Advanced Property Law

This document discusses advanced property law topics such as fee simple bundle, unit entitlement in strata systems, security interest under PPSA, and the comparison between common property and public property. It provides an in-depth analysis of these concepts and their implications in property ownership and management.

Running head: ADVANCED PROPERTY LAW 1
Advanced Property Law
Student’s Name
Date

ADVANCED PROPERTY LAW 2
QUESTION 1
Key and Paramount ‘Sticks’ in Fee Simple Bundle
There has been insufficient research and discussions around fee simple bundle despite its legal
and economic supremacy1. In a fee estate the owner of the land has the most number of sticks in
the bundle. While the definition of fee simple bundle has been based on comparison to peripheral
freehold life estate and obsolete fee tail estate, Simon Douglas relates this to lack of better fee
simple analysis2. The definition and understanding of fee simple bundle not only helps in
identification of key sticks in the fee simple bundle but it also helps in determining the
paramount stick in this bundle.
In a bundle of rights, there are several rights which have been forwarded in real estate properties,
this include right of exclusion, right of enjoyment, right of disposition, right of possession and
right of control. For a fee simple bundle, the key sticks are right to exclude, right to possess, right
to alienate and right to enjoy and use3.
An explanation of why these rights are key is based on the possession of several sticks by the
owner. The right to exclude in a fee simple bundle entails the fee simple holder limiting or
completely restricting the access of the property which he owns. Easement in this case may be
permitting access to utility unless there is a warrant that goes against this. Right to alienate
entails the voluntary transfer of property form the owner to another person through sales or other
1 Theodore, Steinberg. “Slide Mountain, or, The folly of owning nature”. University of California Press,
(1995), 9.
2 , Andrea, Blake. "New dimensions in land tenure-the current status and issues surrounding carbon
sequestration in regional Australia." Australasian Journal of Regional Studies, The 24, no. 3 (2018), 309.
3 Eric T, Freyfogle. “On private property: finding common ground on the ownership of land”. Beacon
Press, (2007),70.

ADVANCED PROPERTY LAW 3
means. Scholars have argued that it merely applies for fee simple bundle, therefore these rights
are viewed as unenforceable and void.
Arguably, the most important stick right of the fee simple estate holder is the right to use and
enjoy. Initially several scholars argued that the predominant stick in the fee simple bundle was
right to ownership or possession. This is because of the several number of sticks that is possessed
by the holder.
However, I support Simon Douglas argument which supports the right to use and enjoys the most
important stick because, the fee simple owner has the greatest number of sticks in facts and at
law which asserts the activities performed or carried out on the land. As a result, this stick forms
basis of all other rights. All other right is viewed from the perspective of right to use and enjoy
understanding the rights that are possessed by the fee simple holder.
QUESTION 2
Unit Entitlement in Strata Systems
The development of strata systems in Australia has been a solution to the challenges
experienced in property ownership due to increase in population, urbanization, increase in
standards in standards of living and decrease in family unit amongst other challenges4. This
system determines land ownership in a specific region called a lot and shared regions in the same
area called pools. One key element of this system is the unit entitlement.
A unit entitlement which is indicated in the strata plan together with the size, sketch, easement
and other title reference details is the proportion owned by the holder out of the whole strata
property. It can also be defined as the share owned by lot owners in a strata property. There are
4 Allison, Benson. "Property law: NSW strata reforms: How the changes will affect you." LSJ: Law Society
of NSW Journal 27 (2016), 84.

