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Introduction To Property Law Notes

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This is an extract of our Introduction To Property Law document, which we sell as part of our Property Law Notes collection written by the top tier of Victoria University Of Wellington students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

LAWS 301 Test 1 - compiled notes Topics

Test 1 - Compiled notes:

1. What is property?
Definition: An object over which an individual can exert control, and in return, which gives him rights in relation to its use (against the world) To have property in something, need:
actual control over property
common (social) recognition of your control over that property
something we have complete ownership over
(so) something we can exert power over Purpose:
means of dividing scarce resources
right to access resources (common law property says all have access, no exclusion but no incentives for most efficient use)
exclusive control over resources Effect:
gives us both ownership and lesser rights (owner can divide property right lesser rights)
defines our relationships with objects defines our relationship with people
welfare, happiness, utility (means to an end; e.g. creation of g/s, use and enjoyment)
power (rights against thingsothers depend on your access to themothers under dutyowner c. power)
status (monetary value standing in society)
autonomy (ability to make decisions sans dependence on others) For Property

Against Property

Need property to create incentives and avoid the tragedy of commons (Posner)

Reduces life's function to gaining property and protecting against others/excluding others

"property is the root of all evil and suffering" (Tolstoy) Ensure even resource distribution by ensuring everyone has level of private property for necessities in life (Munzer)

Rousseau :the earth belongs to all men

Property protection is why we enter into society; so no property no reason to remain(?) (Locke)

Distribution can never be equal so there is power for some and helplessness for others

Arguments for and against property:

LAWS 301 Test 1 - compiled notes Topics

NB: the greater the protection states place on property, the more important our right to property becomes
e.g. in USA and Ireland, property is constitutionally protected

LAWS 301 Test 1 - compiled notes Topics

2. Types of property: Property

Personal Property (nonland)

Real Property (interests in land except leaseholds)

Incorporeal heriditaments (property rights over land in another's possession)

Freehold interests (right for indeterminate time)

Corporeal heriditaments (physical things)

Chattel interests (right is for a determinate amount of time)

real property is essentially interests in land which arise from res (the thing)
because when someone did something to this kind of property, P was entitled to get it (thing) back
personal property is essentially other property interests (e.g. chattels etc.)
because in the past, interference with such property meant P was entitled to damages, not the thing itself

3. Property rights:
SO: Rights

In rem (proprietary rights)

Real property

In personam (personal rights)

Personal property

NB: distinction between real/personal property and in rem/in personam is that the former talks about property and the latter about types of right Property rights are different from other rights in that:
property right is a right that the law will uphold against people in general; i.e. in rem right
the whole world OR
everyone except a specified class of exceptions
equitable property rights bind all the world except the good faith purchaser
any other right is:
right in the specific behavious of some person (e.g. right to contract performance)
so one that the law will uphold only against specific person(s); i.e. in personam right

LAWS 301 Test 1 - compiled notes Topics

Thinkers: Waldron

property is a set of rules governing access to and control of material resources

balance right of access with right of exclusion

no exclusion >
Merrill

Exclusion is "the sine qua non [of property right]. Give someone the right to exclude others from a valued resources...and you give them property. Deny someone that exclusory right and they do not have property"

Penner

No need to exclude others from your property Re. property v. personal rights:
"Rights in rem are those rights which bind 'all the world'"
"In contrast, a right in personam is a right in the specific behaviour of some person... bind only specific individuals."

Gray

"property exists not in the consumption of benefits but in control over benefits. Property is...about control over access"

"Property is the powerrelation constituted by..state's endorsement of private claims to regulate the access of strangers to the benefits of particular resources" Blackstone

"There is nothing which so generally strikes the imagination and engages the affections of mankind as property"

Locke

"The preservation of property being the end of government, and that for which men enter...society"

Tolstoy

"property is the root of all evil and suffering"

Demsetz

"in the world of Robinson Crusoe property rights play no role"

Rousseau

property (the earth) belongs to us all

Posner

private property is a required incentive for resource maximisation increased wealth
otherwise we will have the tragedy of the commons

Munzer

"legal relationship with the thing...degree of power that is recognised by law as power permissibly exercised over that thing"

everyone should have private property
to ensure wealth growth

LAWS 301 Test 1 - compiled notes Topics

equal distribution removing loss of autonomy to those who may otherwise be propertyless Clarke and Kohler

Re. property v. personal rights:
the distinction lies in the breadth of enforcement of the rights
property right is a right that the law will uphold against people in general
whole world OR everyone except specified class

