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Fundamental Concepts (ANNA)

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FUNDAMENTAL CONCEPTS1 The Nature and Scope of Personal Property LawMeaning of property Property is a thing capable of being owned by a person It recognises the rights of ownershipproprietary rights of the person to the thing property in the thing is vested in the person Significance of property rights Property rights are significant because they recognise the following rights in the person Right to possession use and enjoymentRight to transfer for value or by giftRight to assert against the whole worldexclude all othersRight to exclude others Property rights are rights against the world This includes rights in rem that is the right to the thing and the right to recover the thing itself as well as rights in personam which entitles the person to damages for its loss If someone wrongfully takes your property you can assert the right to get it backright in rem Classification of property at common lawPROPERTYRealPersonalChattels RealChattels Personalleasehold interests in landThings in Action Things in intangible propertyPossessionLegalEquitableAll property can be divided into real property and personal property Real property Land and all things embedded into and attached to the landPersonal property All other property that is not real property In some circumstances property and the category that it belongs to can change Example 1A tree is real property as it is attached to the land However it becomes personal property if it is cut down Example 2Bricks on a persons property is personal property If these bricks are used to build a house on that land they become real property Chattels real Chattels real are leasehold interests in land Chattels personal Chattels personal can be further divided into things in action and things in possession Things in possession This is tangible property They are physical objects which are movable and are capable of physical possession Things in action This is intangible property It is essentially a right enforceable by an action eg copyright patent These rights can be evidenced by a physical document The real value of the property is not the document or piece of paper but rather the rights that it represents eg share certificate cheque There is no right to enjoy or occupy the propertyit is not a right that is capable of being physically possessed or held Classification of property by statutes Given all the above information it must be noted that some legislation dictates of defines different types of property for that purpose or context The following are examples Corporations Act 2001 Cthproperty means any legal or equitable estate or interest whether present or future and whether vested or contingent in real or personal property of any description and includes a thing in action ASIC Act 2001 Cthsameand moneyTrade Practices Act 1974 Cthgoods includesaships aircraft and other vehiclesbanimals including fishcminerals trees and crops whether on under or attached to land or not anddgas and electricityTrade Practices Act 1974 CthServices includes any rights including rights in relation to and interests in real property benefits privileges or facilities that areprovided granted or conferred in trade or commerceSale of Goods ActGoods includes all chattels personal other than things in action and money it includes growing crops and things attached to or part of the land which are agreed to be severed before sale or under the contract of saleUnsettled classifications of property InformationThe Common Law does not treat information eg information stored in a USB as a piece of property However Equity does protect the misuse of information and imposes an obligation on people which binds their conscience to use it properly Human body and partsThe issue remains as to whether a body can be owned after death or whether there is only a right to prepare that body for burial
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