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Possession and Ownership
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Lecture notes of 19 pages for the course Property Law at UKC
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Property Law – Week 15 Lecture NotesPOSESSION AND OWNERSHIP
Introduction to ownership and possession
Outline Of lecture
Models of ownership (podcast 2 & 3): Key features of dominant
models, Critique, Alternatives
Land ownership in England and Wales (podcast 4), Impact of history
on English land law, Framing property interests
Possession (podcast 5 & 6) , What does it mean?, How does it play
out in the cases?
Remember the stacks….
What do the stacks mean….
• Thinking as a story teller
• Dystopia
• Intensifies the problems of the present
• A reimagination of trailer trash
• Thinking as a land lawyer
• Putting your land law goggles on
• Who owns what?
• Who has obligations to whom?
• Informal rights
• Rights of access, maintenance etc…
• Recuperating the underlying politics of land ownership
• Politics inherent in the legal organisation of property interests
• Macro politics of land ownership
• ‘Property is theft!’ Proudhon 1840
Favela in Rio de Janeiro
• Complexity of ownership and possession
• Formality and informality
• Key question of land law
• When should informality be recognized?
,And closer to home….
The cladding scandal and the distribution of responsibility
Models of Ownership 1
This podcast introduces you to ways in which ownership is
conceptualised. We all think we know when we own something but
what do we mean by this? Blackstone’s model. Critique.
Developments of this mode. Exclusionary ownership model. Bundle
of sticks model
Sir William Blackstone
• English jurist, judge and Tory politician of the eighteenth century.
• Commentaries and the Laws of England 1766
• Attempts to describe what ownership is
• This has a strong impact upon our (legal) imagination
• The right to property is ‘that sole and despotic dominion which
one man claims and exercises over the external things of the
world, in total exclusion of the right of any other individual in the
universe’
• Blackstone
• Equates property with private ownership
• Provides an explanation and justification of private ownership
• Compare with approach of John Locke
Does sole and despotic dominion work as an idea?
• How useful is the idea that nearly limitless rights are consolidated in a
single owner who can exclude all others?
Does it work in the more complex world of land?
• Owners - property interest holders – come in a huge variety and there is
no sole and despotic owner
• Co-owners
• Trustees
• Incorporated groups
• Private owners frequently grant subsidiary rights
• A freeholder grants a lease
• A leaseholder grants a sub-lease
• I let my neighbour use my drive for access to her garage
• There are other constraints on ownership so that sole and absolute
dominion is meaningless
• Planning
, • Regulations
• Ownership is a complex set of relationships and never simply about the
relationship between one person and a thing
• Even in the absolutist model the right is to exclude others, so
others have a duty to the owner and therefore a relationship
• And in the real-world private ownership is not monolithic but A
complex set of legal relations in which individual are
interdependent
The exclusionary ownership model
• Modified Blackstone's thinking retains its power
• Exclusive possession is a key characteristic of a property interest
The ‘bundle of sticks’ model
• Effort to add complexity to Blackstone’s model
• Ownership is essentially a bundle of rights, powers, duties,
liabilities etc.
• Suggests absolute ownership does exist but it can be unpacked into
component par
• But this is still misleading….
• Rights can proliferate, mutate, disappear
• It assumes there is an essence of ownership which survives even when
lesser interests have been split off
• This is not necessarily true
• A 999 year lease for example
• Village greens
• Indigenous land rights
Models of ownership 2
In the last podcast (podcast 2 of week 15) we considered
Blackstone’s description/explanation of ownership. In this podcast
(podcast 3) we look at Honore’s liberal concept of ownership and
Alternative approaches.
A M. Honore
• ‘Ownership’ in A.G. Guest Oxford Essays in Jurisprudence 1961 p. 107 –
147
• Attempt to articulate what a full liberal concept of ownership is
• Describes this as a 'standard’ concept
• Sees this as a common view within a dominant strand of political
philosophy (liberalism)
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