I will not say with Lord Hale, that "The Law will admit of no rival"...
but I will say that it is a jealous mistress, and requires a long and constant 
courtship.
It is not to be won by trifling favours, but by lavish homage.1

Property Law Table of Contents

In this chapter

Property

(a)	Generally
(b)	Possession and Ownership

Realty and Personalty
Real Property

(a)	Generally
(b)	Fixtures
(c)	Strata

Personal Property
Leaseholds


1.	Property.

(a)	Generally.

The word "property" when it is used by lawyers may refer to an object of 
ownership or the rights of ownership. Examples of property in the first sense 
are land, cars, shares in a company or patents. In talking about property as 
rights you will hear expressions such as "the property in the goods passed to the 
buyer" or "he has no property in that land".

What is property? It is a collection of rights, privileges, powers and control.

(b)	Possession and Ownership.

The legal rights called property should be distinguished from the legal rights 
called possession. One meaning of possession is the physical control of a 
thing by a person. The law has attached advantages to the physical possession. 
In Armory v. Delamirie 2  the Court held that the possession in fact of a jewel by 
a chimney sweep found while cleaning a chimney was some evidence of 
ownership. This possession was effective against the whole world except a 
person who can prove that he has a better title. Since the defendant in that case 
could not prove a better title. The only title the defendant derived was through 
the chimney sweep.

It would be possible to prove a better kind of ownership called "historical 
ownership". For example, a person may be able to produce a receipt or a deed 
proving he purchased the property. In such a case he will be able to show a 
"chain of title". The further back a chain of title can be proved the stronger the 
claim to historical ownership.

There are laws which limit the period within which legal proceedings can be 
instituted. After the expiry of the statutory period a person in unlawful 
possession cannot be sued and his possessory ownership becomes 
unchallengeable.

Legal possession may be defined as the right as against the owner to the 
immediate possession, use and benefit of the property. A mere right to 
possession is something less than all the rights of ownership. It is said that the 
owner has the general property in an object while other persons may have a 
special property, for example, as the interest of a lessee.

Actual possession is constituted by physical control and an intention to exclude 
others. In many cases the issue becomes whether the finder's title should prevail 
or whether the goods can be said to have been in the possession of the occupier 
of the premises although he was unaware of their existence. A situation where a 
person may be thought to be the actual possessor but will not succeed is that 
where he finds goods in the course of his employment.

In Grafstein v. Holme & Freeman 3  an employee found a box whilst working in 
the basement of a building and informed his employer who told him to put it on 
a shelf. Two years later the employee investigated the contents and discovered 
bank notes. The Court held that the person who had de facto possession was the 
employer. See Ranger v. Griffin & ors4   for a different result. There the Court 
found that the employee as finder had no claim to га8,500.00 found while 
excavating soil because he had no right to be on the land except by authority of 
his employer. The employer had no claim because its contract to excavate did 
not extend to the tin in which the money was found. The owners of the land 
were held to be entitled to the money.

2.	Realty and Personalty.

The law classifies "objects" of ownership into real property (or "realty") and 
personal property (or "personalty"). Broadly speaking realty means land and 
those things fixed to it. Personalty means all other kinds of property.

In early times property was mostly visible and tangible, for example, land, 
cattle, goods. Property such as stocks or shares was unknown. Property was 
thought of as immovable (land) and movable (everything else).

Under the feudal system which developed after the Norman Conquest land was 
granted by the king to his followers to "hold" on conditions of rendering 
military service to the king as ultimate owner. This obligation however was not 
applied to movables. Lands were held from the king and passed to the heir of 
the holder and were called "tenements" or "hereditaments".

Movable property was known as "goods" or "chattels". The word "chattels" 
derives from words meaning "capital", "stock" or "wealth" on the one hand and 
"cattle" or "beasts" on the other, cattle being the most important form of wealth 
in early English society.

The terms "real" property and "personal" property arose from the kinds of court 
action which lay to remedy a breach of the rights of the owner of the different 
kinds of property. If a landowner was deprived of his land he could bring an 
action to recover the land itself since the land was indestructible. It was the thing 
(res) which he was entitled to recover and the action was called a real action.

