INTRODUCTION TO PROPERTY LAW
Key Concepts:
Political
Liberating
Restrictive
Ethical
Historical
Dynamic
Notes on Property:
Is a “thing” inherently valuable?
- No, it can lose value
- Can I do whatever I want with my ‘thing’
- Patent – protecting of one’s idea
- Where you are in your economic state defines your idea of property
- The drivers of law lie outside of it – it lies on the society
- What makes a “thing” a property?
1) Hypothesis: Property is not a “thing” (in and of itself)
- Does the “use” of a thing, make it a property?
2) Hypothesis: Property is not simply a relationship between a person
and a thing
Definition of Property:
Property decides the power-relationship between the owner and everyone else
in the world.
- Property is only made possible by the exercise of power
STRATEGY: “Thinking About Thinking”
Example of the earth rotating around the sun
Colours/Words – different shades
- Thinking takes place at 6 levels:
1) Observation
- Based on senses (e.g. earth is flat)
2) Description
- Recording the findings (developing language skills)
- The purposes of accuracy
3) Analysis (to breakdown into component parts)
- Self – taught/experiential
, Example of riding a bicycle – the importance of continuously moving
forward
- Connecting the dots
4) Dynamic (the movement of something overtime – aetiology)
5) Conclusion (insightful statement)
6) Additional Research Needed (things revealed leading to the need of
new investigation/hypothesis – a theory that hasn’t yet matured)
“Bundle of Rights” examples:
- Right to use
- Right to sell
- Right to possess
- Right to loan
- Right to use up
Haynes case
- There is no right of abandonment
The History of Property Law
Notes:
- When considering economic developments, note of the change in the
mode of production.
- The change in the mode of production results to a change in the
relationship between individuals within that society
On Property and the Economy:
Proudhon – Property is Theft
Marx
Kaynes (on capitalism) – distribution; high taxation = increase in welfare
Charles Wright – difference on personal rights and property rights
(entitlement to social welfare benefits is a personal right not property
rights)
Smith – The Labour Theory of Value
- Value as a result of human work; use value and exchange value are not
realized until human work is involved
- Account on Society’s development: hunters to shepherds to farmers
- Economic development determines our conception of property and how
they are regulated; it also determines conducts that are criminalized an
the punishments that are involved
1) Hunter-gatherers
- No sense of property at this age because objects of property (mainly
food) was consumed/used up almost immediately
- Mode of production determined how many people lived together and
how long they lived
- Economic base is the driving factor
, 2) Agriculture
- Division of labour was introduced
- As a result of efficiency, there has been a surplus of supply
- Different trades started to flourish each of which enhanced the other
- Interpersonal relationships started to blur and therefore needed o be
enforced and formalized
- Commercial agreement is enforced via contracts
Marx
- The exploitation lie in the façade of consensual employment relationship
Problem with Property:
- Where mode of production is not collectively owned and is instead
privately owned
I. PROPERTY RIGHTS
- Rights in rem
- A right over or in respect of
II. PERSONAL RIGHTS
- Rights in personam
- Rights against a person, generated by the act of the person or
imposed on him y law
III. Third Parties and Property Rights
- Proprietary rights are inherently capable of both benefiting and
binding parties who were not involved in their original creation
- Property right is either the right to the land itself (i.e. ‘ownership’
of that land); or a right owned by a third party in or over that land
(i.e. an easement); The Third Party’s acquisition of the land brings
with it burdens that are in law recognized as attaching to the land
- Common law does not recognize absolute property rights in land,
but has developed the Doctrine of Estates in land
- Equity developed the protection of property rights through the
concept of the Trust
- Not every successor in title to the land will necessarily be bound
by every right attached to the land
Principal Concern of the Law of Property:
What is meant by saying that a person is the ‘owner’ of the property; what
other rights of third parties are recognized by the law as being capable of
existing in or over that property; and in what circumstances a successor to
the owner is bound to give effect to those third-party rights.
, EQUITY AND TRUSTS – Lecture 2
Gray Article
Property as according to the Roman Law
- The right to enjoy a thing and to dispose of it in the most absolute
manner i.e. as the right to deal with that thing as one pleases and to
exclude strangers from interference
- Dominium: The legal title and the right of actual beneficial enjoyment
Notes:
- Difficulty is faced when considering a number of “owners” – each with
a proprietary right
The Institution of the Trust as developed by the courts of Equity:
Definition of Trust:
- The essence of a ‘trust’ is the idea that the trustee is the nominal
owner of property but that the real or beneficial owner is the
‘beneficiary’
- The formal or ‘titular’ interest in property is vested in a nominee
(trustee) whose duty is to deflect the beneficial enjoyment of the
property to those who hold the ‘equitable interest’ under the trust.
- Trust separates the functions of administration and enjoyment
Purpose:
- An obligation arising out of a confidence (by the owner) reposed in the
trustee, or person who has the legal title to property conveyed to him,
that he would faithfully apply the property according to the
confidence repose in him i.e. in accordance with the wishes of the
creator of the trust.
Notes:
- Problem with the law: Full rights of ownership were recognized to be
vested in the person indicated by the paper title (the trustee)
- The courts of common law regarded the formal title as conclusive of
any question relating to use, benefit or enjoyment
Equity
The Court of the Chancery
- It is in this court that the moral obligations imposed upon the trustee
could be enforced
- The body of rules developed in this court is known as “Equity”
Purpose:
Key Concepts:
Political
Liberating
Restrictive
Ethical
Historical
Dynamic
Notes on Property:
Is a “thing” inherently valuable?
