Paul Kohler

Property Law: Justifications for property rights

Introduction: general and specific justifications In Property Rights: Philosophic Foundations , Lawrence Becker draws a distinction between general justification for property rights (‘why should there ever be any property rights at all?’) and specific justification (‘what sorts of people should own what sorts of things and under what conditions?’). In general, we consider general justification in this chapter and specific justification in Chapter 4. However, it is not possible to keep the two wholly separate. If you take an economists view of property, the question of general justification is viewed as a question of the functions that property rights perform. This, however, quickly develops into arguments about what type of property ownership (private, communal or state ownership) best fulfils these functions. This inevitably dictates, to some extent at least, who should have what sorts of interest in what sorts of thing. We deal with both issues in section 3.2 of this chapter. John Locke approaches the question of general justification from a different angle. In Private Ownership , James Grunebaum points out that property ‘rights’ necessarily entail exclusion, and in Chapter 2 we see that this is what marks limited access communal property and private property off from no-property and open access communal property. If no-property or open access communal property is reduced either to private ownership or to limited access communal property this necessarily results in a curtailment of everyone elses privilege or liberty to use that resource.

Property Law: Fragmentation of ownership

Introduction One of the distinctive features of English property law is that it can accommodate a wide range of property interests subsisting in the same thing at the same time, each held by a different person. As we pointed out in Chapter 6, in our system property is not synonymous with ownership. The rights and obligations which Honore described as the attributes of ‘the full liberal concept of ownership’ need not all be held by the same person at the same time. They may be shared between and distributed among any number of different people in a number of different ways. However, this fragmentation of ownership is highly systematised. While an owner can by contract give any person a personal right to exercise any of his ownership-type rights and obligations in any way, for any purpose and for any length of time, there are only strictly limited ways in which ownership-type rights can be subdivided and redistributed so as to leave each right holder or group of holders with a distinct property interest, as opposed to merely personal rights against the grantor. This results in a formalised structure of interdependent property interests, which is what we will be examining in this chapter. In Chapter 9, we then look at the gateways to this structure by considering why it is regulated in the way that it is – i.e. why we limit the range of property interests recognised in our system in the way that we do – and when and how the structure can be modified so as to give proprietary status to novel rights, or to novel regroupings of established rights.

Property Law: Leases and bailment

Introduction As we saw in Chapter 7, the essential similarity between leases and bailments is that, in both cases, possession becomes vested in a non-owner for a limited period. If the thing in question is land, the interest created is a lease, and if it is a chattel the interest created is a bailment. However, as we see in this chapter, the differences between leases and bailments are much greater than the similarities. Although the common law originally considered each to be part of the law of personal property, they have very different historical roots and have developed along separate lines so that, even now, there is almost no resemblance between the two legal institutions. This causes some difficulty in our legal system. A lease of land is a sophisticated but somewhat inflexible institution, not easily adjustable to meet changing social and commercial expectations (see, for example, Prudential Assurance v. London Residuary Body [1992] 2 AC 386, discussed below), and this can limit its usefulness. On the other hand, it is a clearly defined property interest which is relatively easy to protect and enforce against third parties, and it would be very useful if a similar interest could be created in goods, particularly commercially tradable ones like aircraft, works of art or computer equipment. However, although bailments of such goods are often called leases, they remain in law bailments, and it is very doubtful whether even the most careful drafting can give a bailee of goods the same rights and protection as a lessee of land.

Property Law: Personal and proprietary interests

Characteristics of proprietary interests In this chapter, we outline the distinctive features of property interests and how they differ from non-proprietary interests in things. Most of these points come up again in other chapters (some of them in more detail): the object of this chapter is to draw together some recurrent themes. General enforceability We saw in Chapter 2 that the essential characteristic that distinguishes proprietary interests in things from non-proprietary interests is their range of enforceability. A non-proprietary interest is essentially bilateral: generally only one other person is under a duty correlative to the right held by the right holder. A proprietary interest, on the other hand, is generally enforceable: if I hold a property right, everyone in the world (or, in the case of some types of right, everyone in the world except a privileged class) has a correlative duty. The classic illustration of the general enforceability principle is provided by the decision in Hill v. Tupper , extracted below, where the court held that, where a canal company which had (among its other rights in the canal) an exclusive right to put pleasure boats for hire on the canal, transferred that right to Hill, Hill became entitled to prevent the canal company from also putting boats on the canal for hire, but was not entitled to prevent Tupper, a stranger, from doing so.