This is a 36-page document containing everything needed for the first term of Property or Land Law LLB at University. The notes were written using lecture notes, all relevant readings, and study of large amounts of case law. It is incredibly detailed and contains easy to understand descriptions of ...
Lectures 3 and 4 (Week 3) – Proprietary rights in land
1. Locke
- Mixing labour with earth (cultivation of land)
- Not using more than you need, and using what you have effectively (spoilation provision)
- Leaving enough for others (sufficiency provision)
* person has property in the land rather than the land itself being property
2. Irreducible features in property
- Property = relationship of social and legal control between person and resource (rather than owning a piece of
land)
- Presumptive right to exclude
• Nozickian vs Tullian versions of Lockian theory:
- N = private property is the paramount moral principle of ownership
- T = moral imperative to share with the needy
• Known as ‘property absolutism’ (civil law concept of dominium – outright ownership of a resource)
• Anchor Brewhouse Developments Ltd v Berkley House Ltd
- Over sailing cranes held as trespass
- Confirms view of property absolutism reading of Locke’s ideas
- However, judge takes absolutism reluctantly, would be better if public interest could sometimes
prevail (Wilkinson, McKendrick)
- Right to prioritise resource values
• Choice whether to sell resource or retain it (privilege of lucrative disposal, privilege of gift, privilege of
recreational appreciation)
• Just in terms of Locke if it is sold: not just if they keep it but do not use it.
• Rhone v Stephens
- Restrictive vs positive covenant: owner did not upkeep the roof, but could not be made to repair
it (positive covenant)
- Ultimately if not a restrictive covenant, the owner has a right to do with the property as he
wishes so long as it does not interfere with the rights of others or infringe restrictions
- Immunity from summary cancellation or extinguishment
• Quintessential Lockian idea, origination of the ‘right to enjoy possessions’ clause of ECHR
• Saeed v Plustrade Ltd
- Lessor could not remove the right of the lessee to park his car
• Magna Carta – property rights generally stable
3. Control (private vs public elements)
Private Law Sticks Vs Public law sticks
• Some represent rights (benefits)
• Some represent obligations/liabilities (burdens)
• Private law and public law sticks together = the extent of their holder’s property in (control over) the land
and the neighbouring land
*Restrictive Covenant: the right to stop activities on neighbouring land
*Easement: the right to access neighbouring land for specific purposes
Private law sticks in the bundle
• The estate in land that a person holds, plus the interests benefitting the estate
• Without the interests burdening the estate
• The sticks depict the degree of control that a person has over a specific piece of land and the land that
neighbours it
• Private law benefits = blue
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