On Tue, 2013-09-03 at 20:17 -0700, Rick Moen wrote:
Quoting Lev Lafayette (lev@levlafayette.com):
Unincorporated associations can own property. (Provably. I've already covered this.)
Not here they can't.
So, I sell a biscuit to you and Russell Coker for AUS$1, naming you co-owners as the Melbourne Twins. There are witnesses to my sale. It is formalised, in fact, by a written contract, as biscuit sales are no light matter.
A year later, I haul you into court seeking recovery of my (now rather stale) biscuit, asserting that I am still the owner of said carbohydrates because the Melbourne Twins are not a legally valid purchaser. You're saying I would prevail?
I think the distinction here is the following. In the case of The Melbourne Twins, the biscuit is jointly owned by Lev and Russel, and this will always be Lev and Russel. However if later on the Melbourne Twins became two other individuals, say Peter and Mary, and Lev and Russel cease to be The Melbourne Twins, it does not follow that the biscuits will belong to the new Melbourne Twins. The biscuit is jointly owned by Lev and Russel, not by the Melbourne Twins, The Melbourne Twins here is only words used to designate these 2 people as one. The Melbourne Twins *is* (note the use of the single *is*) not here an entity entitled to own property. But if the Melbourne Twins were an incorporated body, and later on its Members changed from Lev and Russel to Peter and Mary, Peter and Mary would get to eat the rather stale biscuits, but not Lev and Russel. So its correct that you have lost your biscuit in either case. But who gets to eat it is different. The usual IANAL applies. But that's how I would interpret it. Cheers Daniel.
Anyway, no, you are mistaken, and I've just looked up caselaw on the matter. What _is_ true, both in Australia and (to my knowledge) every other jurisdiction based on English common law, an unincorporated association is not a juristic entity, and is treated as the aggregate of all its members at any given time. However, in no way does it follow that they cannot own property. They can and do all the time. Watson v J & AG Johnson Limited (1936) 55 CLR 63 is one case you will want to read, which among other things affirmed and described the ownership of Loxton Club, Loxton, SA.
You want closer to home? OK, in Freeman v McManus [1958] VR 15, the Victoria Supreme Court ruled that an unincorporated political association could lawfully enter into contracts binding on its members (albeit with pragmatic difficulties getting assent of those members). The ability to form binding contract leads directly to the right to own property as a necessary consequence.
Up in Queensland, Rendall-Short v Grier [1980] Qd R 100 established that members had a 'proprietary right' in insisting on a committee of management applying income and property of the association in the promotion of its objects.
In Leahy v A-G (NSW) [1959] AC 457 (Privy Council); (1959) 101 CLR 611 (High Court), the High Court agreed that a gift of real estate to an unincorporated order of nuns was valid despite the order's lack of juristic existence. The Privy Council overturned the gift on other grounds, but did not overrule the High Court on that point of property law.
In Re Sick and Funeral Society of St Johns Sunday School, Golcar Dyson v Davies [1972] 2 All ER 439, the dispute concerned prepaid tuition fees paid to an unincorporated Sunday school -- property -- and its disposition unpon the Sick and Funeral Society's dissolution. The court ruled that all society members who had paid fees within the past three years were entitled to share in division of the Society's property. This holding was then cited a few years later in RE GKN Bolts & Nuts Ltd Sports & Social Club and Leek v Donkersley [1982] 2 All ER 855, to much the same effect.
Yes, those are all Australian cases, and all are cited as precedent.
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