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Ode to Property Law

By Legal Eagle

As a result of discussions on Twitter with Kat Gallow (who blogs at Curl) I have been thinking about why I love Property Law (yes, #propertylawnerd alert). As Kat noted, property law has a bad reputation amongst law students as dry and boring. However, I believe that nothing is further from the truth. I’m going to give you some reasons why Property Law is a great subject.

Have you ever thought about the concept of ownership deeply? If not, I suggest that you should. Here are some questions to start you off:

  • What gives a person a right to say that they own something?
  • What rights do people have as a result of owning a thing?
  • How do we convincingly record who owns what?
  • Are there any things that we should not allow people to assert ownership rights over? If not, why not?

Even very small children have a concept of ownership. When my daughter was about 2 years old, if you took the toy she was playing with (and particularly if you took her security toy) she’d shout, “It’s MY’S! Don’t touch. It’s my’s!” But of course, ownership and concepts of ownership are also culturally contingent. To a person from one culture, a particular resource will normally be shared, whereas in another culture, that same resource may normally be owned by an individual.

In the common law, there was a progression of how ownership developed. I’m sure you’ve heard of the saying, “Possession is nine-tenths of the law”. This essentially means that if you have physical possession and control over a thing, then it is yours. This was the original way of proving ownership in the common law, and it still has an important place in the law. However, if possession is the main way of proving ownership, and there is not enough property to go around, then it produces incentives for those who don’t possess property to obtain it by wresting control from those who do. Once you possess it (even it is by force) then it is yours. Consequently the law has to protect the existing rights of those who are possession of land or other things. It is for this reason that the common law developed the proprietary torts, which protect the rights of the person with the best right to possession: trespass to land and chattels, detinue and conversion.

With regard to land, this was complicated by the feudal system and the notion of tenure – i.e. that all title in land emanated from the monarch, and that anyone else could only own land because the monarch granted it to them. Essentially this justifies expropriation of land by a conquering monarch and the subsequent redistribution to others. It comes as no surprise to note that the feudal system was developed in the wake of the Norman Conquest, where William the Conqueror had conquered England and redistributed land to his followers. It also comes as no surprise to note that the system of tenure was a major justification for the grant of land in Australia. It was argued that Aboriginal people did not really own the land, and thus the Crown was entitled to take that land (as terra nullius) and redistribute it to whom it chose.

Of course, then if you want to prove that you really own land, what you have to do is to trace the progression of land back to the grant by the Crown as far as you can. This is how general law land developed. In order to establish ownership you had to show an ‘unbroken chain of title’ within a certain time, meaning that you had to establish that every single transfer of land or dealing with the land during that time was valid. This was sometimes difficult to prove, and produced unjust results, because a ‘break’ in the chain of title would be discovered. Additionally, you were subject to previous interests which had arisen in the land if you had ‘notice’ of them. Notice did not just include actual notice, or imputed notice, but ‘constructive notice’ (i.e. you didn’t know about the prior interest but the court said that you did because you ought to have known).  Often, when a land transfer occurred, it would take hours because the parties had to go back through years of titles in order to establish an unbroken title.

This is why Australia developed the Torrens title where you could prove that you owned land by registering your name on the title at a central land office. No need to prove an unbroken chain of title, no need to show possession: only a need to show that your name was on the title. It was immensely more simple, and generally fairer. The only difficulty arises when a ‘rogue’ becomes a registered proprietor, because necessarily, according to the bright-line title system, the mere fact of registration is enough to establish title. As Barwick CJ explains in Breskvar v Wall (1971) 126 CLR 376 at 385 – 6:

The Torrens System of registered title…is not a system of registration of title but a system of title by registration.  That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had.  The title it certifies is not historical or derivative.  It is the title which registration itself has vested in the proprietor.  Consequently, a registration which results from a void instrument is effective according to the terms of the registration.  It matters not what the cause or reason for which the instrument is void.

There are other interesting issues in property law. If the right to control something gives power, then the laws governing distribution of property rights in our society is essential. For example, an important milestone in the emancipation of women in our society was when the law was amended to allow women to own their own property. As we have explained in this post, the common law doctrine of couverture marriage meant that the woman’s property became the man’s upon marriage:

Blackstone explained as follows in his Commentaries on the Laws of England:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.

As Blackstone explains, an adult unmarried woman was considered to have the legal status of ‘feme sole‘, while a married woman had the status of ‘feme covert‘.  While a feme sole had the right to own property and make contracts in her own name, a feme covert was not recognized as having legal rights and obligations distinct from those of her husband. Through marriage, the woman’s rights and obligations became those of her husband.

Giving married women the right to own and manage property meant that they could control their own destinies to a far greater degree.

Similarly, as I have written here, the way in which we conceive of property rights has important ramifications for indigenous people. In that article, I critiqued the use of the ‘bundle of rights’ theory of property in relation to native title, and argued that indigenous property rights are far more vulnerable to extinction if they are held to operate in this way. However, I would agree with Kevin Gray that property rights are in a sense an illusion, or perhaps a state of mind. Indigenous people were deprived of their interest in land because the settler law chose to operate under the illusion that that indigenous people had no property rights.

Then there is a question of whether we should be precluded from having ownership rights in certain things. I think it’s pretty much unanimous that people should not be able to own other people (and hence we have abolished slavery). But what of body parts, for example? I have explored this issue in a post here (with a brief summary of the famous case, Moore v Regents of the University of California (1990) 793 P 2d 479, where a man claimed proprietary rights in his excised spleen cells). What of a spouse claiming property rights in the sperm of a dead man? What about virtual owners claiming property rights in virtual animals? Do animals have proprietary rights? A significant difference between SL and my political approach comes to light with our ideas on gun ownership – insofar as there is a bundle of rights, I’m all for it being pruned down to the minimum with respect to guns…whereas I suspect SL and a number of the libertarian commenters on this blog would fundamentally disagree with me. All of these are fascinating questions which go to the heart of how one envisages society working.