Goods and chattels might not be might not be recoverable since they might have 
been destroyed. Therefore the action which was developed for the aggrieved 
owner was an action against the person who had done the wrong and this action 
was called a personal action.

3.	Real Property.

(a)	Generally.

Consideration of real estate involves looking at land, fixtures and strata.

(b)	Fixtures.

"Land" includes those things which are fixed to the land.

Section 3(a) of the Real Property Act defines "land" to include all paths, 
passages, ways, watercourses, easements, gardens, mines, minerals, trees and 
timber thereon or thereunder unless any of these is specially excepted from the 
particular dealing. Section 67 of the Conveyancing Act (which does not apply to 
Torrens title land) provides that a conveyance includes all buildings, erections, 
fixtures, commons, hedges, ditches, fences, waters, watercourses, easements, 
rights and advantages appertaining to the land. At common law crops and trees 
pass on sale unless excluded from the sale.

There is no need for the contract for sale to itemise fixtures which are to pass 
with the property as they are part of the realty and pass automatically with it. 
Nevertheless it is sometimes difficult to distinguish between a fixture and a 
chattel. In considering whether an item is a chattel or a fixture the court looks at 
the degree of annexation and the object of the annexation. That is, the prime 
consideration is the intention of the party bringing the item onto the land.

Where a chattel has been so securely fixed that it cannot be detached without 
substantial injury to the chattel or the erection to which it is affixed, that 
provides strong evidence that permanent fixing was intended5 . The intention 
with which a chattel has been affixed should be ascertained objectively and all 
the circumstances should be considered.

One of the leading cases in this area is Australian Provincial Assurance Co. Ltd. 
v. Coroneo6 . There the Court was concerned about a number of theatre chairs, 
movie projection equipment and a generator seized from the Strand Theatre. It 
was said that if a chattel is actually fixed to land to any extent, any means other 
than its own weight, then prima facie it is a fixture; and the burden of proof is 
upon the person who asserts that it is not. If it is not otherwise fixed but is kept 
in position by its own weight, then prima facie it is not a fixture; and the burden 
of proof is upon the person who asserts that it is. The test of whether a chattel, 
which has to some extent been fixed to the land, is a fixture was said to be 
whether it had been fixed with the intention that it shall remain in position 
permanently or for an indefinite or substantial period of time, or whether it had 
been fixed with the intent that it shall remain in position only for some 
temporary purpose. In the former situation it is a fixture, whether it had been 
fixed for the better enjoyment of the land or the building, or fixed merely to 
steady the thing itself, for the better use or enjoyment of the thing fixed. If it is 
proven to be fixed for only a temporary purpose it is not a fixture. The intention 
of the person fixing it must be gathered from the purpose for which and the time 
during which use in the fixed position is contemplated.

See Butt Contract for Sale of Land 7  for some examples of chattels and fixtures. 
In domestic sales. Lang8  lists the following commonly occurring inclusions 
which should be listed as inclusions in the contract in order to avoid subsequent 
disputes:-

*	floor coverings (including wall to wall carpets)
*	carpets
*	rugs
*	linoleum
*	wall hangings
*	door mats
*	curtains
*	blinds
*	light fittings
*	television antenna
*	kitchen stove
*	dish washer
*	refrigerator
*	washing machine
*	clothes dryer
*	air conditioning
*	swimming pool equipment
*	movable partitions
*	furniture (whether or not attached to walls or floors)

The vendor is not entitled to remove fixtures which have not been excepted from 
the sale. If he does so there is a breach of the vendor's duty as trustee for the 
purchaser and the purchaser may claim damages for their removal or if damages 
are not an adequate remedy, and they are still in the vendor's possession, their 
return in specie.

"Tenant's fixtures" are in a special category. The common law rule was that 
when a tenant affixed something to leased premises it became part of them and 
could not be severed without the landlord's consent. Prima facie, all fixtures 
attached by the tenant are landlord's fixtures, that is, must be left for the 
landlord. The exceptions to this rule that can be removed by the tenant are 
known as tenant's fixtures. The legal title to the fixture is in the landlord until 
the tenant chooses to exercise his power and sever it. The tenant may only do so 
during the tenancy or within a reasonable time thereafter provided they are 
removed without injury to the premises. Once that time has elapsed, the tenant 
loses his right of removal and the landlord's title to the fixture is absolute. In 
general a tenant is under no obligation to remove anything he has lawfully 
affixed to the land. Tenant's fixtures are fixtures erected for trade, ornament or 
domestic convenience9 . This general principle however is always subject to the 
terms of the lease.

