SCU Online Advanced Property Law: Leasehold Estate and Property

This essay provides an analysis of property rights within the context of commercial and retail leases, drawing upon Australian common law and legislative principles. It examines the concept of exclusive possession as a fundamental element in the creation of leases and explores the 'triad' of ownership rights: ownership, use, and orders. The analysis delves into the powers associated with ownership, including possession, use, and disposal, and how these elements relate to the earning of income. The essay further considers the relevance of the intention of lease parties and the ability of the owner to legally determine the fate of the property through actions like selling, leasing, or development. It differentiates between the absolute right of ownership and the powers of legitimate owners, highlighting how the law emphasizes the owner's discretion in exercising these powers. The document references several scholarly articles to support its arguments and provide context.

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Introduction
A lease on property by common law has been established as a grant of right to
exclusive possession of land for a determined term less than which the owner (grantor) has in
the land. Exclusive possession is fundamental in creation of leases and without it there is
otherwise no lease is agreement. 1
Ownership in the property rights system
Of particular interest for evaluation is the title property right - the right to property. The
legislation of the Australian laws establishes the powers of the owner by establishing the
rights “triad” that are traditional for civil law:
1) ownership;
2) use;
3) orders .
The combination of these rights (powers) constitutes the legal content of the right of
ownership as the broadest property right, providing the owner with the opportunity at his own
discretion (his authority and in his own interests) to use his property for any activity not
prohibited by law and to remove (exclude) all other persons from economic domination over
his property, if there is no his will.2 In assessing these three powers, for any subject, if he has
one or another set of rights to an object, the legal framework of opportunities for earning
income.Let us consider in more detail the three main elements (powers, functions) of the right
of ownership. Possession is the primary component of ownership is based on: the legislation
of Australian common law, legally secured (that is, based on the corresponding legal title)
1 Edwards, C. and Krendel, P., 2018.
2 Okerson, A.S., 2017.

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physical control over the object and the possibility of actual possession of the thing.
Competence of ownership actually ensures the absoluteness of your right and the possibility
of its protection.3 Possession creates the necessary prerequisites for the implementation of
two other powers - use and disposal. It is possible to own, but not use, but to use, without
owning, is practically impossible.
The order is a comprehensive element of the right of ownership and lease, the highest way to
realize the relationship between the object and the subject of ownership the right to decide
how and by whom the object itself and the income derived from it can be used.
Is the intention of lease parties still relevant?
Yes it is. I believe that the authorization of the order provides the owner with an
opportunity at his own discretion to perform actions legally determining the fate of the
property by changing its ownership, condition or purpose, alienation under the contract,
inheritance, destruction, development (reconstruction), etc. In cases where the owner sells his
thing, leases it, pledges it, transfers it as a contribution to a business company or a
partnership, or as a donation to a charitable foundation, it manages the thing.4
The owner simultaneously concentrates all three of these powers. But separately, and
sometimes together, they can belong and not to the owner. In contrast to the absolute right of
ownership, the powers of another legitimate owner not only do not exclude rights to the same
property of the owner himself, but usually arise by the will of the latter. The law emphasizes
that the owner exercises these powers at his discretion.
3 Whitman, D. A., Burkhart, A. M., Freyermuth, R. W., & Rule, T. A. (2019)
4 Zale, K., 2016.

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References
Edwards, C. and Krendel, P., 2018. Institutional leases in the 21st century. Estates Gazette.
Okerson, A.S., 2017. Buy or lease? Two models for scholarly information at the end (or the
beginning) of an era. In Books, Bricks and Bytes (pp. 55-76). Routledge.
Whitman, D. A., Burkhart, A. M., Freyermuth, R. W., & Rule, T. A. (2019). Law of Property.
West Academic Publishing.
Zale, K., 2016. Sharing property. U. Colo. L. Rev., 87, p.501.