ADVANCED PROPERTY LAW 4
three main purposes of unit entitlement which are, for the voting powers of lot owners, for
determining the amount which are paid for levies and to determine the shares of each lot owner.
Unit entitlement are determined during strata registration based on the strata property market
value5.
The operation and management of the strata systems is carried out by the strata management. A
successful management of the strata entails effective ownership framework, financial
management and developmental management of various owners and users in the strata property.
This has been greatly achieved by these administrators with the help of unit entitlement which
has made their work more efficient and effective in the manners mentioned below.
Firstly, unit entitlement assists the administrators in financial management. Pursuant to section
78 of the Strata Schemes Management Act 1996 the lot owners are supposed to provide levies
which are used in in repairs and other utilities as decided in the annual general meeting. This
levies are provided as per the unit entitlement; therefore, the administrators are able to determine
levies based on entitlement6. This therefore helps them in financial management.
Unit entitlement have also assisted the administrators in records management. The administrators
have the permission of inspecting their records as per section 108 of Strata Schemes
Management Act 1996, or they may give their books for inspection to other special companies
whose focus is auditing7.
5 Jacqui, Bell, Bonnie Dale, Caitlin Kameron, and Michelle Havill. "Sharing the Air: The Need for Strata
Law Reform to Reduce Second-hand Smoke Exposure in Multiunit Housing in Australia." Journal of law
and medicine 25, no. 2 (2018), 465.
6 Keang Sood , Teo. "By-laws in a strata scheme." Singapore Journal of Legal Studies (2015), 189.
7 Laurence, Troy, Hazel Easthope, Bill Randolph, and Simon Pinnegar. "‘It depends what you mean by
the term rights’: strata termination and housing rights." Housing Studies 32, no. 1 (2017), 4.

ADVANCED PROPERTY LAW 5
Unit entitlement enables them to follow in details the amount of resources or services offered to
the lots and in the case that there is a misunderstanding they are aware of where to start from8.
Unit entitlement also help the administrators in repairs and maintenance. Lot owners are
supposed to carry out repairs I their lots in the case of damages and the common ground should
be repaired by the strata management. Unit entitlement helps in providing these distinctions thus
defining responsibilities of the lot owners and the strata management. Pursuant to section 96 of
the Strata Schemes Management Act 1996 on strata roll, unit entitlement has been the basis of
determining the content of strata roll which contains name, agents, addresses, details of
insurance, mortgages, tenants and other details of strata scheme9.
Conflicts have also been greatly managed due to unit entitlement10. Unit entitlement has greatly
reduced cases that rose as a result of land ownership by clearly defining the space of each lot
owner. Furthermore, cases of complains of unfair payment of levies have been dealt with due to
the introduction of unit entailment which is a standard for the calculation of levies.
It is very clear that unit entitlement is very critical in the management of strata systems. The
above examples indicate a few ways in which strata management is crucial to the administrators
or strata management and extensively to the lot owners.
QUESTION 3
8 Jacqui, Bell, Bonnie Dale, Caitlin Kameron, and Michelle Havill. "Sharing the Air: The Need for Strata
Law Reform to Reduce Second-hand Smoke Exposure in Multiunit Housing in Australia." Journal of law
and medicine 25, no. 2 (2018), 465.
9 Bruce, Whittaker, and Ashurst Partner. "A review of the Personal Property Securities Act 2009: final
report." (2015).
10 Alana, Mann. "Common Ground: Connections and Tensions Between Food Sovereignty Movements in
Australia and Latin America." In Mapping South-South Connections, Palgrave Macmillan, Cham (2019),
81.

ADVANCED PROPERTY LAW 6
Security interest under PPSA
Personal Property Act 2009 are laws that govern or administrate creation and enforcement of
security interest amongst other key issues. The new PPA Act which unified several State and
Territorial rule in security interests eliminated several existing register creating a national
register for registration of security interests11. The online register provides a base where
Australian citizens registered security interests and confirmed if their personal properties were
under security interest meaning they may face certain consequences such as loss of those
properties12.
It is therefore important to understand security interests in order to comprehend PPA Act. In
order to understand security interest, it is important to define personal property. Personal
property pursuant to section 10 are all properties except land or any entitlement or jurisdiction
accorded by State, Territorial or Commonwealth law and other jurisdictions which are declared
not to be personal property on the basis of Personal Property Security Act. Land in this case
includes real estate, chattels and interest apart from fixtures as illustrated in section 8(1)(j).
Security interest is defined in section 12(1) of Personal Property Security Act 200 as interests
from personal property obtained through a transaction which is meant to secure an obligation or
certain payment that should be made without consideration of the transaction or the person
expected to meet the obligation. Security interest could include interest obtained from personal
property on any of these transactions, chattel mortgage, a hire purchase agreement, a pledge, an
11 Robert, Burrell, and Michael Handler. "Registering Security Interests Over Trademarks in Australia:
Theory and Practice." In The Law and Practice of Trademark Transactions. Edward Elgar Publishing,
2016.
12 Francina, Cantatore. "Intellectual Property Rights and the PPSA: Challenges for interest holders,
creditors and practitioners." AUSTL. INTELL. PROP. J. 25 (2015): 1.

ADVANCED PROPERTY LAW 7
assignment a transfer of title, a trust receipt and a fixed charge amongst other transactions on
personal property.
According to section 12(3), it may also include the following areas regardless of the transaction
is aimed at fulfilling an obligation, interest of a seller who provides a buyer with goods or
services under commercial consignment, interests of a deliverer of goods under PPS lease and
interests of a conveyor in the process of transferring an account on chattel paper.
Personal Property Act brought major reforms by introduction of certain business transaction that
initially could not be regarded as to create security, therefore, there is the introduction of security
interest that are under the PPSA. Traditionally, PPSA viewed the legal form of a transaction in
order to determine the impacts of the transactions instead of looking at economic consequences.
The introduction of PPSA 2009 saw modifications that were in favor of functional approach.
A functional approach entails the acts application to all transaction creating security interest
apart from real estate without consideration of the form or person with the obligation to fulfill13.
These approach as indicated in section 12 has included traditional transaction on personal
properties such as fixed and floating charges and legal and equitable mortgages, in addition, it
has also incorporated title based security which included title retention and hire purchase.
Some of the modification introduced due to this approach include, exclusion of fixtures from
being affected by PPSA, exclusion of certain licenses from the coverage of PPSA making them
viable to be personal property but they cannot be security interests. One major introduction by
this functional approach is the need to register or perfect the security interest or risk losing the
security interests in the collateral.
13 Sean, Thomas. "Security interests in intellectual property: proposals for reform." Legal Studies 37, no. 2
(2017), 214.

ADVANCED PROPERTY LAW 8
QUESTION 4
Common property and Comparison to Public Property
Common property resources are properties which are communally owned and no individual has
exclusive rights over such resources. They are located in various settings but with similar
characteristics. Some of the modern common places in a strata system are: balcony walls, floors,
ceilings, incidental open spaces, cemeteries and land trusts. In a wider environment common
property includes fisheries, forests, grazing land, wildlife, mountains, hills and surface irrigation
amongst other natural land resources14.
Some of the various determining characteristics of common property in land are:
Exclusion and indivisibility: In common land while a group of members are allowed access to
the use of land others are excluded, meaning they are not allowed to access these resources.
While several issues have been put forward to explain this situation such as need for standards of
conservation amongst certain groups compared to others, some scholars have labelled the move
as ‘territoriality’ which is the need to exercise control in a particular resource in proving
dominance.
Subtractability and Jointness
These word by Ostrom explain a distinguishing feature of common lands which is under looked
yet very key15. In using a common land resource with a continuous pool of benefits, the person
using the resource subtracts from the others their benefit of use. This can be illustrated perfectly
in the grazing field where the grazing of one person subtracts from the rest the land resources at
14 Jeremy, Coggins, Bianca Teng, and Raufdeen Rameezdeen. "Construction insolvency in Australia:
reining in the beast." Construction Economics and Building 16, no. 3 (2016), 40.
15 Dale A., Whitman, Ann M. Burkhart, R. Wilson Freyermuth, and Troy A. Rule. Law of Property. West
Academic Publishing, 2019.

ADVANCED PROPERTY LAW 9
that time. This distinguishing feature establishes the justness which is the need to use together at
the same time which sometimes is limited by congestion.
Common property rights and resources differ greatly from pubic property rights and resources.
Common property rights in land have been defined as right of members of a community, society
or a group to generally use and enjoy certain resources. Such resources are owned by the
community and used also by the specific community giving to the rights to exclude others16. On
the contrary, public property rights in land, the land is owned publicly however its use and
enjoyment is managed by the local government agency or organization which has been given the
right to do so17. Most of the times citizens have felt like this property are owned by the
government and they have no rights over them yet this is wrong.
Unlike in public property where the individuals concerned have no greater clam compared to the
other, in common property there is a particular group with greater claim compared to the rest.
The socialization of public property is collective including strangers while the socialization in
common land as a property is amongst individuals who ‘somewhat know’ each other as
identified by Brill.
16 Wantrup-Ciriacy, Siegfried V., and Richard C. Bishop. "” Common property" as a concept in natural
resources policy." Natural resources journal15, no. 4 (1975), 713.
17 Andrea, Blake. "New dimensions in land tenure-the current status and issues surrounding carbon
sequestration in regional Australia." Australasian Journal of Regional Studies, The 24, no. 3 (2018), 309.

ADVANCED PROPERTY LAW 10
BIBLIOGRAPHY
Bell, Jacqui, Bonnie Dale, Caitlin Kameron, and Michelle Havill. "Sharing the Air: The Need for
Strata Law Reform to Reduce Second-hand Smoke Exposure in Multiunit Housing in
Australia." Journal of law and medicine 25, no. 2 (2018): 465-488.
Benson, Allison. "Property law: NSW strata reforms: How the changes will affect you." LSJ:
Law Society of NSW Journal 27 (2016): 84.
Blake, Andrea. "New dimensions in land tenure-the current status and issues surrounding carbon
sequestration in regional Australia." Australasian Journal of Regional Studies, The 24, no. 3
(2018): 309.
Burrell, Robert, and Michael Handler. "Registering Security Interests Over Trademarks in
Australia: Theory and Practice." In The Law and Practice of Trademark Transactions. Edward
Elgar Publishing, 2016.
Cantatore, Francina. "Intellectual Property Rights and the PPSA: Challenges for interest holders,
creditors and practitioners." AUSTL. INTELL. PROP. J. 25 (2015): 1.
Coggins, Jeremy, Bianca Teng, and Raufdeen Rameezdeen. "Construction insolvency in
Australia: reining in the beast." Construction Economics and Building 16, no. 3 (2016): 38-56.
Ciriacy-Wantrup, Siegfried V., and Richard C. Bishop. "” Common property" as a concept in
natural resources policy." Natural resources journal15, no. 4 (1975): 713-727.

ADVANCED PROPERTY LAW 11
Elie, Marc, and Fabien Locher. "Disasters: A Crash Test for Property." Global Environment 11,
no. 2 (2018): 219-235.
Freyfogle, Eric T.” On private property: finding common ground on the ownership of land”.
Beacon Press, 2007.
Mann, Alana. "Common Ground: Connections and Tensions Between Food Sovereignty
Movements in Australia and Latin America." In Mapping South-South Connections, Palgrave
Macmillan, Cham, (2019): 81-109.
Steinberg, Theodore. “Slide Mountain, or, The folly of owning nature”. Univ of California
Press, (1995): 3-19.
Teo, Keang Sood. "By-laws in a strata scheme." Singapore Journal of Legal Studies (2015): 189-
207.
Thomas, Sean. "Security interests in intellectual property: proposals for reform." Legal
Studies 37, no. 2 (2017): 214-247.
Troy, Laurence, Hazel Easthope, Bill Randolph, and Simon Pinnegar. "‘It depends what you
mean by the term rights’: strata termination and housing rights." Housing Studies 32, no. 1
(2017): 1-16.
Whitman, Dale A., Ann M. Burkhart, R. Wilson Freyermuth, and Troy A. Rule. Law of
Property. West Academic Publishing, 2019.