WHAT DOES PROPERTY MEAN?/ FOUNDATIONS OF PROPERTY LECTURE NOTES
It lays the foundations for two modules you’ll go on to study:
• Land Law
• Equity and Trusts Law
The course also introduces you to some broader questions about property, such as:
• What is property?
• What does property do?
• What is distinct about property law?
• Are there alternative ways to understand ownership?
What limits are there to ownership?
It builds on introduction to obligations – property is a different way for people to relate to each other.
Not contractual or tortious.
To this end we’ll cover a range of topics, focusing primarily on examples of property laws found in land
law and equity and trusts law, including:
What is Property and why do we have property law?
- Possession and ownership
- Land law examples of property rules:
o Leases and Licences
o Town & Village Greens
o Easements
- Trusts law & property: co-ownership
- Indigenous land rights
- Revisiting the meaning of property in law
- Exploring the relationship between property and power
What do we mean by property?
- To this end we’ll cover a range of topics, focusing primarily on examples of property laws
found in land law and equity and trusts law, including:
- What is Property and why do we have property law?
- Possession and ownership
- Land law examples of property rules:
- Leases and Licences
- Town & Village Greens
- Easements
- Trusts law & property: co-ownership
- Indigenous land rights
- Revisiting the meaning of property in law
- Exploring the relationship between property and power
- what are the foundational principles of the idea of property, and the law of property? What
arguments have people had about those principles? A law degree – about understanding the
debates around the rules as well as the rules themselves, and also what the rules are not
doing.
- So, start with what do we mean by property.
o Useful to start with what property does – to see why it is important, and to see links
with obligations.
o Then will examine some key themes:
o We focus heavily in the course on land and on equity, as these are core subjects you
have to study, but concepts, ideas, questions, underpin other property issues – in
environmental law, in intellectual property. Can think of land as series of case studies
of approaches to property, raising questions about property.
,What Property does, vs other law
- There are some key differences between property and other law.-
o Enforceability – eg difference between a tenant and a lodger
If you are a tenant, and the landlord sells the house or they die and it is
passed on, you are still a tenant. Your right to enter that property is held
against everyone. If you just have a contract, it doesn’t. Say you agreed with
a person in Canterbury that you would pay them to stay in their spare room.
We’ll come to talk about this, but just for now, say this means you are a
licence holder, a licencee, not a tenant, because you are sharing possession
with the landlord. Say you pay upfront for the term, but just before the start of
term, you discover they have taken the money, sold the house, and there is a
new owner. Your remedy is in contract law – so you could sue for breach of
contract against the old landlord. But you have no legal relationship with the
new owner. This is simplified, but the basic point is key.
o Alienability
ability to sell, dispose of it. Usually the case with property. Contrast with
contract. Can’t sell, for example, a contract. Again – say you are a tenant,
the general principle is that you can pass your tenancy onto someone else
and the landlord will be bound by that. It is possible for them to insert a
clause when you agree the tenancy which gives them some control over this,
and this is common, but if they didn’t, then general rule is you can pass it on.
Contract is the opposite – if you are the lodger, general rule is, if you sell it
on, new owner won’t be bound unless they agree to take it on.
o Transmissibility
Continues to exist in the same form when is passed on.
Clarke notes not all rights alienable and transmissible, but can say they
commonly are – eg right to transfer land.
o Insolvency
go to the top of the queue. Eg difference between a mortgage and an
unsecured loan.
Why have property rules?
- ‘The law of property is about things, and our relation with one another in respect of the use and
control of things.’
o Jeremy Waldron, ‘Property Law’ p3
o Property is about our relationship with each other in relation to things.
o Not about my relationship with things. But the fundamental point is that it's about our rule,
about relationships. but is about relationships with each other in relation to things.
o E.g. what does it mean to say ‘this is my bottle of water?’
- So, when we’re discussing what property rules should look like, we’re really discussing how we ought
to relate to one another.
- Property is therefore not simply about our relationships with things, but about our relationships with
each other in relation to things. Property rights exist to solve a social difficulty – a difficult question of
how we should relate to each other. And this is true of rights in general: rights are always against
- other people. They don’t exist in a vacuum; they are inherently about you and me.
- Thus, when we’re discussing what property rules should look like, we’re really discussing how we
ought to relate to one another.
- So this means that when you are thinking about the rules of property we go on to discuss in this
module you can ask the question – is this what relationships between people should look like? Is that
how I would want to relate to my neighbour? And so on.
