LAWS12065 # FOUNDATIONS OF PROPERTY LAW
LAWS12065 # FOUNDATIONS OF PROPERTY LAW
STUDY GUIDE | WEEK 2
Introduction to Property and the LawVersion 1.01 2023
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CONTENTS
TOC h u z Title of Module PAGEREF _zgsnxq752xfc h 2
1 Preview PAGEREF _bsbdrfm3aqjj h 2
1.1 Introduction PAGEREF _v2xbhytplz2 h 2
1.2 Objectives PAGEREF _iel1byvvwj63 h 2
1.3 Prescribed Reading PAGEREF _tsuo9t68qhmf h 2
2 Tutorial Problems PAGEREF _1yrdq1n9mvcc h 2
Title of Module
1 Preview
1.1 Introduction
This week you will be introduced to the concept of property and property law. You will be introduced to the history of the development of property law, including the doctrine of tenure. You will then learn about the commodification of property and be introduced to the development of the doctrine of estates, including freehold and leasehold, as well as the Torrens system and indefeasibility. Classifications of property will also be covered.
1.2 Objectives
By the end of this week, you will be able to:
Identify the nature of property and property rights;Explain classifications of property;
Explain the key difference between real property and personal property;
Explain the doctrine of tenure
Explain the doctrine of estates, including freehold and leasehold
Explain indefeasibility under the Torrens system1.3 Prescribed Reading
Brendan Edgeworth, Chris Rossiter, Pamela OConnor, Andrew Godwin and Leon Terrill, Sackville & Neave Australian Property Law (11th ed, 2021, LexisNexis), pp 1-55
Laura-Leigh Cameron-Dow and Francina Cantatore, LexisNexis Questions and Answers: Property Law (4th ed, 2020, Lexis Nexis), ch 1
2 Tutorial Problems
1. On a sheet of paper or Word document brainstorm words that come to mind when you read or think about the word 'property'. Share some examples for others to see either using your microphone or in the chat.
2. How would you explain the concept of property?
3. What are key differences between real property and personal property?
4. Give 2 examples of choses in possession and 2 examples of choses in action
5. What is the concept of indefeasibility? You must refer to authority.
6. Identify one exception to indefeasibility. You must refer to authority.
7. What is the difference between freehold and leasehold?
LAWS12065 # FOUNDATIONS OF PROPERTY LAW
STUDY GUIDE | WEEK 3
Land, Part I: PossessionVersion 1.01 2023
-16478243228975-285748077200
CONTENTS
TOC h u z Title of Module PAGEREF _zgsnxq752xfc h 2
1 Preview PAGEREF _bsbdrfm3aqjj h 2
1.1 Introduction PAGEREF _v2xbhytplz2 h 2
1.2 Objectives PAGEREF _iel1byvvwj63 h 2
1.3 Prescribed Reading PAGEREF _tsuo9t68qhmf h 2
2 Tutorial Problems PAGEREF _1yrdq1n9mvcc h 2
Title of Module
1 Preview
1.1 Introduction
This week you will learn about possession, in particular adverse possession as an exception to indefeasibility of title. You will learn about the limitations of actions legislation, limitation periods, accrual, the elements of adverse possession, and its effects on title.
1.2 Objectives
By the end of this week, you will be able to:
Explain how adverse possession is an exception to indefeasibility;
Explain the elements of adverse possession;
Explain the limitation period in Queensland;
Identify and explain key adverse possession cases;
Identify and use key legislation, including the Limitation of Actions Act 1974 (Qld).
1.3 Prescribed Reading
Brendan Edgeworth, Chris Rossiter, Pamela OConnor, Andrew Godwin and Leon Terrill, Sackville & Neave Australian Property Law (11th ed, 2021, LexisNexis), 99-134
Laura-Leigh Cameron-Dow and Francina Cantatore, LexisNexis Questions and Answers: Property Law (4th ed, 2020, Lexis Nexis), ch 11
2 Tutorial Problems
1. What is adverse possession and how does it operate as an exception to indefeasibility?
2. What does a claimant need to prove in a court in order to establish adverse possession in Queensland?
3. Why were the respondent in Whittlesea City Council v Abbatangelo (2009) [2009] VSCA 188 successful in establishing adverse action? What factual evidence weighed in favour of the respondents case?
