Property I Revision

Exam Notes:
 Part A: Question 1: in the Exam will be on Topic 3. (Principles and rules concerning
rights to property).

 Part B: Question 2: 6 Questions

o Answer only 4 out of 6 questions
o Each question carries 10 marks
o Question 2 focus on Topic 8: Gifts and Complicating Factors.
o Question 3 focus on Topic 6 (All definitions must be learned).
o Question 4 focus on Topic Joint Tenancy and Tenancy in Common.
o Question 5 focus on Topic 4 (Prioritization of Common Rights/Common law
Exceptions/Statutory Restrictions). There is a case is required to be explained.
o Question 6 focus on Topic 5.
o Question 7 focus on Topic 5.

Topic 3 Notes:
Joint tenancy: property given to one or more tenants where they have equal rights to the
property. Joint tenancy is created with words of severance or separation. e.g., my land to A and
B.
 Hickson Case: Crown grant land to TU Cook “in trust for the children born now and
after. Court held the grant of the land as joint tenancy for the children and the children
dies during the life of Mr. Cook, the surviving children will take the shares of the
deceased children.
Tenancy in Common: allows all tenants to have shares regardless of whether it is equal or not,
and it may be transferred or divided during lifetime or by a will. Tenancy in common is created
with words of severance or separation. e.g., my land to A and B, A as to ¾ share and B ¼ share.
 Malayan Case: Court held that equitable tenancy in common in unequal shares is
proportion to their occupancy of the floor of the building where one company occupy
62% and the other for the remaining.
Current Interest – interests which a person is entitled to exercise and enjoy now such as
ownership, possession, charges, easements, profits, etc.
Future Interest/Interest in Expectancy
 Three Kinds

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 o Interest in Remainder –Interested in land which vested now but cannot be
exercised until A dies. e.g., A for life, then to sons.
o Interest in Reversion – interest is to revert back to the owner. e.g., A for life
and when A dies, interest is to revert back to the owner.
o Executory Interest – vested in the future and will be vested only upon some
happening in the future. e.g., to A when he marries.
Rule Against Perpetuities:
 Interest vest 21 years after the death of a life in being at the time the interest is
created.
 To prevent people from tying up land for a long period of time and making the land
inaccessible to others.
 Prevent dynastic – transfer is restricted by the wish of someone who has been dead
for 100 years.

Two rules against perpetuities:

1. Rule against indefinite duration

o Right remain with the transferee forever. Contrary to public policy and
therefore, void and of no legal effect.
1. Carne v Long – testator devise land to a library unto a trustee and their
successor to hold forever. Court held the transfer was unlawful as it
was contrary to the real intention of the transfer which is for charitable
purpose.

o Exception to the rule:

1. Rule does not apply to charitable organizations.
 Re Hooper Case – testator entrust the tablet in memory of his
son and window in memory of his father to the church. Court
held it as valid charitable gifts to the church and were not void
even if the church kept them for indefinite duration.
2. By law, trust can only last for 21 years from the testator’s death
3. Does not apply to gifts to an incorporated/unincorporated organization
 Cocks v Manners – testatrix gave part of her residence to
Dominican Convent. Even though this is not a charitable gift,
the court hold the gift valid because the gift will be divided
among the members of convent.

2. Rule against remoteness vesting

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 o Interest is vested within the period of life plus 21 years and period of gestation
if applicable and if no lives in being, within 21 years only.
1. Jee v Audley – limitations of personal property are void unless it is
within the life or lives in being and 21 years or 9 to 10 months after.

o Elements of the rule

1. Interest in property effected

2. Vesting period calculated from date of creation of interest
3. Validity of provision for vesting is to be determined as the time of
creation.
4. Vesting period – life plus 2 years plus period of gestation.
5. Vest within vesting period

o Effects of breach of rule under common law and equity:

1. Provision that infringes rule is absolutely void
2. If provision relate to class and is void for some member of class, void
for all members of class
3. Any provision following and dependent upon void provision is also
void.
Gift to generic person (sons, daughters, nephews, ect) whose parents are still alive
 Too remote and void

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Topic 4 Notes:

1. The constitution is the supreme law therefore, any interest in property it recognizes
supersedes all other laws.

a. Establish rights to ownership of property

i. e.g., s30(1) of Fiji Constitution provides “all minerals in or underlying
land or water are owned by the state.”
b. Provide rights of property to private citizens when drastic changes are made and
the constitution need to confirm it.
i. e.g., s110 of Solomon Islands provides “right to perpetual interest of land
shall be vest a Solomon Islander and only in other person as may be
prescribed by parliament.”