,What is property? The classic account
- So in the classic account, what property does and what it is, is it's about relationships. But it's
specifically about the ability to control something and to exclude others from that thing.
o About relationships, specifically, the ability to exclude & control
- Important for: freedom, security, prosperity, efficiency
o And the arguments for this classic account of property is that it underpins key values around
freedom and autonomy of individuals, their security. It underpins prosperity and economic
growth and promotes efficiency.
o And that's particularly private property is underpinned by those kinds of ideas.
- But… And what we're going to be doing in this course is trying to understand that account, the ways in
which that is true potentially, but also the ways in which it may be more complicated than that.
o Clarke – it is more complicated than this. Assumes absolute ownership by single private
individual for their own benefit.
o What about owners of property who are not a single private individual? What about limits
on absolute ownership; where there are others with interests in that thing? Do these claimed
benefits go hand in hand with property? Questions we will be examining through the
course..
o And – where it is absolute private ownership by an individual, need to justify it -
Why private property?
- ‘Private property involves a pledge by society that it will continue to use its moral and
physical authority to uphold the rights of owners, even against those who have no
employment, no food to eat, no home to go to, no land to stand on from which they are not
at any time liable to be evicted. That legal authority and social force are held hostage in this
way to an arbitrarily determined distribution of individual control over land and other
resources is sufficient to raise a presumption against private property.’
o Jeremy Waldron, ‘Property Law’ p9
- And why even have private property in the first place?
o Waldron argues that if we are going to have an institution called ‘private property’
which is given state force
that is, a system of allocating resources on the basis of whatever particular
individuals, who may have done nothing even to ‘earn’ (whatever that may
mean) their control over a resource, happen to want, and which entails
society using its force against the unemployed, the hungry, the homeless,
then we have to start not by assuming that private property ‘must be
justified’, but by admitting that there is a presumption against private
property.
o If we are going to structure our relationships with each other so that you can be
excluded from access to resources, and we, the rest of society, will agree to that
exclusion and give it all the force it can be given (that is, it is state-backed), to ensure
that if you are poor and cannot afford to live in a house then you will not, then surely
that requires some kind of justification.
o To reiterate, if I can accumulate several houses, and exclude homeless people from
using them for shelter, and in fact that the State will back you up in your decision to
exclude, then surely that needs to be justified in some way. He doesn’t mean that it’s
not justified or can’t be justified. but rather that it requires justification and that
there should be a presumption against it.
, o And all of this is ignored if we think of property as just being relationships between
people and things, instead of being about relationships between people.
- So, again, why do we have private property? Question to consider in the course.
o So it raises the question of why we have private property.
o One answer given in the classic account is scarcity
Why have property rules? Because of scarcity
Abundant resources Scarce resources
Resources of which there is more than enough to
satisfy the needs and wants of the community, and Resources which needed or wanted by the
which are easily accessed by members of that community, but which are limited in their availability.
community.
eg sunshine, air. eg books, coal, land.
- One suggestion is that property rules exist to solve the problem of resource scarcity.
- One answer to why we have such rules, is because some resources are limited. that there are
there's only so much to go around. And you may have abundant resources which will come
to in a moment, might not it might be that you don't need property rights, but when you
have scarce resources, there will be contestation over those resources. And so it's necessary
to have some property regime, some rules to set out how those things are going to be
distributed.
- In this context, ‘resource’ just means stuff/things in general.
- So whilst we don’t have to regulate the availability of abundant resources, we do have to
regulate the availability of scarce resources, and this is what property rules are all about.
- One answer to why we have such rules, is because some resources are limited.
- In this context, ‘resource’ just means stuff/things in general.
- So whilst we don’t have to regulate the availability of abundant resources, we do have to
regulate the availability of scarce resources, and this is what property rules are all about.
- ‘Following David Hume, we may say that property rules are needed for any class of things
about which there are likely to be conflicts concerning access, use and control, particularly
things which are scarce relative to the demands that human desires are likely to place upon
them.’
o Jeremy Waldron, ‘Property Law’
- Scarcity is important, but might want to have property rights even if things are not scarce.
o Argument is that, where resources are abundant, we don’t need to worry about how
to allocate those resources: everyone has equal and ready access to them.
o Where resources are scarce, we need to consider how to enable planning, co-
operation, production and exchange in relation to them without resorting to ‘black
markets’ where nothing can be counted upon. but rather gives the possibility of the
rule of law and some certainty.
o Emphasis on conflict here – law is about relationships with people – about how we
relate to one another. Property rules are there because without them we’d be in
conflict with one another about access to stuff.
