VSC 281 S&N 11th ed 9.104C-
9.105
Textbook MGG 18.215
47
For noting only: Restrictive covenants may also be removed under the Planning and
Environment Act 1987 (Vic) ss 6(2)(g), 60.
For noting only: In circumstances where a registered mortgagee has sold property subject to
its statutory powers of sale (see LAW3402 Property B), it may seek removal of any restrictive
covenant registered on the title to the land subsequent to the registration of its mortgage
without prior consent: TLA s 88B
Further reading
• VLRC, Easements and Covenants Final Report (2011) Ch 7 (OL)
48
PART 5: SECURITY INTERESTS
13. SECURITY INTERESTS
In Topic 2 we saw that property rights in relation to a particular object may be subdivided by
reference to the nature of the right.
recognise a variety of rights in property which do not give the holder a right to possession. For
example, a person may have an interest in lad because the land has been used as security for
the repayment of money. Security interests include charges and mortgages.
A. THE PURPOSE AND TYPES OF SECURITY INTERESTS
What is the nature of a security interest?
Why is a creditor with a secured debt in a better position than a creditor with an unsecured debt?
There are various forms of security interest that may be appropriate in different contexts. One of
the most widespread forms of security interest is the mortgage. Other types of security interests
include charges (fixed and floating), pledges, liens and hire purchase agreements. In this subject
we focus solely on mortgages.

Textbook MGG 7.05 – 7.20; 7.35 S&N 11th ed 11.1-11.3,
11.31
Further Reading:
• T&D 14.1, 14.4-14.8;
• Hepburn 15.1
B. THE NATURE AND TYPES OF MORTGAGES
Under a “true” mortgage (such as a legal mortgage of general law land), the lender (mortgagee)
takes legal title to the property while the debt is outstanding, but the lender must reconvey it to
the borrower (mortgagor) when the debt is repaid. Although the mortgagee has legal title, s/he
may not generally exercise the usual rights of ownership (such as the rights to use or sell the
land) unless there has been a default in payment. Thus, the mortgagee’s ownership is said to
be by way of security only, and the mortgagor retains an equitable interest in the property.
The equitable interest of the mortgagor developed historically from the protection offered by the
Courts of Equity to the mortgagor against the harsh or unconscionable exercise of the
mortgagee’s rights as legal owner. This interest is referred to as the mortgagor’s ‘equity of
redemption’.
Under the Torrens system, the mortgagee does not become the legal owner, but acquires a
registered interest, while the mortgagor remains the legal owner (or registered proprietor, to use
the terminology of the Torrens system). In theory, a Torrens system mortgage is not a “true”
mortgage at all, but rather a statutory charge or hypothecation security. Nevertheless, on a
practical level the Torrens system mortgage works in much the same way as the general law
land mortgage.
49
It is also possible for a lender to acquire an equitable mortgage - that is, a mortgage that will be
recognised and enforced in equity, though the mortgagee does not acquire legal title (for general
law land) or register his or her mortgage (for Torrens system land). For equity to recognise a
mortgage there must be a specifically enforceable contract evidenced in writing or supported by
sufficient acts of part performance (see ANZ Banking Group v Widin (1990) 26 FCR 21) as
discussed in Topic 7. The advance of a sum of money by the lender upon the borrower handing
over the title deeds are regarded as acts of part performance, giving rise to the form of equitable
mortgage known as the ‘mortgage by deposit of title deeds’. Under the Torrens System, the
owner’s certificate of title took the place of the title deeds and could be used in the same way to
create an equitable mortgage. With the introduction of electronic conveyancing, there is a move
to abolish certificates of title, but they are still in existence for now.
For noting only: On 1 July 2010 the National Consumer Credit Protection Code, known as the
National Credit Code (“NCC”), took effect in Victoria following the enactment of the National
Consumer Credit Protection Act 2009 (Cth) as (inter alia) a result of the referral to the
Commonwealth of the power to legislate with respect to consumer credit by the states. The NCC
is Schedule 1 of that Act. In general, the NCC applies to contracts under which a natural person
borrows money or is given credit for predominantly household, domestic or private purposes in
relation to acquiring or renovating a residential home or investment property. You will study the
NCC in greater detail in LAW3402 Property B.
The creation of equitable mortgages without written documentation is now restricted by the
National Credit Code, in transactions to which the Code applies.
Other forms of security interest include charges, floating charges, pledges, liens, and hire-
purchase agreements. Students are expected to be sufficiently familiar with these transactions
to recognise the existence and nature of the rights created. However, detailed knowledge of
statutory and common law regulation is not required.
For noting only: A mortgage is one way by which a purchaser of land can finance the purchase.
A purchaser of land may also enter into a terms contract with the vendor under which the
purchaser takes possession before all the purchase money is paid. The purchaser pays a
substantial deposit and repays the balance of the purchase price and accrued interest in
instalments. Legislation has made the terms contract convertible into a traditional mortgage at
the option of the purchaser/borrower: see SLA Part 1 Div 4 (ss 29A-29W)
General Law Mortgages
What is the nature of a general law mortgage?
What kind of an interest has a mortgagor of general land? What is this interest called?
How is a legal mortgage of general law land created?
Why are second mortgages of general law land necessarily equitable?
Are there any other ways in which an equitable mortgage can be created?

