The Nature and Scope of Rights of Removal

Property Law Review, vol. 2, no. 3, pp. 123-138

16 Pages Posted: 30 Sep 2015

See all articles by Samantha Hepburn

Samantha Hepburn

Deakin University, Geelong, Australia - Deakin Law School

Steve Jaynes

Deakin University - Deakin Business School

Date Written: 2013

Abstract

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.

Suggested Citation

Hepburn, Samantha and Jaynes, Steve, The Nature and Scope of Rights of Removal (2013). Property Law Review, vol. 2, no. 3, pp. 123-138, Available at SSRN: https://ssrn.com/abstract=2666465

Samantha Hepburn (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

HOME PAGE: http://www.deakin.edu.au/law

Steve Jaynes

Deakin University - Deakin Business School ( email )

Australia

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