It lays the foundations for two modules you’ll go on to study:
• Land Law
• Equity and Trusts Law
The course also introduces you to some broader questions about property, such as:
• What is property?
• What does property do?
• What is distinct about property law?
• Are there alternative ways to understand ownership?
What limits are there to ownership?
It builds on introduction to obligations – property is a different way for people to relate to each other.
Not contractual or tortious.
To this end we’ll cover a range of topics, focusing primarily on examples of property laws found in land
law and equity and trusts law, including:
What is Property and why do we have property law?
- Possession and ownership
- Land law examples of property rules:
o Leases and Licences
o Town & Village Greens
o Easements
- Trusts law & property: co-ownership
- Indigenous land rights
- Revisiting the meaning of property in law
- Exploring the relationship between property and power
What do we mean by property?
- To this end we’ll cover a range of topics, focusing primarily on examples of property laws
found in land law and equity and trusts law, including:
- What is Property and why do we have property law?
- Possession and ownership
- Land law examples of property rules:
- Leases and Licences
- Town & Village Greens
- Easements
- Trusts law & property: co-ownership
- Indigenous land rights
- Revisiting the meaning of property in law
- Exploring the relationship between property and power
- what are the foundational principles of the idea of property, and the law of property? What
arguments have people had about those principles? A law degree – about understanding the
debates around the rules as well as the rules themselves, and also what the rules are not
doing.
- So, start with what do we mean by property.
o Useful to start with what property does – to see why it is important, and to see links
with obligations.
o Then will examine some key themes:
o We focus heavily in the course on land and on equity, as these are core subjects you
have to study, but concepts, ideas, questions, underpin other property issues – in
environmental law, in intellectual property. Can think of land as series of case studies
of approaches to property, raising questions about property.
,What Property does, vs other law
- There are some key differences between property and other law.-
o Enforceability – eg difference between a tenant and a lodger
If you are a tenant, and the landlord sells the house or they die and it is
passed on, you are still a tenant. Your right to enter that property is held
against everyone. If you just have a contract, it doesn’t. Say you agreed with
a person in Canterbury that you would pay them to stay in their spare room.
We’ll come to talk about this, but just for now, say this means you are a
licence holder, a licencee, not a tenant, because you are sharing possession
with the landlord. Say you pay upfront for the term, but just before the start of
term, you discover they have taken the money, sold the house, and there is a
new owner. Your remedy is in contract law – so you could sue for breach of
contract against the old landlord. But you have no legal relationship with the
new owner. This is simplified, but the basic point is key.
o Alienability
ability to sell, dispose of it. Usually the case with property. Contrast with
contract. Can’t sell, for example, a contract. Again – say you are a tenant,
the general principle is that you can pass your tenancy onto someone else
and the landlord will be bound by that. It is possible for them to insert a
clause when you agree the tenancy which gives them some control over this,
and this is common, but if they didn’t, then general rule is you can pass it on.
Contract is the opposite – if you are the lodger, general rule is, if you sell it
on, new owner won’t be bound unless they agree to take it on.
o Transmissibility
Continues to exist in the same form when is passed on.
Clarke notes not all rights alienable and transmissible, but can say they
commonly are – eg right to transfer land.
o Insolvency
go to the top of the queue. Eg difference between a mortgage and an
unsecured loan.
Why have property rules?
- ‘The law of property is about things, and our relation with one another in respect of the use and
control of things.’
o Jeremy Waldron, ‘Property Law’ p3
o Property is about our relationship with each other in relation to things.
o Not about my relationship with things. But the fundamental point is that it's about our rule,
about relationships. but is about relationships with each other in relation to things.
o E.g. what does it mean to say ‘this is my bottle of water?’
- So, when we’re discussing what property rules should look like, we’re really discussing how we ought
to relate to one another.
- Property is therefore not simply about our relationships with things, but about our relationships with
each other in relation to things. Property rights exist to solve a social difficulty – a difficult question of
how we should relate to each other. And this is true of rights in general: rights are always against
- other people. They don’t exist in a vacuum; they are inherently about you and me.
- Thus, when we’re discussing what property rules should look like, we’re really discussing how we
ought to relate to one another.
- So this means that when you are thinking about the rules of property we go on to discuss in this
module you can ask the question – is this what relationships between people should look like? Is that
how I would want to relate to my neighbour? And so on.