2. Legislation – subordinate to constitution and superior to all other laws.

a. Frequently used to create legal rights to property both real and personal property.
(See s423 Cook Island, s18 Sale of Goods of Samoa, s239 Land and Titles Act of
Solomon Islands).
b. May be more than one legislation relating to same interest in property.

i. Posteriors leges priores contrarias - later legislations overrides earlier

legislation or conflicting legislations.
 Exception: generalia specialibus non derogant – general
legislation does not derogate/diminished/lessen the effect of earlier
legislation.

3. Subsidiary legislation – authorized by legislation and rights to property is superior to

other laws except rights established by the constitution and legislation.
a. Rights to property are too important to be created by subsidiary legislation since
they are made by the Minister and can be unmade by subsequent minister.

4. Ways to acquire rights to property under common law:

a. Discovery of unowned property: person discovers unowned real or personal

property, person have right to ownership.

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 b. Manufacture of new product: person creates a new product; person have rights
to ownership.
c. Attachment: person owns a property where a smaller property is attached, person
have right to ownership.
d. Transfer: person can claim rights to ownership of gift if delivery is made and
there was intention. Word of mouth, deed, written instrument approved by
legislation in terms of sale.

5. Four circumstances to equitable right to property:

a. Express trust – owner hold property in trust to a beneficiary. Owner is still the
owner but the beneficiary has equitable interest in the property.

b. Implied Trust – presumption that if a person contributed financially to the

purchase of a property, that person has equitable interest in the property
equivalent to the amount he paid.

c. Contract – owner devise a contract with consideration to transfer property but

failed to transfer property. Transferee has equitable right to the property.

d. Equitable Estoppel – representor promise to transfer property to representee and

the representee acted upon a detriment to that promise but the representor fails to
transfer property. Transferee have equitable rights to the property.

6. General Rule: common law and equity rights takes priority according to the date the
right was created. Latin word: prior in tempore, potior in jure – earlier in time, stronger
in law.
i. Northern Counties Fire Insurance Case: manager mortgage his land to
secure a loan from a company and lock loan documents in a safe. Crabtree
remove the deed to his land from the safe and pass it to Mrs. Whipps to
hold it as a security loan from her. A year later, Crabtree became bankrupt
and court of appeal held that earlier mortgage has priority over later
mortgage by Mrs. Whipps.

ii. Shraphire Union Railway Co. v The Queen: Court hold that earlier
interest of directors prevailed over later equitable interest of Robson and
his widow.

iii. Exceptions to the general rule:

 Fraud and gross negligence:

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 a. Walker v Linom case: Walk instructed his solicitors to
transfer the house to his trustees. He handed them the
document and without the solicitors’ knowledge he
removed the title deed which he later handed it over as a
security to his loan. A legal action was brought by the
spouse of Walker and the court held that the solicitors were
very negligent of checking the documents, therefore their
prior legal right should be postponed to later equitable
interest.

 Equitable rights do not normally prevail against later rights of

a bona fide purchaser:

a. Pilcher case: trustee loan money to a Rawlings as security

to a mortgage land of Rawlings. Rawlings concealed the
transfer to the trustee from Stockwell and Lamb. Court held
that the interest acquire by Stockwell and Lamb are not
subject to earlier equitable interest because they were bone
fide or honest purchasers.

 Earlier rights prevail over later rights only as a gift or notice of

equitable right.