Murphy, Roberts and Flessas

In order to have a property right you need:
actual control over property
common (social) recognition of your control
something we have complete ownership over

White v. Chandler

"Next to constitutional rights, property rights are the strongest interests recognised by our law"

LAWS 301 Test 1 - compiled notes Topics

4. Common law concept of property: a. Bundle of rights and ownership: Hohfield's analysis of rights:
"right" refers to a number of distinct jural relationships between persons including:
claim rights of A (correlates to duty of B)
privileges/liberties of A (correlates with noright of B)
power of A (correlates with disability of B)
immunity of A (correlates with disability of B)
right to the land
liberty to do what you will (almost) to your land
power to change your legal relationship to your land (e.g. parcel out lesser rights)
immunity from having your land taken away from you
NB: "right" includes right to giving yourself a noright re the land; but can easily revoke this coz prop. right
the law can change your relationship with the thing Honore's "Ownership" Bundle: Involves the following rights:
Persevere (possess)
Until (use)
Mental (manage)
Inability (income)
Claims (capital)
Stupendous (security)
Triumph (transmissibility)
Against (absence of term)
Desperate (duty to prevent harm to others)
Lawstudent (liability to execution to pay debts)

1. Right to Possess
exclusive physical control of a thing/ OR such control as the nature of the thing admits
the right (claim) to be put in and remain in exclusive control; AND
the claim that others should not without permission, interfere
essence of the right to possess that it is in rem:
BUT doesn't mean owner is entitled to exclude everyone from their property
though, general licence to enter others' property would end institution of landowning as we now know it Remedies:
ejectment, wrongful detention and vidicatio enable P get right back
most of the remedies also available to persons with a right to possess falling short of ownership
some available to mere possessors
in some cases remedies aren't available, e.g. voluntarily parted with possession temporarily (hiring out)

2. Right to use:
owner's personal use and enjoyment of the thing owned (on owner's discretion)
so excludes management and income
fact that certain use limitations are also standard ownership incidents does not detract from its importance
coz standard limitations are precisely defined, while the permissible types of use constitute an open list

3. Right to manage:
right to decide how and by whom the thing owned shall be used

LAWS 301 Test 1 - compiled notes Topics

depends, legally, on a cluster of powers
licensing acts which would be otherwise unlawful
contracting
admit others to one's land
permit others to use one's things
define the limits of such permission
contract effectively re. the use and exploitation of the thing

4. Right to income: Income in the more ordinary sense (fruits, rents, profits) may be thought of as a surrogate of use, a benefit derived from forgoing personal use of a thing and allowing others to use it for rewards.

5. Right to capital:
owner should be able to look forward to remaining owner indefinitely upon choice + solvency
legally immunity from expropriation (transmission of ownership is consensual, except when bankrupt)

6. Right to security:

7. Incident of transmissibility:
unlimited duration (perpetuite) comprises of at least two elements: transmissibility and absence of term
transmissibility is where interest can be transmitted to the holder's successors and so on ad infinitum
more valuable than interest which stops with his death
better price for property in question

8. Incident of absence of term:
it is not certain to determine at a future date (absence of term)
laws usually provide for
determinate interest (to determine at future date/on certain future event occurrence e.g. leases)
indeterminate interests (interests like such as ownership and easements, to which no term is set)
determinable interest (aka future interest)

9. Prohibition of harmful use:

10. Liability for execution: (interest taken away for owner's debt or insolvency; a.k.a. executability Uses of the idea of ownership bundle:
US "takings" jurisprudence: you can't take private property without proper consideration
govt. doesn't have to do away with ALL rights in bundle of rights to constitute encroachment on personal property, doing away with one will suffice Residuary character:
no one entitled to exercise similar rights of the former leaseholder on extinction of lease/easement
BUT law says lapse of interest rights vest in/are exercisable by another, who gets "corresponding rights"
corresponding rights are not the same as rights formerly vested in the holder of the interest.
corresponding rights don't always arise when an interest is determined
when ownership is abandoned + no corresponding right vests in another, thing is res derelict
sometimes ownership abandoned new ownership vests in the state
when interest less than ownership terminates, legal systems always provide for corresponding rights
when easements and bailments terminate, the "owner" can exercise the corresponding rights
A (the owner) will not always get corresponding rights on determination of B's interests in that thing (almost ladder of corresponding rights; lessee's rights go to owner but sublessee's right go to lessee)
necessary to prevent difficulty if series continued

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