#7352 - The Concept Of Property - Property, Equity and Trusts 1

Some points brought up include:

Introduction

• The approach to property law in capitalist societies was to give extensive protection to private property because it was an essential incentive of wealth creation

• Property, like most other fields of law, can’t be fully explained in doctrinal terms; the social and political context must be taken into account

What is Property?

• Property can be best described as a relation between persons in relation to things (Felix Cohen)

  • Wesley Hohfield suggests a tension between two definitions of property – one focussed on a physical object to which legal rights and privileges are attached and the other to legal interests in that object

  • Kevin and Susan Francis Gray – “It is infinitely more accurate, therefore, to say that one has property in a thing than to declare that the thing is one’s property”

• Kevin and Susan Francis Gray (The idea of Property Law) focus on the gradations of property that one may have in a resource as the central idea in land law.

  • They suggest three predominant models of property: empirical facts, artificially defined rights or “duty laden” allocations of social utility and that the concept of property oscillates between considering property as fact, right or responsibility

• In Millirpum v Nabalco Blackburn J suggested that property implies:

  • The right to enjoy or use

    • But this does not necessarily imply full/exclusive ownership (Yanner v Eaton [1999])

    • The dominion of the owner over property does not remain fixed but varies with different types of property (Wily v St George Partnership Banking [1999])

  • The right to alienate

    • There are many examples of non-alienable property (R v Toohey; Ex parte Meneling Station Pty Ltd [1982]) including those expressly decided so b statute or even the right of a beneficiary through a will for permanent residence (Re Potter [1970])

  • The right to exclude

    • In general property does entail this right – one that can be exercised against others

    • Jointly enjoyed rights (e.g. to fish/navigate) are not proprietary but rather public rights

    • In Stow v Mineral Holdings (Australia) Pty Ltd Aickin J distinguished between the right of any citizen (e.g. the Warden of a National Park) to the right of someone actually holding an estate or interest in land (wich could include legal interests such as a leasehold estate or incorporeal interests like easements and profits

• Property rights are rights over things, against other persons; contractual rights are rights against particular persons – but property rights may arise from a contract (e.g. specific performance)

• In general, contracts in relation to land attract the remedy of specific performance

• But there are distinctions where a right granted by the owner is insufficiently substantial to confer on the non-owner and definable interest in the item (e.g. licenses don’t give rise to proprietary interests)

• Licenses arise where permission is given by one to another to do an act which would otherwise be a trespass

• There are three broad kinds of licenses:

  • Bare license – no association with a contractual relation and may be revoked at the will of the licensor for any reason whatsoever (Wood v Leadbitter) and upon doing so the licensee must leave within reasonable time

  • Contractual license – arises from a contract and subject to ordinary principles of contract. If revoked, breach usually sounds in the value of the ticket but may be increased if pleasure or enjoyment is an implied promise in the contract (Jarvis v Swan Tours)

  • Proprietary License – a licence is coupled with the grant of a proprietary interest – cannot be revoked

• From this judgement it follows that the parties did not create a proprietary interest in the building and hence a license does not confer such an interest

• Furthermore it is clear that even if a license can attract certain remedies – it is not enforceable against third parties

• In Claude Neon Ltd v Melbourne and Metropolitan Board of Works the HCA held that the parties intended to create a lease over roofs, parapets and exterior walls by a grant that conferred exclusive possession of those parts

• Quoting from Kevin Gray and Susan Francis the text acknowlages that interests are not proprietary only because they are enforceable against third parties – this is circular reasoning that says proprietary rights which are assignable and enforceable against third parties – and these rights are those traditionally identified as proprietary – the High Court acknowledged this in Yanner v Eaton (1999) ALR 258

• A better approach – Blackstone’s conception of property rights as a distinctive measure of ‘despotic domination which one man claims over the external things of the world, in total exclusion of the right of any other individual in the universe” – according to this licenses don’t confer proprietary rights because they are given insufficient domination of the land – there is “too little legally endorsed concentration of power” (Gray)