Textbook MGG 7.40-7.55; 7.80 S&N 11th ed 11.32-11.37
Further Reading:
• T&D 14.2, 14.10;
50
• Hepburn 15.2, 15.13
Torrens System Mortgages
How is a legal mortgage of Torrens system land created?
Prescribed reading
Statute TLA s 74
What is the difference between a Torrens system and a general law mortgage?
What is the difference between the right of “redemption” under the Torrens System and under
the general law?
Can there be an equitable mortgage of Torrens system land?
What is the status of a second mortgage of Torrens system land? Is it legal or equitable?

Further Reading:
• T&D 14.3
• Hepburn 15.14-15.16
C. SECURITY INTERESTS IN PERSONAL PROPERTY (FOR NOTING

ONLY)
It is also possible to have mortgages and other security interests over all sorts of chattels
(personal property).
Traditionally, as with security interests over land, these interests were not recorded on any
register. Latterly registers were created for some classes of chattels, such as cars.
Comprehensive legislation for the registration of security interests over chattels was introduced
through the Personal Property Securities Act 2009 (Cth), which commenced operation on 30
January 2012. The Act establishes a national scheme for the registration of security interests
(such as a mortgage: s12) in personal property (such as a vehicle: s3, s8, s10) and, to this effect,
creates the Personal Property Securities Register (PPSR). This important reform is not
examinable in Property A but students, as future practitioners, should be aware of its existence.
See further: http://www.ppsr.gov.au
51

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PROPERTY A

Daniel Fitzpatrick, Vanessa Johnston, Paul Brenner, Pam O’Connor, Sharon

Produced and Published by:

1. Material followed by (‘OL’) is available electronically through the library resources

2. Readings are marked as follows:

UNIT RESOURCES: GENERALLY

UNIT RESOURCES: LEGISLATION

Highly recommended textbooks for general reference

Other recommended textbooks for general reference

Textbooks on specific topics

Jourdan, Adverse Possession, (LexisNexis Butterworths, 2003)

Veljanovski, Economic Principles of Law (Cambridge University Press, 2007)

Whalan, The Torrens System in Australia (Lawbook Co, 1992)

PART 1: CONCEPTS OF PROPERTY AND OWNERSHIP 7

1. THE CONCEPT OF PROPERTY 7

2. FRAGMENTATION OF PROPRIETARY INTERESTS 12

3. AN INTRODUCTION TO TITLE TO LAND 14

4. AN INTRODUCTION TO LEGAL AND EQUITABLE INTERESTS IN LAND 15

PART 2: FREEHOLD ESTATES 17

5. THE DOCTRINES OF TENURE AND ESTATES; LIFE ESTATES 17

6. THE DOCTRINE OF RELATIVITY OF TITLES; ADVERSE POSSESSION 20

7. ACQUISITION AND TRANSFER OF PROPRIETARY INTERESTS; SALE AND GIFT OF PROPERTY 25

PART 3: LEASEHOLD ESTATES 29

9. CREATION OF LEASEHOLD INTERESTS 38

10. THE BORDERLINE BETWEEN CONTRACT AND PROPERTY: CONTRACTUAL LICENCES 40

12. RESTRICTIVE COVENANTS 47

PART 5: SECURITY INTERESTS 49

13. SECURITY INTERESTS 49

How do property interests differ from contractual interests?

Prescribed reading Recommended reading

C. PROPERTY AND THE RADICAL TITLE OF THE CROWN

Prescribed reading Recommended reading

Prescribed reading Recommended reading

When may it be important to differentiate between real and personal property?

Prescribed reading Recommended reading

In what contexts might the doctrine of fixtures assume significance?

Tests for determining whether a chattel has become a fixture

Prescribed reading Recommended reading

Prescribed reading Recommended reading

By reference to whether the interest is equitable or legal (equitable interests generally

By reference to the nature of the right (i.e. “the Bundle of Rights")

A. GENERAL LAW LAND: THE DEEDS SYSTEM

Prescribed reading Recommended reading

B. THE TORRENS SYSTEM

Prescribed reading Recommended reading

A. ACQUISITION OF EQUITABLE INTERESTS IN LAND

The historical development of equitable jurisprudence

Prescribed reading Recommended reading

For noting only: How do trusts arise?

Trusts can arise in a number of ways.

e.g. A conveys Blackacre to T on trust for B.

A trust may also be created by will

2. Trusts arising by operation of equitable principles

A trust may also be presumed or imposed by a court exercising equitable jurisdiction. A

Examples of implied trusts include (considered in LAW3402 Property B):

• the constructive trust which, in certain circumstances will arise in favour of a

5. THE DOCTRINES OF TENURE AND ESTATES; LIFE ESTATES

Prescribed reading Recommended reading

What are the freehold estates?

What are the characteristics of a fee simple estate?

What are the characteristics of a life estate?

• Can a life estate be alienated (sold or given away) by its holder?

Prescribed reading Recommended reading