,What is property? The classic account
- So in the classic account, what property does and what it is, is it's about relationships. But it's
specifically about the ability to control something and to exclude others from that thing.
o About relationships, specifically, the ability to exclude & control
- Important for: freedom, security, prosperity, efficiency
o And the arguments for this classic account of property is that it underpins key values around
freedom and autonomy of individuals, their security. It underpins prosperity and economic
growth and promotes efficiency.
o And that's particularly private property is underpinned by those kinds of ideas.
- But… And what we're going to be doing in this course is trying to understand that account, the ways in
which that is true potentially, but also the ways in which it may be more complicated than that.
o Clarke – it is more complicated than this. Assumes absolute ownership by single private
individual for their own benefit.
o What about owners of property who are not a single private individual? What about limits
on absolute ownership; where there are others with interests in that thing? Do these claimed
benefits go hand in hand with property? Questions we will be examining through the
course..
o And – where it is absolute private ownership by an individual, need to justify it -
Why private property?
- ‘Private property involves a pledge by society that it will continue to use its moral and
physical authority to uphold the rights of owners, even against those who have no
employment, no food to eat, no home to go to, no land to stand on from which they are not
at any time liable to be evicted. That legal authority and social force are held hostage in this
way to an arbitrarily determined distribution of individual control over land and other
resources is sufficient to raise a presumption against private property.’
o Jeremy Waldron, ‘Property Law’ p9
- And why even have private property in the first place?
o Waldron argues that if we are going to have an institution called ‘private property’
which is given state force
that is, a system of allocating resources on the basis of whatever particular
individuals, who may have done nothing even to ‘earn’ (whatever that may
mean) their control over a resource, happen to want, and which entails
society using its force against the unemployed, the hungry, the homeless,
then we have to start not by assuming that private property ‘must be
justified’, but by admitting that there is a presumption against private
property.
o If we are going to structure our relationships with each other so that you can be
excluded from access to resources, and we, the rest of society, will agree to that
exclusion and give it all the force it can be given (that is, it is state-backed), to ensure
that if you are poor and cannot afford to live in a house then you will not, then surely
that requires some kind of justification.
o To reiterate, if I can accumulate several houses, and exclude homeless people from
using them for shelter, and in fact that the State will back you up in your decision to
exclude, then surely that needs to be justified in some way. He doesn’t mean that it’s
not justified or can’t be justified. but rather that it requires justification and that
there should be a presumption against it.
, o And all of this is ignored if we think of property as just being relationships between
people and things, instead of being about relationships between people.
- So, again, why do we have private property? Question to consider in the course.
o So it raises the question of why we have private property.
o One answer given in the classic account is scarcity
Why have property rules? Because of scarcity
Abundant resources Scarce resources
Resources of which there is more than enough to
satisfy the needs and wants of the community, and Resources which needed or wanted by the
which are easily accessed by members of that community, but which are limited in their availability.
community.
eg sunshine, air. eg books, coal, land.
- One suggestion is that property rules exist to solve the problem of resource scarcity.
- One answer to why we have such rules, is because some resources are limited. that there are
there's only so much to go around. And you may have abundant resources which will come
to in a moment, might not it might be that you don't need property rights, but when you
have scarce resources, there will be contestation over those resources. And so it's necessary
to have some property regime, some rules to set out how those things are going to be
distributed.
- In this context, ‘resource’ just means stuff/things in general.
- So whilst we don’t have to regulate the availability of abundant resources, we do have to
regulate the availability of scarce resources, and this is what property rules are all about.
- One answer to why we have such rules, is because some resources are limited.
- In this context, ‘resource’ just means stuff/things in general.
- So whilst we don’t have to regulate the availability of abundant resources, we do have to
regulate the availability of scarce resources, and this is what property rules are all about.
- ‘Following David Hume, we may say that property rules are needed for any class of things
about which there are likely to be conflicts concerning access, use and control, particularly
things which are scarce relative to the demands that human desires are likely to place upon
them.’
o Jeremy Waldron, ‘Property Law’
- Scarcity is important, but might want to have property rights even if things are not scarce.
o Argument is that, where resources are abundant, we don’t need to worry about how
to allocate those resources: everyone has equal and ready access to them.
o Where resources are scarce, we need to consider how to enable planning, co-
operation, production and exchange in relation to them without resorting to ‘black
markets’ where nothing can be counted upon. but rather gives the possibility of the
rule of law and some certainty.
o Emphasis on conflict here – law is about relationships with people – about how we
relate to one another. Property rules are there because without them we’d be in
conflict with one another about access to stuff.
