Introduction To Property Law Notes
Updated Introduction To Property Law Notes
Property Law
This is a summarized introduction to Property Law with accompanying case briefs on each area.
Topics covered are:
1. The nature of property
2. The bundle of rights and ownership
3. Possession
4. An exploration of intangible property rights (property in ideas
and body parts)
5. Tenure and estate (history, and development in the context of
the Mabo and Ngati Apa decisions)
6. An introduction to nature, purpose and use of formalities in
property law
This will give you...
The following is a more accessible 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:
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:
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
2. Types of property:
Property
Personal Property Real Property
(non-land) (interests in land except leaseholds)
Incorporeal heriditaments Corporeal heriditaments
(property rights over land in another’s possession) (physical things)
Freehold interests Chattel interests
(right for indeterminate time) (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 In personam
(proprietary rights) (personal rights)
Real property 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
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 power-relation 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 - equal distribution removing loss of autonomy to those who may otherwise be property-less |
| 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” |
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...
Buy the full version of these notes or essay plans and more in our Property Law Notes.
Introduction To Property Law
This is a summarized introduction to Property Law with accompanying case briefs on each area.
Topics covered are:
1. The nature of property
2. The bundle of rights and ownership
3. Possession
4. An exploration of intangible property rights (property in ideas
and body parts)
5. Tenure and estate (history, and development in the context of
the Mabo and Ngati Apa decisions)
6. An introduction to nature, purpose and use of formalities in
property law
This will give you...
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