4. In some cases the squatter may not actually occupy the land for the full period required to extinguish the interest of the previous owner. Three situations may occur:
(i) A has a fee simple estate in Blackacre. B dispossesses A and after 10 years purports to assign his or her interest to C. Can C rely on Bs period of adverse possession? What is Cs position before the expiration of the limitation period?
(ii) B dispossesses A from Blackacre, but after 10 years adverse possession B abandons possession of the land. Does time continue to run against A?
(iii) B dispossesses A of Blackacre, but after 10 years adverse possession is ousted by another adverse possessor, C. Can the periods of adverse possession of B and C be added together in order to extinguish the title of A? Who has the best title to the land after As title is extinguished?
LAWS12065 # FOUNDATIONS OF PROPERTY LAW
STUDY GUIDE | WEEK 4
Alienability Version 1.01 2023
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CONTENTS
TOC h u z Title of Module PAGEREF _zgsnxq752xfc h 2
1 Preview PAGEREF _bsbdrfm3aqjj h 2
1.1 Introduction PAGEREF _v2xbhytplz2 h 2
1.2 Objectives PAGEREF _iel1byvvwj63 h 2
1.3 Prescribed Reading PAGEREF _tsuo9t68qhmf h 2
2 Tutorial Problems PAGEREF _1yrdq1n9mvcc h 2
Title of Module
1 Preview
1.1 Introduction
This week you will learn about alienability of land, including the law on direct restraints on alienation, the rule against perpetuities, wait and see rule, and reduction in age contingencies.
1.2 Objectives
By the end of this week, you will be able to:
explain the concept of alienation in real property law;
explain circumstances in which direct restraints on alienation may be permissible;
explain and apply the rule against perpetuities, wait and see rule and other legal rules.
1.3 Prescribed Reading
Brendan Edgeworth, Chris Rossiter, Pamela OConnor, Andrew Godwin and Leon Terrill, Sackville & Neave Australian Property Law (11th ed, 2021, LexisNexis), 561-608
2 Tutorial Problems
1. Is the result in Gora a just one? Does it give too much priority to the principle of freedom of contract over the principle of freedom of alienation?
2. Suppose you are working for a commercial law firm. Your client is a retirement village which wants to sell retirement homes. They seek your advice as to whether they can include a buyback option into their contracts of sale, and whether such an option would be enforceable if they seek to exercise it. Would your answer be different if you are advising a builder of luxury apartments in Brisbane?
3. What is the rule against perpetuities in Queensland and how does it operate?
LAWS12065 # FOUNDATIONS OF PROPERTY LAW
STUDY GUIDE | WEEK 7
Personal PropertyVersion 1.01 2023
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CONTENTS
TOC h u z Title of Module PAGEREF _zgsnxq752xfc h 2
1 Preview PAGEREF _bsbdrfm3aqjj h 2
1.1 Introduction PAGEREF _v2xbhytplz2 h 2
1.2 Objectives PAGEREF _iel1byvvwj63 h 2
1.3 Prescribed Reading PAGEREF _tsuo9t68qhmf h 2
2 Tutorial Problems PAGEREF _1yrdq1n9mvcc h 2
Title of Module
1 Preview
1.1 Introduction
This week we will cover personal property, in particular the Personal Property Securities Act 2009 (Cth) ("PPSA"). Topics include categories of personal property, the function and purpose of the PPSA, security interests in personal property, the concept of personal property, security interests, attachment, perfection, priority and enforcement under the PPSA.
1.2 Objectives
By the end of this week, you will be able to:
Explain the function and purpose of the PPSA;
Explain categories of personal property;
Explain the concept of personal property, security interests, attachment and perfection under the PPSA;
Explain priorities and enforcement under the PPSA.
1.3 Prescribed Reading
Brendan Edgeworth, Chris Rossiter, Pamela OConnor, Andrew Godwin and Leon Terrill, Sackville & Neave Australian Property Law (11th ed, 2021, LexisNexis), 79-98, 919-923
Laura-Leigh Cameron-Dow and Francina Cantatore, LexisNexis Questions and Answers: Property Law (4th ed, 2020, Lexis Nexis), ch 8
2 Tutorial Problems
Explain the concept of personal property and its categories
What is the function and purpose of the Personal Property Securities Act 2009 (Cth)?