Legal right acquired with notice of earlier right:

a. Trinidad Asphalt Case: woman buys a land from a man

named Nicola and move to occupy it. Nicola never made
the transfer before he died. Later Dulcinore transfer the
land to MacCarty who later sold it to Asphalt Company.
Later the heir of Nicola transfers the land to Coryat with
Coryat being aware of the previous transfer of the land.
Privy Council held that Dulcinore had equitable interest in
the land and Coryat was aware of that when he obtained the
legal interest of the land, therefore Coryat right was subject
to the equitable interest of the Asphalt Company and the
land was order to be transferred to the Asphalt Company.
Legal right acquired as a gift:
b. Faskett Case: McKeown made a trust to hold money paid
by people that participate in a scheme to build homes in
Portugal. However, he uses the money to buy his own life
insurance which he also assigns to his children before he
killed himself. The contributors have equitable interest so

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 they had to share the proceeds paid for the insurance and
these took priority legal interest to the legal interest the
children later acquired as gift from their father.

 Statutory Provisions

a. Legislation may abolish common law rules and provides

that all instrument to transfer property must be registered. If
not registered, no legal effect and if registered, will have
effect from the date of registration.

b. Beckham Case: Boyce v Beckman (1890) 11LR (NSW)

139 An owner of land transferred some of it to Boyce by a
deed executed on 13 October 1845, but this deed was not
registered until sometime after 5 January 1852. On 1
January 1852 the owner signed a deed transferring some of
the same land to Turner, and this deed was registered on 5
January 1852. The Court held that priority must be given to
the deed that was signed on 1 January 1852 and registered
on the 5th January, 1852, because, although it was executed
later in time, it was registered before the deed that was
executed in 1845.

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Topic 5 Notes:
Two ways of acquiring Property Interest:
 Derivative Acquisition
 Non-Derivative Acquisition (Original Acquisition)
o May acquire property interest thru:
 Creation by Intellectual Property Rights
 Lawful/unlawful taking
 Conquest
 By application of equity (adverse possession/trust).

Derivative Acquisition of Property Rights:

 By transfer with or without consideration.

o With consideration: the owner sells the property to the purchaser.

o Without Consideration: the doner gift/present/ or donate property to the donee.
(natural love and affection).

 By compulsory acquisition (State Acquisition Act cap 135 of Fiji)

 Acquire without action of transferer or transferee but by operation of law. (Land and
Transfer Act Cap 131 Fiji).
Non-Derivative Acquisition of Rights to Goods:
1. Occupation of un-owned things: person finds unowned things, person have right to
ownership. However, as a general rule live wild animals are not capable of being own.
But if the owner of land catches the wild animals, they are regarded as owned by land
owner.
 Exceptions to wild animals and minerals
i. Whale, sturgeon, white swam belong to Crown. Treasure troves such as
gold, silver, etc. owned by the crown.

2. Given-up goods: finder of given-up goods can acquire rights to ownership because it is
a thing of nobody. However, some commentators argue that objects thrown away is still
own by its owner until it ceases to exist.

 Two cases where given-up goods where rights of ownership can be acquired by
the finder.

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 i. Moffat v Kazana Case: tin of money was left by a man in his former
home and he was able to recover it because the judge stated that he is tsill
the true owner of the money.

ii. Re Jigrose Pty Ltd Case: farmer sold his land and buyer enters and finds
bales of hay. Seller claim that the bales was still his but buyer resisted
because they were abandoned by the seller. The court held that buyer
have ownership to the bale of hales because they were abandoned and the
finder may acquire rights to ownership when the find them.

3. Lost Goods – rights to ownership remains with the owner: lost articles/items have
never been regarded as loss of ownership under common law. If a person can remember
where they left the article/item, they may still claim ownership regardless of how long it
was lost and who took it.

i. Moffat v Kazana Case: owner sold house. Three years later purchaser
found a tin full of coins. Court held that the money belongs to the former
owner who remains the owner and was entitled to claim it.

ii. Exceptions to lost goods: things thrown away by thieves, animals

wandering without owner, treasure troves, wreck are regarded as the
ownership of the Crown under its prerogative powers.

4. Lost Goods – right to possession: Although lost articles were still own by the owner, it
is subject to supervening rights by the crown. This means a person other than the owner
can acquire rights to ownership in the following instances.

i. If the article is not attached to or in the ground:

1. Armory Case: boy found jewel in chimney and took it to the

goldsmith to get its value. Goldsmith refuse to hand over the jewel
to the boy and boy sue the goldsmith. Court held that the boy was
entitled to the possession of the jewel until the true owner claim it.

ii. Possessor of ground, if the thing is found attached to, or embedded

in, the ground:

1. E v Briggs Case: lessee found a pre-historic boat in the areas

leased during their excavation for the gas station. Owner of lease
demanded that the boat handed to him but the court held that
lessee was entitled to the possession of the boat.

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 5. Creation of new article or goods: person who creates new article using his own
material and supplies that was not existed before, person have rights to ownership.

 General rule: manufacturer of a new product is entitled to ownership of the

product.

6. Lengthy unlawful possession:

 Adverse possession: is when person is allowed to acquire possession of land by

continuous possession for certain period. It’s also referred to as lengthy unlawful
possession and person can acquire indefinite right to possession of the property
where no one is able to challenge it.

 General Rule of Adverse Possession: if a person had peaceful, undisturbed,

open possession of personal property, with an assertion of ownership, for the
term which, under the law would bar action for its recovery by the true owner,
whose neglect to assert legal rights resulted to that of the true owner, whose
neglect to assert legal rights resulted in loss of title.

7. Lawful/Unlawful taking of things:

 A person is not guilty if he can establish on a “balance of probabilities” that he is

not aware that a thing is stole or unlawfully obtained.

8. Conquest:

 Possession of land by force of arms.

 Banned after WWII

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Topic 6 Notes:
Derivative Acquisition of Legal Rights to Goods: Accession and Intermixture
Accession:
 Accessing Rights to interest in Permanent Attachment to another item/property:

o Three Ways:

1. Accessing physical attachment of article to another article; if removal is

impossible, vest legal right of ownership in owner of principle article,
subject to payment. Principle article is determined by size not value.

 McKeown v Cavalier Yachts: a man added fittings to the hull of

yacht and laminated moldings worth $24, 000. Dispute broke out
and the man claim he own the laminated hull. Court held that the
yacht was the principal chattel so the hull could not be removed
without irreparable damage. The owner has right to ownership and
must pay compensation for it.

2. Accessing physical attachment of article to land – fixtures – normally

owned by owner of land on condition that payment of compensation is
necessary to the person who attached the fixture to, for labor and
materials:

 Holland v Hodgson Case: weaving looms bolted to floor of factory

building held to belong to the owner of building.

 Harman v Towson Case: wooden house bolted to concrete

foundations held to belong to the owner of the land, not to son who
build it and to whom mother had devised.

 Physical attachment of land to land – reclamation of land –

vest ownership of reclaimed land in the original owner of land
upon which reclamation is made.

 In Contrast ornament fixtures such as curtains, blinds, beds,

etc. not owned by the owner of house.

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 3. Accessing to natural items (animals/plants) attached to land. Addition to
property that occur naturally – for example – you own a female dog and it
give birth to puppies. You own the puppies.

 Railway (1839): Sand and soil swept up by natural forces are

owned by the owner of the land.

Intermixture:
1. Intermixture by consent – owner of goods that are intermixed will own accordingly
to shares that are agreed or proportionate to contribution of mixed goods:

 Coleman v Harvey: molten silver articles by company and by man owned in

production to respective contributions of silver.

2. Intermixture by accident – owner of goods intermixed by accident will own shares that
ate proportionate to respective contribution of mixed goods.

 Gill v Duffus: mixed chestnuts in ships hold from broken bag in storm is held by
three owners of bags of chestnuts in proportionate to number of bags they lost.

 Not possible if it is not possible to ascertain the contribution made by one or more
claimants because of carelessness or fraud by one of them, any shortfall should be
borne by careless or fraudulent wrongdoer.

i. Lupton v White: mixture of lead from two mines by different persons. One
owner did not have records of his contribution so court allowed other
owner to take first who had records of his contribution.

3. Intermixture by wrongdoing of one or more of the owners of the mixed articles. Innocent
owners should take share of mixture proportionate to their contribution., and any shortfall
should be borne by wrongdoers:

 Indian Oil Corp. v Greenstone Shipping: mixture of oils due to carelessness of

one of owners. Innocent owners held to be able to acquire amount of oil
proportionate to their contribution, and if any shortfall to be borne by owner
responsible for intermixture

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