(c)	Strata.

As well as fixtures, land comprises the strata below and above the surface of the 
land. At common law land included the whole substratum to the centre of the 
earth. The landowner does not own the royal minerals (gold and silver) nor any 
other minerals which may have been reserved out of the original grant of land 
from the Crown.

Different views have been expressed as to whether at common law the owner of 
the surface owns all the airspace above it. The opposing view has been that he 
owns only that part which is necessary for the ordinary use and enjoyment of 
the land. This latter view was preferred in the English case Bernstein v. 
Skyviews & General Ltd.10  There Lord Bernstein claimed damages from 
Skyview for trespass in his airspace by taking an aerial photograph of his 
country home. 

The Court considered it absurd that a landowner's ownership of airspace above 
his land to an unlimited height, for example, a trespass would be committed 
every time a satellite passed overhead. It was concluded that the balance between 
the rights of an owner against the public's right to take advantage of all that 
science now offers in the use of airspace was struck by the law's restricting the 
rights of a landowner to such airspace above his land as is necessary for the 
ordinary use and enjoyment of his land the structures upon it. The Court found 
no trespass had been committed.

It remains to be seen whether this view will be taken by higher courts in 
England and by Australian courts.

The fact that "land" includes airspace above the surface is the concept which 
underlies the modern "strata title". Unlike plans of subdivision which are based 
on the division of the surface of land into lots or sections, a strata plan of 
subdivision also divides the airspace above the surface. A strata plan of 
subdivision divides vertically as well as horizontally.

4.	Personal Property.

Personal property is divided into "choses in possession" and "choses in action". 
Choses in possession are tangible forms of personal property, for example, 
cars, a piano, a typewriter. Choses in action refer to "all personal rights of 
property which can only be claimed or enforced by action, and not taking 
physical possession."11 .Examples of choses in action are shares in companies, 
debts, patents, copyrights and trademarks.

A former characteristic of choses in action was that although enforceable at law 
they could not be assigned at law so as to become enforceable by the assignee. 
The equity courts came to the rescue and allowed the assignee to bring 
proceedings in the assignor's name. Legislation now provides for an effectual 
assignment by writing under the hand of the assignor of any debt, or legal chose 
in action, of which express notice in writing has been given to the debtor.

In addition to legal choses in action there were equitable choses in action, that is, 
claims enforceable only in courts of equity as distinct from rights enforceable by 
actions in the common law courts. Examples of equitable choses in action are an 
interest in a trust estate, a right to a legacy or an interest in a partnership. This 
distinction is of little significance now that the courts of equity and the common 
law courts have merged.

5.	Leaseholds.

Leasehold property is in an unusual position. A lease of land confers on the 
lessee a right to use the land for a term. Leasehold is classified as personal 
property. In early times leaseholds had no military service attaching to them. 
The lessee was regarded as the servant or bailiff of the lessor and if ejected from 
possession could not bring a real action to recover the land itself. Today this 
seems an artificial distinction. Sometimes leases are referred to as "chattels real" 
and all other chattels "chattels personal".

1	Joseph Story speech, "The Value and Importance of Legal Studies" 5th 
	Aug. 1829.
2	(1722) 1 Strange 505; 93 E.R. 665.
3	(1958) 12 DLR 727.
4	(1967) 87 W.N. 531.
5	(1939) 55 W.N. 246; 38 S.R. (N.S.W.) 701.
6	Supra.
7	The Standard Contract for Sale of Land in New South Wales by 
	P.J.Butt, Law 
	Book Co., 1985 p. 49.
8	Estate Agency Law & Practice 4th Ed. [1405]
9	Spryer v. Phillipson [1931] 2 Ch 183 held panelling was removable.
10	[1977] 3 WKR 136;(1978) 1 QB 479.
11	Channel, J. in Torkington v. Magee [1902] 2 KB 427 at 430.

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