Sam wants to loan his daughter Rachel $60,000 to buy a used car. Sam enters into a contract with Rachel that stipulates the car is to be used as security for the loan. That is, under the contract a fixed charge is placed on the car. Sam believes that this security agreement provides him with protection in case Rachel defaults on the loan, after which he can take possession of the car and sell it.
(i) Advise Sam whether his belief is accurate and on the steps that need to be taken to ensure that his security interest has priority over others.
(ii) What should Sam do before he loans Rachel the funds?
(iii) What would you advise Sam to do if a search of the Personal Property Security Register reveals that the car already has a perfected security interest?
(iv) Advise Sam of the default rules in the PPSA concerning enforcement, including the rights and duties of security holders.
LAWS12065 # FOUNDATIONS OF PROPERTY LAW
STUDY GUIDE | WEEK 8
Native Title, Part I: History, Colonisation and the Development of Land Rights and Native TitleVersion 1.01 2023
-16478243228975-285748077200
CONTENTS
TOC h u z Title of Module PAGEREF _zgsnxq752xfc h 2
1 Preview PAGEREF _bsbdrfm3aqjj h 2
1.1 Introduction PAGEREF _v2xbhytplz2 h 2
1.2 Objectives PAGEREF _iel1byvvwj63 h 2
1.3 Prescribed Reading PAGEREF _tsuo9t68qhmf h 2
2 Tutorial Problems PAGEREF _1yrdq1n9mvcc h 2
Title of Module
1 Preview
1.1 Introduction
This week, we will cover an introduction to indigenous land rights and native title. Topics will include the history of First Nations peoples in Australia, colonisation and its impact on dispossession of land, sovereignty, the concept of "indigenous" and "First Nations" people in native title law, the development of indigenous land rights, and the common law recognition of native title. The content in this week provides you with the knowledge of history, legal concepts and key cases needed to understand the current Native Title Act 1993 (Cth), which we will cover next week.
1.2 Objectives
By the end of this week, you will be able to:
Explain whether First Nations peoples in Australia can litigate to claim sovereignty over lands in Australia, and compare this with the experiences of indigenous peoples in the United States;
Explain what an "indigenous" or "First Nations" person means in Australian native title law;
Explain the development of indigenous land rights in Australia;
Explain the common law recognition of native title in Australia;
Explain the difference between land rights and native title.
1.3 Prescribed Reading
Brendan Edgeworth, Chris Rossiter, Pamela OConnor, Andrew Godwin and Leon Terrill, Sackville & Neave Australian Property Law (11th ed, 2021, LexisNexis), 162-170
Mabo and Others v Queensland (No. 2) (1992) 175 CLR 1
2 Tutorial Problems
1. Are land rights and native title the same thing? Give an example of a land right and native title in Australian law.
2. The Queensland government proposes to enact a statute which seeks to extinguish all native title rights without compensation, and affirm the Crown sovereignty. Using your knowledge of Australian case law and legislation, explain whether this legislation would be valid under the Australian constitution.
3. Suppose you have been asked to give a talk on the concept of native title. In groups of 4, take 20 minutes to prepare a presentation which uses the majoritys decision in Mabo v Queensland (No 2) [1992] HCA 23 to explain how native title can survive colonisation.
LAWS12065 # FOUNDATIONS OF PROPERTY LAW
STUDY GUIDE | WEEK 9
Native Title, Part II: Establishing Native Title, Extinguishment and Determinations of Native TitleVersion 1.01 2023
-16478243228975-285748077200
CONTENTS
TOC h u z Title of Module PAGEREF _zgsnxq752xfc h 2
1 Preview PAGEREF _bsbdrfm3aqjj h 2
1.1 Introduction PAGEREF _v2xbhytplz2 h 2
1.2 Objectives PAGEREF _iel1byvvwj63 h 2
1.3 Prescribed Reading PAGEREF _tsuo9t68qhmf h 2
2 Tutorial Problems PAGEREF _1yrdq1n9mvcc h 2
Title of Module
1 Preview
1.1 Introduction
This week we will continue to cover native title, but shift focus on the Native Title Act 1993 (Cth) ("NTA"). Topics include establishing native title under the NTA (including the legal tests that need to be satisfied to establish native title or native title rights under the legislation), the content of native title rights, extinguishment of native title, and, applications for determinations of native title.