Of course, another exceptional thing about common law property rights is that one can have multiple (sometimes conflicting) property rights in land and things at the same time. This is known as a priorities dispute, and from solving these disputes, I get the strange pleasure that I suspect maths nerds get from solving quadratic equations.

Then there’s the eternal question of who gets property when it is found. And wouldn’t you know it, the concepts of possession and finder’s law are even relevant to the plot of Lord of the Rings (one day I must draft a problem based around this, I really must).

So I don’t want to hear anyone say that property law is dry and boring again. For sure, it has some aspects which may be just ever so slightly dry, but the fundamental questions are fascinating, and of great interest to all, lawyers and non-lawyers. Whoever said that knowledge is power spoke only a partial truth. Property is power, just as much as knowledge, and thus it befits us to know of it and the laws which govern it.

16 Comments

  1. Posted April 30, 2012 at 8:25 pm | Permalink

    On the complexity of property, Elinor Ostrom says in her Nobel prize lecture that, out in the world, five types of property right can be identified; access, withdrawal, management, exclusion and alienation.

    For example, in canon law, Church officials could manage Church property that they were generally forbidden from alienating any part of. A consequence of which is serfdom tended to persist longer on Church estates than lay ones (since freeing a bondsperson, even for a consideration, alienated Church property).

  2. TerjeP
    Posted April 30, 2012 at 9:25 pm | Permalink

    Lorenzo – can you give examples for the other types of property rights?

  3. Posted April 30, 2012 at 10:28 pm | Permalink

    I would really like to know how a Roman law concept like res nullius finished up in the common law. It’s a definite case of ‘I do not think that means what you think it means…’

  4. kvd
    Posted May 1, 2012 at 5:01 am | Permalink

    Not arguing about res nullius but I’ve often wondered over the time reading this blog if there is a general presumption that legal concepts expressed in Latin are, ipso facto, necessarily sourced from or founded in Roman law?

    Thanks for an interesting post LE.

  5. Posted May 1, 2012 at 5:22 am | Permalink

    TP@2 I would have to check her magnum opus (I am at the office), but off the top of my head:

    access: ability to use oneself.
    withdrawal: ability to take out of use.
    management: control of attribute
    exclusion: blocking other person(s) use.
    alienation: ability to transfer to another

  6. Posted May 1, 2012 at 8:55 am | Permalink

    I do believe my interest in property law was destroyed by a particularly bad exam and lots of “oh god, is it a joint tenancy?” moments.

  7. Ripples
    Posted May 1, 2012 at 9:18 am | Permalink

    I have to agree with Jarryd as it wasn’t so much the subject but the teaching of the subject that pushed me away from property law.

    The whole idea that you can own land sometimes baffles me. It seems such a big concept to own a lump of the planet that essentially is part of the whole which supports life. I of course own property but still can’t take it for granted as being mine. Given this I have never had an issue with restrictions on the use of my property.

    I often look at things like waterways and think how can you own property in the water that happens to travel down your waterway? Alas I was looking at water allocation rights yesterday and wishing I had studied property law a bit harder.

  8. Posted May 1, 2012 at 10:14 am | Permalink

    LE: I suppose what excites you about property law is the theoretical side.; most law schools focus on the practice side. For example: we spent very little time on the ‘concept’ of native title and a lot talking about how you prove one in court.

  9. Posted May 1, 2012 at 12:43 pm | Permalink

    The common law uses lots of Latin, too, sometimes in places where civilian countries don’t, which makes things very confusing! However, res nullius has a specific meaning in Roman property law upon which the notion of ‘terra nullius’ has clearly been based … by someone who doesn’t understand the Roman concept. I would like to do a blog post on this, but have an exam on Friday, so it will have to wait.

  10. kvd
    Posted May 1, 2012 at 1:53 pm | Permalink

    Thank you SL@12. I didn’t think so, but it’s as well to ask. Best of wishes for the exams!

  11. Posted May 1, 2012 at 3:14 pm | Permalink

    Yes, it will have to be a separate blog post, buggery poo bum. Very briefly, res nullius could mean ‘unowned’, but it did not mean ‘uncared for’ – it included such things as the barracks of the Praetorian Guard and public libraries! In true Roman fashion, it could apply to chattels, choses in action and realty (corporeal moveables, corporeal heritables and incorporeal moveables), and had a special role in the rules with respect to ownership of animals (vital in Scotland now, thanks to the importance of salmon fishing). I’m sure LE will enjoy the latter aspect in particular :)

    It is also an area where there was significant legal conflict between Christians and pagans, aspects of which fed into modern charities law (at common law).

    Fortunately, I do have to know it for my Property exam on May 10, so am justified in writing a blog post on the topic for y’all…

  12. Posted May 1, 2012 at 5:21 pm | Permalink

    TP@2 A quick Google turned up two papers, in both of which Elinor Ostrom defines the rights as follows:

    Access: The right to enter a defined physical area and enjoy nonsubtractive benefits (for example, hike, canoe, sit in the sun).
    Withdrawal: The right to obtain resource units or products of a resource system (for example, catch fish, divert water).
    Management: The right to regulate internal use patterns and transform the resource by making improvements.
    Exclusion: The right to determine who will have access rights and withdrawal rights, and how those rights may be transferred.
    Alienation: The right to sell or lease management and exclusion rights.

  13. Nicholas
    Posted May 4, 2012 at 1:45 pm | Permalink

    I love Property Law. Probably my favourite subject at Law School. That and Legal Theory.. they tie in together well. :)

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