The concept of property
Queenie Liu © All rights reserved
The concept of property What is property?
o o o
Cohen – property is about relations between persons in relation to things “Ownership is a particular kind of legal relation in which the owner has a right to exclude the non-owner from something or other” – Dialogue on Private property Property is the institution by means of which societies regulate access to material resources; To claim property in a resource is to assert a degree of control
Significance of property
Intersections with other areas of law: torts and contracts Protecting proprietary rights and values
Three sets of rights (Milirrpun v Nabalco)
“…the meaning of property in legal discourse implies these three elements, it is nonetheless possible for property to exist where one or other of these features is missing.” Property is a bundle of rights – Yanner v Eaton
The right to use or enjoy The right to alienate (to sell or deal)
Yanner v Eaton: property is ‘a degree of power that is recognised in law as power permissibly exercised over a thing. R v Toohey – a proprietary right must be capable in its nature of assumption by third parties.
The right to exclude Classification of property
Stow v Mineral Holdings (Australia) Pty Ltd
Public right is not a property right and does not give sufficient proprietary interests for Stow to make an objection (Aickin J) o Reasons: All members of the public have a public right to pass freely but none have in their capacity as members of the public any estate/ interest in the land o the ordinary meaning of the compound expression ‘estate’ or ‘interest in land’ is an estate or interest of a proprietary nature in the land.
[1]
Queenie Liu © All rights reserved
Property rights and contractual rights Property Rights in rem (in respect of a thing)
Rights
enforced against the world
Contract Rights in personam (personal rights)
enforceable against the party of contract
Overlap: proprietary rights may arise from a contract
Remedy Flexibility
Even licenses are created by means of a binding contract, they do not give rise to a proprietary interest
Specific performance
Damages Contract > Property
Contractual Licences
Licence arises when permission is given by one person to another to do an act on the licensor’s land which would otherwise constitute a trespass Bare License
Contractual license
License with proprietary interest
Not associated with a contractual relationship. No proprietary interest May be revoked at the will of the licensor and for any reason. Licensee is trespasser if does not leave within reasonable time after revocation Created by means of a contract Revoked at will of the licensor, though a revocation may make the licensor liable for breach of contract if licensee breach terms of contract, contract may be terminated on ordinary contractual principles e.g profit a pendre (right to remove a natural product from the land of another) Cannot be revoked as long as the quarry is in operation Authorities + Rules
Cowell v rosehill racecourse Co Ltd
Equity may intervene
The right to see a spectacle cannot, in the ordinary sense of legal language, be regarded as a proprietary interest Ticket = contractual right in the buyer against the seller to have the contract performed = no remedies for proprietary interests but can only obtain a contract that is enforceable in personam by an action for damages
Facts: P argued equitable grounds-paid 4 shilling=license to remain on course-D should not remove him, revoke the license Held: appeal dismissed, no grant of a proprietary right to P Recent cases have not followed Cowell’s case – equity may intervene to prevent a contractual licensor from pleading that the license have been effectively revoked (treating contractual license as irrevocable) Heidke v Sydney City council
-
Contract contained no express / implied term allowing revocation & award of damages would not be adequate for loss. -> injunction
Varral v Great Yarmouth Borough Council
-
Held that contract contained an implied stipulation that licence would not be wrongfully revoked
Hounslow London Borough Council v Twickenham Garden Development
[2]
The concept of property What is property?
o o o
Cohen – property is about relations between persons in relation to things “Ownership is a particular kind of legal relation in which the owner has a right to exclude the non-owner from something or other” – Dialogue on Private property Property is the institution by means of which societies regulate access to material resources; To claim property in a resource is to assert a degree of control
Significance of property
Intersections with other areas of law: torts and contracts Protecting proprietary rights and values
Three sets of rights (Milirrpun v Nabalco)
“…the meaning of property in legal discourse implies these three elements, it is nonetheless possible for property to exist where one or other of these features is missing.” Property is a bundle of rights – Yanner v Eaton
The right to use or enjoy The right to alienate (to sell or deal)
Yanner v Eaton: property is ‘a degree of power that is recognised in law as power permissibly exercised over a thing. R v Toohey – a proprietary right must be capable in its nature of assumption by third parties.
The right to exclude Classification of property
Stow v Mineral Holdings (Australia) Pty Ltd
Public right is not a property right and does not give sufficient proprietary interests for Stow to make an objection (Aickin J) o Reasons: All members of the public have a public right to pass freely but none have in their capacity as members of the public any estate/ interest in the land o the ordinary meaning of the compound expression ‘estate’ or ‘interest in land’ is an estate or interest of a proprietary nature in the land.
[1]
Queenie Liu © All rights reserved
Property rights and contractual rights Property Rights in rem (in respect of a thing)
Rights
enforced against the world
Contract Rights in personam (personal rights)
enforceable against the party of contract
Overlap: proprietary rights may arise from a contract
Remedy Flexibility
Even licenses are created by means of a binding contract, they do not give rise to a proprietary interest
Specific performance
Damages Contract > Property
Contractual Licences
Licence arises when permission is given by one person to another to do an act on the licensor’s land which would otherwise constitute a trespass Bare License
Contractual license
License with proprietary interest
Not associated with a contractual relationship. No proprietary interest May be revoked at the will of the licensor and for any reason. Licensee is trespasser if does not leave within reasonable time after revocation Created by means of a contract Revoked at will of the licensor, though a revocation may make the licensor liable for breach of contract if licensee breach terms of contract, contract may be terminated on ordinary contractual principles e.g profit a pendre (right to remove a natural product from the land of another) Cannot be revoked as long as the quarry is in operation Authorities + Rules
Cowell v rosehill racecourse Co Ltd
Equity may intervene
The right to see a spectacle cannot, in the ordinary sense of legal language, be regarded as a proprietary interest Ticket = contractual right in the buyer against the seller to have the contract performed = no remedies for proprietary interests but can only obtain a contract that is enforceable in personam by an action for damages
Facts: P argued equitable grounds-paid 4 shilling=license to remain on course-D should not remove him, revoke the license Held: appeal dismissed, no grant of a proprietary right to P Recent cases have not followed Cowell’s case – equity may intervene to prevent a contractual licensor from pleading that the license have been effectively revoked (treating contractual license as irrevocable) Heidke v Sydney City council
-
Contract contained no express / implied term allowing revocation & award of damages would not be adequate for loss. -> injunction
Varral v Great Yarmouth Borough Council
-
Held that contract contained an implied stipulation that licence would not be wrongfully revoked
Hounslow London Borough Council v Twickenham Garden Development
[2]
