Lectures 3 and 4 (Week 3) – Proprietary rights in land
1. Locke
- Mixing labour with earth (cultivation of land)
- Not using more than you need, and using what you have effectively (spoilation provision)
- Leaving enough for others (sufficiency provision)
* person has property in the land rather than the land itself being property
2. Irreducible features in property
- Property = relationship of social and legal control between person and resource (rather than owning a piece of
land)
- Presumptive right to exclude
• Nozickian vs Tullian versions of Lockian theory:
- N = private property is the paramount moral principle of ownership
- T = moral imperative to share with the needy
• Known as ‘property absolutism’ (civil law concept of dominium – outright ownership of a resource)
• Anchor Brewhouse Developments Ltd v Berkley House Ltd
- Over sailing cranes held as trespass
- Confirms view of property absolutism reading of Locke’s ideas
- However, judge takes absolutism reluctantly, would be better if public interest could sometimes
prevail (Wilkinson, McKendrick)
- Right to prioritise resource values
• Choice whether to sell resource or retain it (privilege of lucrative disposal, privilege of gift, privilege of
recreational appreciation)
• Just in terms of Locke if it is sold: not just if they keep it but do not use it.
• Rhone v Stephens
- Restrictive vs positive covenant: owner did not upkeep the roof, but could not be made to repair
it (positive covenant)
- Ultimately if not a restrictive covenant, the owner has a right to do with the property as he
wishes so long as it does not interfere with the rights of others or infringe restrictions
- Immunity from summary cancellation or extinguishment
• Quintessential Lockian idea, origination of the ‘right to enjoy possessions’ clause of ECHR
• Saeed v Plustrade Ltd
- Lessor could not remove the right of the lessee to park his car
• Magna Carta – property rights generally stable
3. Control (private vs public elements)
Private Law Sticks Vs Public law sticks
• Some represent rights (benefits)
• Some represent obligations/liabilities (burdens)
• Private law and public law sticks together = the extent of their holder’s property in (control over) the land
and the neighbouring land
*Restrictive Covenant: the right to stop activities on neighbouring land
*Easement: the right to access neighbouring land for specific purposes
Private law sticks in the bundle
• The estate in land that a person holds, plus the interests benefitting the estate
• Without the interests burdening the estate
• The sticks depict the degree of control that a person has over a specific piece of land and the land that
neighbours it
• Private law benefits = blue
1. Locke
- Mixing labour with earth (cultivation of land)
- Not using more than you need, and using what you have effectively (spoilation provision)
- Leaving enough for others (sufficiency provision)
* person has property in the land rather than the land itself being property
2. Irreducible features in property
- Property = relationship of social and legal control between person and resource (rather than owning a piece of
land)
- Presumptive right to exclude
• Nozickian vs Tullian versions of Lockian theory:
- N = private property is the paramount moral principle of ownership
- T = moral imperative to share with the needy
• Known as ‘property absolutism’ (civil law concept of dominium – outright ownership of a resource)
• Anchor Brewhouse Developments Ltd v Berkley House Ltd
- Over sailing cranes held as trespass
- Confirms view of property absolutism reading of Locke’s ideas
- However, judge takes absolutism reluctantly, would be better if public interest could sometimes
prevail (Wilkinson, McKendrick)
- Right to prioritise resource values
• Choice whether to sell resource or retain it (privilege of lucrative disposal, privilege of gift, privilege of
recreational appreciation)
• Just in terms of Locke if it is sold: not just if they keep it but do not use it.
• Rhone v Stephens
- Restrictive vs positive covenant: owner did not upkeep the roof, but could not be made to repair
it (positive covenant)
- Ultimately if not a restrictive covenant, the owner has a right to do with the property as he
wishes so long as it does not interfere with the rights of others or infringe restrictions
- Immunity from summary cancellation or extinguishment
• Quintessential Lockian idea, origination of the ‘right to enjoy possessions’ clause of ECHR
• Saeed v Plustrade Ltd
- Lessor could not remove the right of the lessee to park his car
• Magna Carta – property rights generally stable
3. Control (private vs public elements)
Private Law Sticks Vs Public law sticks
• Some represent rights (benefits)
• Some represent obligations/liabilities (burdens)
• Private law and public law sticks together = the extent of their holder’s property in (control over) the land
and the neighbouring land
*Restrictive Covenant: the right to stop activities on neighbouring land
*Easement: the right to access neighbouring land for specific purposes
Private law sticks in the bundle
• The estate in land that a person holds, plus the interests benefitting the estate
• Without the interests burdening the estate
• The sticks depict the degree of control that a person has over a specific piece of land and the land that
neighbours it
• Private law benefits = blue