1.2 Objectives
By the end of this week, you will be able to:
Explain the purpose of the Native Title Act 1993 (Cth) ("NTA") and why it was enacted;
Explain the legal tests that must be satisfied to establish native title under the NTA;
Explain how native title can be extinguished under the common law and under the NTA;
Identify examples of acts which may extinguish native title;
Explain the process of applying for determinations of native title under the NTA.
1.3 Prescribed Reading
Brendan Edgeworth, Chris Rossiter, Pamela OConnor, Andrew Godwin and Leon Terrill, Sackville & Neave Australian Property Law (11th ed, 2021, LexisNexis), 170-201
Laura-Leigh Cameron-Dow and Francina Cantatore, LexisNexis Questions and Answers: Property Law (4th ed, 2020, Lexis Nexis), ch 5
2 Tutorial Problems
1. Suppose that you have an interview with a group of people who want to assess their prospects of claiming native title to a particular area. In groups of 2, take 10 minutes to prepare notes for the interview which set out what needs to be proven to establish native title. After the 10 minutes you will return to class and a student can volunteer to assume the fictitious role of advising the group on what they need to prove to establish native title.
2. A local council in Queensland commenced development of a golf course in 1992, completing it in 1998. The golf course has sand bunkers, fairways, hills, and large amounts of scrubland were cleared and then replaced with grass. The golf course includes an underground car park which protrudes beneath the ground by approximately two levels. The car park has 200 car spaces. The golf course also makes use of sprinklers which have drilled down to the bore water.
The class will be broken up into groups of 2. Groups will be allocated to act for either the local council or a native title claim group. Take 20 minutes in your groups to discuss whether any native title will likely be extinguished by the development of the golf course. After the 20 minutes, we will have a moot (pretend court case) and one group acting for the council and another acting for the native title claim group can volunteer.
LAWS12065 # FOUNDATIONS OF PROPERTY LAW
STUDY GUIDE | WEEK 10
Intellectual Property: Copyright, Trade-marks and PatentsVersion 1.01 2023
-16478243228975-285748077200
CONTENTS
TOC h u z Title of Module PAGEREF _zgsnxq752xfc h 2
1 Preview PAGEREF _bsbdrfm3aqjj h 2
1.1 Introduction PAGEREF _v2xbhytplz2 h 2
1.2 Objectives PAGEREF _iel1byvvwj63 h 2
1.3 Prescribed Reading PAGEREF _tsuo9t68qhmf h 2
1.4 Reference Reading PAGEREF _qge8rtdhrnt3 h 2
1.5 Key Terms PAGEREF _4l6mui7zcksb h 2
2 New Heading PAGEREF _idsuhjvz2o1l h 2
2.1 New Sub-heading PAGEREF _f74gnyo5yxjp h 2
2.1.1 Further Sub-heading PAGEREF _aricooc7drop h 3
3 New Heading PAGEREF _fq6rfpvws10m h 3
4 New Heading PAGEREF _6rwf0m3z77c8 h 3
5 New Heading PAGEREF _mloc1vdbeozd h 3
6 New Heading PAGEREF _jczn3niyh5hh h 4
7 New Heading PAGEREF _43nw1ub5n5bg h 4
8 New Heading PAGEREF _bt2q28jm4i1s h 4
9 Review PAGEREF _jp0t90fjxazx h 4
9.1 Concluding Summary PAGEREF _ly69jth7tfiz h 4
9.2 Review Questions PAGEREF _o2zgnu1m955o h 4
9.3 Tutorial Problems PAGEREF _1yrdq1n9mvcc h 4
11.4 Debrief PAGEREF _binf5smvttqv h 5
11.5 Answers to Review questions PAGEREF _2s4jpcia16yn h 5
Title of Module
1 Preview
1.1 Introduction
This week we will cover intellectual property, including patents, trade-marks and copyright. Certain issues will be explored such as those relating to digital games, piracy and uses of indigenous names (such as bush medicines and plants).
1.2 Objectives
By the end of this week, you will be able to:
Explain the concept of intellectual property;
Explain the concept of copyright;
Explain the concept of patents;
Explain the concept of trade-marks;
Explain the difference between copyright, patents and trade-marks;
Reflect on intellectual property issues relating to digital games, piracy and the use of indigenous names (such as bush medicine and plants).