- No, it can lose value
- Can I do whatever I want with my ‘thing’
- Patent – protecting of one’s idea
- Where you are in your economic state defines your idea of property
- The drivers of law lie outside of it – it lies on the society
- What makes a “thing” a property?
1) Hypothesis: Property is not a “thing” (in and of itself)
- Does the “use” of a thing, make it a property?
2) Hypothesis: Property is not simply a relationship between a person
and a thing
Definition of Property:
Property decides the power-relationship between the owner and everyone else
in the world.
- Property is only made possible by the exercise of power
STRATEGY: “Thinking About Thinking”
Example of the earth rotating around the sun
Colours/Words – different shades
- Thinking takes place at 6 levels:
1) Observation
- Based on senses (e.g. earth is flat)
2) Description
- Recording the findings (developing language skills)
- The purposes of accuracy
3) Analysis (to breakdown into component parts)
- Self – taught/experiential
, Example of riding a bicycle – the importance of continuously moving
forward
- Connecting the dots
4) Dynamic (the movement of something overtime – aetiology)
5) Conclusion (insightful statement)
6) Additional Research Needed (things revealed leading to the need of
new investigation/hypothesis – a theory that hasn’t yet matured)
“Bundle of Rights” examples:
- Right to use
- Right to sell
- Right to possess
- Right to loan
- Right to use up
Haynes case
- There is no right of abandonment
The History of Property Law
Notes:
- When considering economic developments, note of the change in the
mode of production.
- The change in the mode of production results to a change in the
relationship between individuals within that society
On Property and the Economy:
Proudhon – Property is Theft
Marx
Kaynes (on capitalism) – distribution; high taxation = increase in welfare
Charles Wright – difference on personal rights and property rights
(entitlement to social welfare benefits is a personal right not property
rights)
Smith – The Labour Theory of Value
- Value as a result of human work; use value and exchange value are not
realized until human work is involved
- Account on Society’s development: hunters to shepherds to farmers
- Economic development determines our conception of property and how
they are regulated; it also determines conducts that are criminalized an
the punishments that are involved
1) Hunter-gatherers
- No sense of property at this age because objects of property (mainly
food) was consumed/used up almost immediately
- Mode of production determined how many people lived together and
how long they lived
- Economic base is the driving factor
, 2) Agriculture
- Division of labour was introduced
- As a result of efficiency, there has been a surplus of supply
- Different trades started to flourish each of which enhanced the other
- Interpersonal relationships started to blur and therefore needed o be
enforced and formalized
- Commercial agreement is enforced via contracts
Marx
- The exploitation lie in the façade of consensual employment relationship
Problem with Property:
- Where mode of production is not collectively owned and is instead
privately owned
I. PROPERTY RIGHTS
- Rights in rem
- A right over or in respect of
II. PERSONAL RIGHTS
- Rights in personam
- Rights against a person, generated by the act of the person or
imposed on him y law
III. Third Parties and Property Rights
- Proprietary rights are inherently capable of both benefiting and
binding parties who were not involved in their original creation
- Property right is either the right to the land itself (i.e. ‘ownership’
of that land); or a right owned by a third party in or over that land
(i.e. an easement); The Third Party’s acquisition of the land brings
with it burdens that are in law recognized as attaching to the land
- Common law does not recognize absolute property rights in land,
but has developed the Doctrine of Estates in land
- Equity developed the protection of property rights through the
concept of the Trust
- Not every successor in title to the land will necessarily be bound
by every right attached to the land
Principal Concern of the Law of Property:
What is meant by saying that a person is the ‘owner’ of the property; what
other rights of third parties are recognized by the law as being capable of
existing in or over that property; and in what circumstances a successor to
the owner is bound to give effect to those third-party rights.
, EQUITY AND TRUSTS – Lecture 2
Gray Article
Property as according to the Roman Law
- The right to enjoy a thing and to dispose of it in the most absolute
manner i.e. as the right to deal with that thing as one pleases and to
exclude strangers from interference
- Dominium: The legal title and the right of actual beneficial enjoyment
Notes:
- Difficulty is faced when considering a number of “owners” – each with
a proprietary right
The Institution of the Trust as developed by the courts of Equity:
Definition of Trust:
- The essence of a ‘trust’ is the idea that the trustee is the nominal
owner of property but that the real or beneficial owner is the
‘beneficiary’
- The formal or ‘titular’ interest in property is vested in a nominee
(trustee) whose duty is to deflect the beneficial enjoyment of the
property to those who hold the ‘equitable interest’ under the trust.
- Trust separates the functions of administration and enjoyment
Purpose:
- An obligation arising out of a confidence (by the owner) reposed in the
trustee, or person who has the legal title to property conveyed to him,
that he would faithfully apply the property according to the
confidence repose in him i.e. in accordance with the wishes of the
creator of the trust.
Notes:
- Problem with the law: Full rights of ownership were recognized to be
vested in the person indicated by the paper title (the trustee)
- The courts of common law regarded the formal title as conclusive of
any question relating to use, benefit or enjoyment
Equity
The Court of the Chancery
- It is in this court that the moral obligations imposed upon the trustee
could be enforced
- The body of rules developed in this court is known as “Equity”
Purpose:
