The nature and scope of rights of removal

Hepburn, Samantha and Jaynes, Steve 2013, The nature and scope of rights of removal, Property law review, vol. 2, no. 3, pp. 123-138.

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Title The nature and scope of rights of removal
Author(s) Hepburn, SamanthaORCID iD for Hepburn, Samantha
Jaynes, SteveORCID iD for Jaynes, Steve
Journal name Property law review
Volume number 2
Issue number 3
Start page 123
End page 138
Total pages 15
Publisher Thomson Reuters
Place of publication Sydney, N.S.W.
Publication date 2013
ISSN 1838-3858
Summary The rationale underlying the fixtures and accession presumptions is the need to protect the value of the chattel as well as the need to protect third-party interests. The destruction of the independent legal status of an attached chattel is generally deemed appropriate where the value of the co-mingled asset will be diminished if the chattel retains a separate legal title and this would generate unfairness because third parties have dealt with the co-mingled asset on the basis of its overall value. Rights to remove have evolved under both common law and equity to moderate the scope of these presumptions. Common law will uphold the right of a tenant to remove chattels that have been attached to leased premises during the currency of the lease. Equity on the other hand will uphold the right to remove affixed chattels in circumstances where the enforcement of such an entitlement is consistent with contractual intention and transactional fairness. This article examines the different rights of removal that have evolved under Australian law to date and the emergent statutory framework supporting these rights. It discusses the historical purpose and structural utility of these entitlements within a land framework that supports fixtures presumptions. Rights of removal, whether validated at law or in equity, confer positive entitlements upon the holder to access and remove affixed goods in circumstances where, because of the fixtures and accession presumptions, those goods no longer retain any separate legal status. The capacity of the holder to enforce this right against third parties is illustrative of their distinctive proprietary perspective.
Language eng
Field of Research 180124 Property Law (excl Intellectual Property Law)
Socio Economic Objective 940407 Legislation, Civil and Criminal Codes
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2013, Thomson Reuters
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Deakin Business School
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