P1.1 What is Property
Colour coding:
Bolded blue: Case name + (Year)
Bolded red: Legislation + Year
Lecture 1: What is property?
Property is a vague & flexible concept, which can change according to the law's desire to privatise things and/or to
redefine the meaning of possession.
Macfarlane's definition:
• Land is a subset of property
• Permanent, does not wear out
• Enduring utility
• Unique, physical location
• Finite resource
• Special type of property with special rights
Bundle of rights theory: it is an infinitely flexible set of rights enforceable against the world
• Rights in rem:
◦ Right-holder has a set of fundamentally similar rights against other people & the world
◦ E.g. buy & sell, exclude, use, share, destroy, loan
• Rights in personam:
◦ Right-holder has certain rights against specific people
◦ E.g. a contract
Flaws in this theory:
• Misses the physical aspect of property
• Does not address hierarchy of rights (no answer for cases of competing claims)
• Misses the unifying concept of property
• Minimises the importance of material aspect of property
• Presents a bundle of rights that is difficult to distinguish from other rights in law
A right to exclude/duty to avoid theory:
• Exclusion is what sets property apart
• More solid concept than bundle of rights
• Non-owners may not trespass, take, handle, damage, or destroy the property
• Property is about control over access
• Not only owner exclude the world, the world also has duty to exclude itself from the property
• Anything non-excludable (e.g. spectacle/view) cannot be categorised as property
• 3 categories of non-excludable resources which are therefore not property:
◦ Physical non-excludability, e.g. race course/parks, light from a lighthouse
◦ Legal non-excludability, e.g. non-copyrighted products, non-patents can be freely copied
◦ Moral non-excludability, e.g. Aboriginal people's language is protected from government's change? (Davis v
Commonwealth)
• Conclusion: commodities are propertised when the government decides that access to them should be controlled
(politics concept)
What does property do?
• Jeremy Bentham: property is created by law, exchange only exists based on expectable rights
• John Locke's moral definition: property exists naturally and occurs to labourers on land, government is only
responsible for its preservation
• Joseph Pierre Proudhon: property is theft, property is a commons, assertion of ownership = violence, quite
Marxist/socialist idea
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, • Conclusion: property is not necessarily tangible, very flexible/malleable, highly political concept
How can commodities be propertised?
1. Do I own my body?
Answer: no property in a human body/corpse - recent idea from 19th century, did not exist during feudalism & slave
trades.
a. Modern Slavery Act 2015
b. Abolition Act 1804
c. R v Kelly (1998)
d. Human Tissue Act 2004
e. Justice Rose: human body parts are capable of being property if they have a use/significance besides mere
existence
2. Can skin colour be property? (whiteness = access to privilege, right to exclude)
Answer: American law has recognised a property interest in whiteness.
3. Do I own my thoughts?
Answer: IP is only legally protected by patents, copyrights, trademarks, etc.
Conclusion: property is
• An abstract right, its uniqueness drawn from the power to exclude
• Linked to politics & social factors
• The commodities that the state determines to be acceptably private (politics)
• Not fixed: commodities can be propertised through legal advancements
• Conditions of non-excludability have physical, legal, moral dimensions
Lecture 2: Defining land
Hereditaments:
• Any item of property that can be inherited
• Defined by statute as any real property on which an intestacy occurs
• Corporeal: relating to material things, e.g. land, buildings
• Incorporeal: no physical existence, e.g. right of way that is enforceable after ownership changes
Personal property (personalty) can be divided into:
• Chose in possession: can be physically possessed & transferred by delivery
• Chose in action/intangible property: cannot be physically possessed, but can be transferred by assignment, e.g. IP,
right of action against a debtor
Property can also be categorised based on owner's status:
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, • Private: individual ownership (main subject of English property law)
• State property: can be allocated to people based on democratic mechanisms, e.g. council housing
• Common property: individuals have the right to use, but no right to exclude, e.g. stadium, parks
• Communal property: a group has the right to exclude others, but the property is held between members of the
group according to their customs
Statutory definitions:
1. Law of Property Act 1925: land = both its material presence & abstract rights that attach to it
2. Land Registration Act 2002: land = buildings + structures + water-covered land + mines/minerals
Five dimensions of land:
• 1-2: length & breadth (collectively = area)
• 3: above & below
• 4: time
• 5: equity (English concept, legal =/= beneficial ownership, makes possible device of Trust)
Dimension 3
• air above: Civil Aviation Act 1982
◦ Limits rights to take action to defend vertical boundaries through actions for trespass & nuisance
◦ You can't just attack any aircraft above your ground
◦ Air above a certain height is common property
◦ Balance property right & common right to use an airspace
• ground below:
◦ Unmined resources belong to the Crown and form part of the Crown Estate
◦ Petroleum Act 1998: Crown has exclusive right to search & bore for petroleum, oil, natural gas
◦ Coal Industry Act 1994: coal is vested in the Coal Authority
Utility model vs. doctrinal model?
Fixtures and fittings:
• Important because value of land can increase/decrease depending on what's attached to it
• Fixtures:
◦ Become permanently annexed to the land
◦ Cannot be severed unless the freeholder chooses to,
◦ In essence becomes the land
• Chattels: remain in personal ownership, do not pass with land ownership
• Question: how to determine what is a fixture (land property) vs. chattel (personal property)?
Two-stage Holland v Hodgson (1872) test to determine if something is a fixture:
• Degree of annexation: how firmly is it physically attached to the land
◦ If not fixed/insubstantially fixed, burden of proof shifts to owner to prove it is a chattel
• Purpose of annexation: why is it attached
◦ Determined objectively by courts
◦ Subtly supersedes degree of annexation, because prima facie evidence is rebuttable
• Lots of presumptions, burden of proof falls on the person who wants to rebut them
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Learning outcomes
Discuss in an informed manner the definitions of property and land and conceptualise property within law.
Understand the nature of property rights and the difference between property and personal rights.
Understand the particular features of land.
Apply the law relating to fixtures and chattels to problem scenarios.
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