The Legal definition of a property in Australia
What is a property?
The concept of ‘Property’ has a range of different legal references. It can be defined in a conceptual manner and according to its characters as well. Conceptually, property is defined as a thing, a relationship or a bundle of rights within Australia. On the other hand, property is categorized under real property, personal property and other forms of intangible properties considering its features and content.
Concepts of ‘property’
Property as a law of thing
Property Law Act [1]defined that,’ property includes anything in action, and any interest in real or personal property’.[2] It means that, property could be a thing which holds real or personal interest or rights. Badenhorst explained it as, ‘The legal object of a property right can be a land, an estate in land, goods or even another rights’.[3] It is solely vested by the right holder and enforced to enjoy, possess or alienate the property as a thing.[4] In Wily v St gorge Partnership Banking Ltd (1999) [5] Finkelstein J referred a property which is comprised legal relations, not a thing.[6] In this view property may define as a thing and or the rights owned by a person individually or commonly.
Property is a relationship
Australian High Court defined property as a relationship between an object and a person rather than a mere object as stated in Yanner v Eaton(1999).[7] The Court considered the nature and enforceability of native title interest in Yanner.[8] As discussed in this case, Fauna conservation Act 1954 (QLD) refers to the property as a legal relationship with a thing.[9] The Court refers to the degree of power that the property relationship confers rather than a physical object as a property. [10]
In literature, the concept of a ‘property’ has been identified as a relationship between an individual and a particular object. Hepburn said,’ The property relationship confers upon the holder rights to use and enjoy the object, These rights are exclusive and enforceable against the rest of world; This gives the holder a legally enforced concentration of power and control over the object’.[11] Cohen stated that, ‘Private property is a relationship among human being such that the so-called owner can exclude others from certain activities and permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision’[12] In this view, Property has defined as a relationship rather than a nature of an object.
A bundle of rights
The property right is not limited to a single right and it consists of a bundle of rights including the right to use or enjoy the property, right to possess and right to alienate.[13] In Australia, the property is denoted as a bundle of rights under relevant legislations. For example, when considering land as a property it consists of a bundle of legal rights including enjoy, transfer, dispose of etc.[14] Further, the Native title Act 1993 (Cth) defined property as a bundle of rights.[15] Section 223 of the Act defined that ‘native title ‘ is a bundle of rights including land and water, rights to live on land, conserve natural resources for their benefit, maintain, use and manage the land by protecting significant sites, conduct social, religious, cultural and spiritual activities.[16] Mabo v Queensland (No 2)[17] and Fejo v Northern Territory[18] provided examples of exercising property right (native title) as a bundle of rights rather than a single right or interest.[19] In relation to the ‘native title’, Court found more than one right or interest that exist under relevant law and custom.[20] In this view property is defined as a bundle of rights in Australia.
The forms of property
Real property and personal property
Property is defined under real property and personal property and both are re-categorized as tangible and intangible properties, concerning its characters.[21] Real property is described as an interest in land and fixture or structures on the land including a bundle of rights upon the land[22] ; for an example, land, building or lease-hold right may define as real property. Personal property means things or rights which belongs to a person (real or legal).[23] It can be tangible or intangible. For example, chattel or goods, share rights, copyrights etc. Common law defined real property as a property that is protected and recovered by a real action whilst a personal property is only recovered by a personal action.[24]
Intellectual property
A new form of intangible personal property has been recognized from the 18th century under intellectual property.[25] Intellectual property is an umbrella term that covers a number of different rights including copyrights, patents, trademarks, industrial designs, production secrets, author rights etc. In Australia, a new form of property can be recognized by the legislation or Courts.[26] Many legislations including Personal Property Securities Act 2009 (Cth)(PPSA), Patent Act 1990 (Cth), Copyright Act 1968 (Cth), Trade Mark Act 1995 (Cth) are recognized various forms of intellectual property within Australia. The Intellectual Property (IP) is a right to use or access to particular security interests which can be enforceable against third parties.[27] Further it must be transferable to recognize as a new form of a property as held by the Australian Court.[28]
Virtual property
