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Property Law - Class Notes with Mark Hetch
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DTN 723 – Biens/Property LawUnit I: An Introduction to the Concept of Property Law
1. Property relationships (Mossman, pp. 1-20)
a. The “holder: rights: res: enforceability” paradigm (Victoria Park
Racing and Recreation Grounds Co. Ltd. v. Taylor*)
Property is not legally a thing (not a person, nor a place, nor a thing). The study of
property law is the study of relationships. Property is the study of the relationship you
have with your things, the relationship others have with your things, and the relationship
you have with those other people. Property law is meant to uncover those relationships
and, where there is a conflict with those relationships, resolve those conflicts.
Res is a latin term for “thing”, which has come to represent anything that has a property
interest attached to it. The word “thing” is a noun, but there are res that are not physical
objects such as IP, FB friends, etc.
Property interest: at some point, either a court or the legislature has decided that
that thing, that res is legally considered property.
o For example, there was a time where children were considered a res
(objects of property relationships).
o The concept of property is dynamic. Ideas about property reflect the needs
of society (or at least some of its members), and thus these ideas may
change over time.
Historically, property interests were community held. They were held by an entire
community. Reservation are property that is community held. More and more,
property is held individually. The problem with property however is that if one
has a right to cumulate however property as he wants, somebody will be missing
out.
Property is not a thing but rather a relationship which one has with a thing (res).
(Mossman, p. 1)
“Who Owns Your Facebook Friends?”
The court had to figured out whether Facebook friends are subject to a property
interest, whether Facebook friends were a res.
Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937 – Australia)
Facts
Descriptions of races taking place on the plaintiff's racecourse were
contemporaneously broadcast without the plaintiff's permission through a wireless
station by an observer stationed on a platform erected on adjoining land. As a
result of such broadcasting, attendances at the racecourse decreased, with
consequent loss to the plaintiff. The plaintiff claimed, against the broadcasting
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, company, the observer, and the owner of the adjoining land, an injunction to
restrain such broadcasting as amounting to a nuisance, an unnatural use of such
adjoining land and an interference with the plaintiff's proprietary right in the
spectacle conducted on his land.
Issue
Are there property rights in a spectacle?
Held
There can be no property rights in a spectacle.
“In this case, however, in my opinion, the defendants have not interfered in any
way with the use and enjoyment of the plaintiff's land. The effect of their actions
is to make the business carried on by the plaintiff less profitable, and they do so
by providing a competitive entertainment.” (p. 15)
“The defendant does no wrong to the plaintiff by looking at what takes place on
the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to
other persons, to as wide an audience as he can obtain, what takes place on the
plaintiff's ground. The court has not been referred to any principle of law which
prevents any man from describing anything which he sees anywhere if he does
not make defamatory statements, infringe the law as to offensive language, etc.,
break a contract, or wrongfully reveal confidential information. The defendants
did not infringe the law in any of these respects.” (p. 16)
“With regard to the question of privacy, no doubt the owner of a house would
prefer that a neighbour should not have the right of looking into his windows or
yard, but neither this court nor a court of law will interfere on the mere ground of
invasion of privacy.” (p. 18)
“A ‘spectacle’ cannot be ‘owned’ in any ordinary sense of that word.” (p. 18)
Model of columns helpful to identify property (relationships):
Who are the What rights are they What res are they Issue around
holders? advancing/claiming? fighting for? enforceability
Example with a lotto ticket:
Holders Rights Res Enforceability
- The person who
bought the
ticket - Ownership
- The person who rights - Jackpot
Who has the better
physically holds - Possessory - Numbers
claim?
the ticks rights - Lotto ticket
- The person who - Title rights
picked the
numbers
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, 2. Categories of property and property interests
Those categories are a result from the writ system.
a. Real versus personal property
“Real property” generally refers to land. This is historically linked to the old writ system.
In rem action: one is technically suing the actual res (the item itself) to get it back. In
rem action became known as a “real action” and was used to get back land (one was not
satisfied just getting money for the land and wanted it back).
In property law, “real” means “in rem”.
Real property refers to “lands, tenements, and hereditaments; in other words,
land and buildings erected upon it. Generally, all interests in land are real
property, except for leaseholds for a term of years, which are personalty or
chattels.
The difference between real property and personal property is that real
property (immovable property) can always be recovered by a real action (action in
rem) and personal property (movable property, e.g., chattels) can be recovered by
an action in personam.” (Barron's Canadian Law Dictionary)
In personom action: to get damages from someone – to sue someone personally. This
became known as personal property. In personom actions became known as personal
actions, which became known as personal property.
Back in the old days, the item that people lost the most and accepted damages was
cattle (cows, sheep, etc.). Cattle became known in law as chattel. “Chattel” was
historically the world used instead of a res.
A personal action is “an action brought by an injured party for the recovery of
property or for damages done to his or her person or property” (Barron's Canadian
Law Dictionary).
Personal property is “the class of property that deals with the right in chattels”.
(Barron's Canadian Law Dictionary).
Real Property Personal Property
Immovable property (land) Movable property (chattels)
Recovered by an in rem action (real
Recovered by an in personom action
action)
- To sue a person for damages
- To sue the res to get it back
b. Tangible versus intangible (International News Service v. Associated
Press*)
International News Service v. Associated Press (1918 – USA)
Issue
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, Is the news subject to a property interest? Is it a res?
Held
There is no property in the news.
o News is not copyrightable.
Brandeis, J., dissenting
“An essential element of individual property is the legal right to exclude others
from enjoying it. If the property is private, the right of exclusion may be absolute;
if the property is affected with a public interest, the right of exclusion is qualified.
But the fact that a product of the mind has cost its producer money and labor, and
has a value for which others are willing to pay, is not sufficient to ensure to it this
legal attribute of property. The general rule of law is, that the noblest of human
productions – knowledge, truths ascertained, conceptions, and ideas – become,
after voluntary communication to others, free as the air to common use. Upon
these incorporeal productions the attribute of property is continued after such
communication only in certain classes of cases where public policy has seemed to
demand it. These exceptions are confined to productions which, in some degree,
involve creation, invention, or discovery. But by no means all such are endowed
with this attribute of property.” (p. 36)
“The knowledge for which protection is sought in the case at bar is not of a kind
upon which the law has heretofore conferred the attributes of property; nor is the
manner of its acquisition or use nor the purpose to which it is applied, such as has
heretofore been recognized as entitling a plaintiff to relief.” (p. 37)
“Courts are ill-equipped to make the investigations which should precede a
determination of the limitations which should be set upon any property right in
news or of the circumstances under which news gathered by a private agency
should be deemed affected with a public interest.”
o Brandeis, J considered that the legislature was better suited to the task of
finding an appropriate solution in this case. (Mossman, p. 19)
Historically, property was only tangible. This changed with the Norman conquest. Two
doctrines were invented for the Norman king to have a right for things he never touched:
the doctrine of estate and the doctrine of tenure. This started a trend of being able to
claim a property interest (res) that one has never actually touched.
c. Legal versus equitable
Courts of common law are strict courts, with a formal process, and which follow to letter
of the law.
By opposition courts of equity concentrate on what would be fair in the circumstances.
Equity refers primarily to justice or fairness. Courts may use their discretionary power to
do justice in particular cases where strict rules of common law would cause hardship.
Originally, equity mitigated the rigours of the early common law courts which were
committed to a strict adherence to writs and forms of action.
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