Real Property Law
1. This is a research assignment on key principles of land law. It is worth 40% of the overall marks for this course.
2. You are required to answer two (2) questions from the choices below:
? one question from Part A, and
? one question from Part B.
3. All questions are of equal value.
4. In preparing your answers, you are required to read more widely than the prescribed readings. The additional references in Webb & Stephenson, and the references lists on Moodle will provide a good starting point.
5. You must attach the completed cover sheet. Assignments will not be accepted unless a signed cover sheet is attached.
6. Start each of the two questions on a new page and indicate clearly which question you are answering.
7. You must comply with the Style Guide which is included in the Course Outline.
You must submit by the due date via Turnitin on the Moodle site for the class, AND place a hard copy in the TABL 2972/BENV 2814 Assignment Collection Box in the School of Taxation and Business Law (Quad Building on second level in South Wing).
Word limit: 2000 words total – i.e. 1000 words for each question. ________________________________________________________________________
PART A: Answer ONE question from this part
Critically evaluate the following extract from the judgment of Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 171 as a statement of the nature of proprietary interests:
“I think that property in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights must co-exist before there can be a proprietary interest, or deny that each of them may be subject to qualifications.”
You should address each of the three rights listed by Blackburn J. You may also wish to refer to other characteristics of property. This question does not require you to consider Native Title.
Question Two: NB. If you have answered Question One, you should NOT answer this question. Choose your second question from Part B.
With reference to both case law and legislation, critically evaluate how the development of Native Title has modified the concept of property in Australia.
__________________________________________________________________________ PART B: Answer ONE question from this part
Brett MR in Wandsworth Board of Works v United Telephone Company (1884) 13 QBD 904 at 915 referred to the following maxim as a ‘fanciful phrase’:
“the person who owns the land owns it from the heavens above to the centre of the earth below”.
Discuss the extent to which the maxim is an accurate reflection of the law in Australia.
With reference to the decision in Walsh v Lonsdale (1882) 21 CH D 9 discuss the differences between legal and equitable interests in land. You should include specific examples in your answer.
Equity is said to favour tenancy in common. Assess whether the three situations in which equity would presume a tenancy in common are exhaustive, and comment on whether the equitable presumption in favour of a tenancy in common has been altered by the decision of the High Court in Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278.
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