Furthermore, a virtual property can be recognized as another form of property that is different from the real property but relatively similar to personal property or intellectual property. Virtual property defines as an object which belongs to an individual within a virtual world.[29] Bartle suggests that if someone bought it with good faith or earn by his/her labour, then it may own by the same person alike the tangible property.[30] He further argued that, if someone owns that that person can sell it.[31] In this view, virtual property may consider as a property which has a value, enjoyable and transferable by its owner. In contrast, Nelson argued that ‘[the] central to the concept of property is the allocation of assets within virtual worlds between the developers of the world and world’s users’ [32] and due to that reason virtual assets should be defined as ‘virtual resources’ instead of ‘virtual properties.[33] However, virtual properties are governed through the law of intellectual property in general legal practice.[34]
The legal requirement of ‘Property’
There are three main requirements of the property has identified including the right to use or enjoy, the right to alienate and right to exclude in property law.[35] The right to use or enjoy by an owner is a primary requirement of property, held by the Yannar v Eaton[36] . In Yannar, Court considered that, whether aboriginal people have exercised or enjoyed particular rights and interests in relation to the land to decide their native title rights.[37] Further, a proprietary right should be capable to alienate by its owner.[38] In contrast, Mason J held that alienate is not an essential requirement of a property due to legal exceptions.[39] The right to exclude refers the owner’s right to exclude others from entering or using the property. In Wily v st Gorge Partnership Banking Ltd[40], Appeal Court introduced a test to define a property; Finkelstein J suggested that, whether to determine a property, said interest or right of an asset should be enforceable against the third parties.[41]
Blackstone Commentaries of the law of England [42] defined a property including specific features. Firstly, the property is about a right. [43] Secondly, an owner should have full autonomy and control over the object (sole and despotic dominion).[44] Thirdly, the owner should have the right to exclude the rest of the world.[45] It means that the owner should have the control against the rest of the world in rem or in personam. Fourthly, the asset or object should be identifiable and exercise of rights with reference to its content (Externalized ).[46]
In Australia, Personal Property Securities Act 2009 (Cth) introduced an essential feature of personal property.[47] It stated that the Act covers security interests if it has attached to a security, enforceable against third parties and if the holder has been taken an extra step to protect the interest.[48]
In conclusion, the basic requirement of a property requires the rights of use or enjoy, a right to exclude, a right to alienate (subject to exceptions), enforceability against the others or third parties and demarcation of the property (identifiable). This could be applying for a virtual or intangible form of a property as well.
[1] 1958 (Vic).
[2] Property Law Act 1958 (Vic) s 18.
[3] P J Badenhorst, ‘Towards a civilised theory of property rights in Australian law’ (2019) 27 Australian Property Law Journal,137-138.
[4] Ibid.
[5] 84 FCR 423, 431
[6] Wily v St gorge Partnership Banking Ltd (1999) 84 FCR 423.
[8] Yanner v Eaton (1999) 166 ALR 258 [ ‘Yanner v Eaton’].
[9] Ibid.
[10] Ibid.
[11] Samantha Hepburn, ‘Australian property Law cases ,Materials and Analysis’ (Lexis Nexis,5th ed, 2021) ,11
[12] Felix S Cohen, ‘Dialogue on Private Property’ (1954) 9 (2) Rutgers Law Review 357,373
[13] See Yannar v Easton (n 8).
[14] See generally, Transfer of land Act 1985 (Vic); Property Law Act 1958 (Vic).
[15] Native Title Act (1993) (Cth) s 223
[16] Ibid.
[19] See Fejo v Northern Territory (19 98) 195 CLR 96 ; Mabo v Queensland [No 2] [1992] HCA 23.
[20] Ibid.
[21] Badenhorst (n 3)135.
[22] Ibid
[23] Ibid.
[24] Ibid.
[25] John V Swinson, ‘Security Interests in Intellectual Property in Australia’ (2002) 14 (1) Bond Law Review.
[26] See Australian Constitution s 51(xxxi).
[27] See, Andrew Stewart et al, Intellectual Property in Australia (Lexis Nexis , 6th ed, 2018),1020 ; Sheelagh McCracken, Security Rights in Intellectual Property in Australia (Spring, Cham,2020) DOI http://doi.org/10.1007/978-3-030-44191-3_2.
[28] National Provincial Bank Ltd v Ainsworth [1965] AC 1175
[29] John William Nelson, ‘Virtual Property Problem: what property rights in virtual resources might look like, how they might work ,and why they are a bad idea’ (2009) 41 ( 2 ) Mc George Law Review ,283 ; Richard A Bartle, ‘Pitfalls of Virtual Property’ (the Themis Group white paper, April 2004).
[30]Richard A Bartle, ‘Pitfalls of Virtual Property’ (the Themis Group white paper, April 2004).
[31] Ibid.
[32] John William Nelson, ‘Virtual Property Problem: what property rights in virtual resources might look like, how they might work ,and why they are a bad idea’ (2009) 41 ( 2 ) Mc George Law Review ,283,285
[33] Ibid.
[34] Joshua A t Fairfield, ‘Virtual Property’ (2005)185 Boston University Law Review 1047,1050.
[35] Brenden Edgeworth et al, ‘Australian Property Law’ (Lexis Nexis ,9th ed 2013),3-6
[37] Yanner v Eaton (n 8) [5].
[38] See National Provincial Bank Limited v Ainsworth [1965] AC 1175 ,1247
[39] R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 , 342-3.
[40][1999] FCA 33
[41] Wily v St George Partnership Banking Ltd (n 6), [7]
[42] William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769 (University of Chicago Press, 1979) vol 2, ch 1
[43] Badenhorst, (n 3)137-138.
[44] Ibid 139.
[45] Ibid 148.
[46] Ibid 152.
[47] Personal Property Securities Act 2009 (Cth)[‘PPSA’] S 3.
[48] Ibid.
