#7008 - Policy - Property A

Concept of property 4

Nature and essence of property 4

Hohfeld’s three conceptions of property 4

Felix Cohen article 4

Other notes 5

Justifications for and criticisms of private property 5

Property theories: Ziff’s Hierarchy 5

Justification theories (first order theories in Ziff’s hierarchy) 5

Characteristics of property (second order theory) 8

The characteristics 8

Milirrpum v Nabalco (1971): legal meaning of property, characteristics 8

Mabo v Queensland (No. 2) (1992) 9

Property rights differ from contractual rights 10

Subjects and objects of property 10

Recognition of new forms of proprietary interest 11

Tulk v Moxhay: restrictive covenants 11

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937): property in a spectacle rejected 11

ABC v Lenah Game Meats (2002) 11

Native title 11

Mabo v Queensland (No 2) (1992) 11

Recognition of new rights at current 12

Property in the human body 12

Constitutional protection of property rights 13

Vic CHRR 13

Title to land in Victoria 13

General law title 13

Torrens system title 14

Native title 14

Fragmentation of proprietary interests 15

Fragmentation by reference to time: doctrines of tenure and estate 16

Doctrine of Tenure 16

Doctrine of Estates 17

Fee simple estate (absolute and modified) 17

Life estate 19

The doctrine of waste 21

Fee tail estate 21

Fragmentation by reference to legal and equitable interests 22

Equitable interests 22

Trusts 22

How trusts arise 23

Expressly 23

By operation of equitable principles 23

Fragmentation by reference to time: leasehold estates 23

Definitions 23

Classification of leases 24

Fixed term 24

Periodic 24

Tenancy at will (quasi-leasehold estate) 24

Tenancy at sufferance (quasi-leasehold estate) 24

Characteristics of leases 25

Right to exclusive possession 25

Certainty of duration 25

Regulation of leases 25

Leasehold covenants 25

Express covenants 25

Covenants implied into particular leases by statute 25

Assignment of leases 25

Contractual licences 26

Bare licence 26

Contractual licence 26

Licence coupled with a grant 26

Leases vs contractual licences 27

Wrongful revocation of licences 27

POLICY Q: should contractual licences be a new type of property interest? 28

Servitudes 28

Easements 28

Definition 28

Positive and negative easements 28

Policy questions 28

Security interests 28

Types of security interest 29

Reasons for security interests in lending 30

Mortgages vs term contracts 30

General law mortgage 30

Torrens system mortgages 32

Differences between legal and equitable mortgages 32

General law 32

Torrens system 32

Clogs on the equity of redemption: 33

Unconscionability 33

Acquisition and transfer of proprietary interests: an overview 33

By transfer (from another who already has an interest) 33

By original acquisition 33

Insurance for equitable interests in land (between contract and settlement) 34

Possible policy question 34

Creation of leasehold interests 34

Is an agreement for a lease as good as a lease? 34

Possession and adverse possession 35

Principles of possessory title 35

Justifications for adverse possession 35

Policy issues 36

Limitation periods 37

Adverse possession and human rights 37

• A thing (object) in which rights are held

• The rights a person (subject) has in relation to a thing (object)

• The rights a person (subject) has over other persons in relation to a thing (object).

Notes: Any definition of property, to be useful, must reflect the fact that property merges by imperceptible degrees into government, contract, force and value’ (374) Cohen

Bentham Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases. (Quoted in F. Cohen 371)

F COHEN (374):

To the world: (slides)

Tax: the state enables you to have your property in the first place and then takes a fee for this.

From reading of article:

• Property is not a collection of objects, but the relationship between people and those objects.

• Private property is subject to limitations based on the rights of other individuals, therefore people do not generally have the right to do whatever it is they want with their property.

• The institution of property may or may not involve external physical objects, but it always involves relationships between people.

• Not only is there valueless property, but propertyless value. Property is not wealth (eg if there is no scarcity of an item, that item may cease to be property – eg air. But if there is a scarcity of air, air may be property that can be exchanged for consideration).

• Productivity, certainty, enforceability and fairness may be considerations.

• Private property may or may not involve a right to use something oneself. It may or may not involve a right to sell, but it will always involve a right to exclude others from doing something.

• However a power to exclude will not always involve a property right. The kind of power to exclude that is essential to property rights is the power when you can count upon the state to assist you to enforce your rights (ie there is a predictable action the state will take – “established expectations” per Bentham. Property is a function of government and sovereignty.

• In conclusion: “private property is a relationship among human beings such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision.” (Note that the word “exclude” in relation to property relates to the WHOLE WORLD).

• Property is a bundle of rights (eg more than one person may hold rights, or one person may hold many rights)

• Different societies have different systems

  • Private property –individual persons have right to exclude the rest

  • Common property – property is communally owned (economists calls this ‘open access’)

  • Collective property – owned by State on behalf of everyone

First order theories: why do we have the institution of private property?

Second order theories: assuming we have private property, what ‘things’ should be objects of property?

Third order theories: assuming a ‘thing’ can be owned, who should hold the right to it?

(1.110E) Justification theories are necessary because property rights come about due to a belief that the right to hold private property is a human right. A legal belief has to be grounded in a public belief that the right is morally right, since property rights (eg in land larger than a person can work himself, capital) by some measure allow a person to control the lives of others.

1. First occupation theory- finder’s keepers

• (M R Cohen article) Based on “the assumed right of the original discover and occupant to dispose of that which thus became his”.

• However in Australia – the first people do not have all title – Crown has this. This is a fairly crude older theory.

2. Locke’s labour theory/natural rights theory – the right to the fruits of one’s own labour

• According to this theory, all property was originally owned in common but people (at Locke’s time only men) could appropriate the property by mingling their labour with it. Things belonged to the man who had made them.

• Writing in 1690. Before 1688 the King owned all the land and then the aristocracy did. Although originally we held everything in common, this theory said men had a right to appropriate property as a result of them mingling their labour with the property. Eg if you develop the property (eg are a peasant toiling the land you may have a proprietary right to the produce of the land). This theory did not take off in England at the time Locke was writing because the peasants did most of the labour and if followed this would mean they (not the govt etc) owned the land. Locke’s theory was often used to dispossess the land of First Peoples as they did not ‘toil the land’ as the colonialists thought they should. You will see this theory come up in court cases quite often – has this person put work into the land?

• ‘Life, liberty and property’ (Locke’s catch-cry): [in US and the pursuit of happiness]

• Note Locke’s labour theory was also used to attack private property, as in a capitalist system the owners of land/capital were able to deprive workers of the fruits of their labour.

3. ‘Personhood’ theories (eg Hegel) – self-realisation through external expression of will and personality

• Kant and Hegel – ‘means by which people could express their individual will and personality’ – private property essential for human freedom (SN 1.113, 87)

• Recognition of property as a human right – Charter of Human rights and responsibilities. Section 20 – must not be deprived of property otherwise than in accordance with the law.

• self-realisation through external expression of will and personality. Private property seen as essential for human freedom. Vic CHRR – have a right not to be deprived of property, property rights is a human right according to this! Taken to an extreme people should have the right to sell themselves into slavery (Nozick).

• private property is a means by which people can express their individual will and personality. “Willing” the thing to be his/hers and appropriating it...