1.3 Prescribed Reading
Halsbury's Laws of Australia, [240-1500] - [240-3310], [240-4998] - [240-5035], [240-8000] - [240-8080]
Isabella Alexander, The Aboriginal flag is now freely available for public use. What does this mean from a legal standpoint? (The Conversation, 28 January 2022) < https://theconversation.com/the-aboriginal-flag-is-now-freely-available-for-public-use-what-does-this-mean-from-a-legal-standpoint-175626>
Nicola St John and Emrhan Sultan, Labelling fake art isnt enough. Australia needs to recognise and protect First Nations cultural and intellectual property (The Conversation, 26 July 2022) <https://theconversation.com/labelling-fake-art-isnt-enough-australia-needs-to-recognise-and-protect-first-nations-cultural-and-intellectual-property-187426>
Jemima Burt, Non-Indigenous business fails in bid to trademark Aboriginal bush medicine (ABC News, 24 January 2020) <https://www.abc.net.au/news/2020-01-24/gumby-gumby-trademark-fails/11890218>
2 Tutorial Problems
1. Jane is the creator of an online game that is steadily gaining in popularity. She wants to protect the name of her game, so that it is not used by other game creators. Explain how Jane might be able to obtain exclusive rights to the use of her online game name. What needs to be registered and what is required for registration?
2. When will software likely be a patentable invention?
3. Read the following: Jemima Burt, Non-Indigenous business fails in bid to trademark Aboriginal bush medicine (ABC News, 24 January 2020) <https://www.abc.net.au/news/2020-01-24/gumby-gumby-trademark-fails/11890218>. In your opinion, can and should indigenous names be able to be trademarked by non-indigenous businesses? Why or why not?
LAWS12065 # FOUNDATIONS OF PROPERTY LAW
STUDY GUIDE | WEEK 11
Technology and Property Law: Current IssuesVersion 1.01 2023
-16478243228975-285748077200
CONTENTS
TOC h u z Title of Module PAGEREF _zgsnxq752xfc h 2
1 Preview PAGEREF _bsbdrfm3aqjj h 2
1.1 Introduction PAGEREF _v2xbhytplz2 h 2
1.2 Objectives PAGEREF _iel1byvvwj63 h 2
1.3 Prescribed Reading PAGEREF _tsuo9t68qhmf h 2
1.4 Reference Reading PAGEREF _qge8rtdhrnt3 h 2
1.5 Key Terms PAGEREF _4l6mui7zcksb h 2
2 New Heading PAGEREF _idsuhjvz2o1l h 2
2.1 New Sub-heading PAGEREF _f74gnyo5yxjp h 2
2.1.1 Further Sub-heading PAGEREF _aricooc7drop h 3
3 New Heading PAGEREF _fq6rfpvws10m h 3
4 New Heading PAGEREF _6rwf0m3z77c8 h 3
5 New Heading PAGEREF _mloc1vdbeozd h 3
6 New Heading PAGEREF _jczn3niyh5hh h 4
7 New Heading PAGEREF _43nw1ub5n5bg h 4
8 New Heading PAGEREF _bt2q28jm4i1s h 4
9 Review PAGEREF _jp0t90fjxazx h 4
9.1 Concluding Summary PAGEREF _ly69jth7tfiz h 4
9.2 Review Questions PAGEREF _o2zgnu1m955o h 4
9.3 Tutorial Problems PAGEREF _1yrdq1n9mvcc h 4
11.4 Debrief PAGEREF _binf5smvttqv h 5
11.5 Answers to Review questions PAGEREF _2s4jpcia16yn h 5
Title of Module
1 Preview
1.1 Introduction
This week we will look at current issues relating to technology and property law. We will focus in particular on the issue of e-conveyancing, authentication and security.
1.2 Objectives
By the end of this week, you will be able to:
Explain how, and why, PEXA is used;
Reflect on the impacts of technology on property law and practice.
1.3 Prescribed Reading
Brendan Edgeworth, Chris Rossiter, Pamela OConnor, Andrew Godwin and Leon Terrill, Sackville & Neave Australian Property Law (11th ed, 2021, LexisNexis), 364-365
Halsburys Laws of Australia, [355-8036]
2 Tutorial Problems
This week the workshop will involve a live presentation from PEXA. Please attend the workshop ready to engage with the presenter and ask questions. After the presentation the class will discuss what they learned about PEXA and e-conveyancing.
