LAWS1150: Property
LAWS1150: Property Week 5: Introduction to Property Contractual Licences
The Concept of Property o Property is the institution by means of which societies regulate access to material resources. o Property rules vary depending on time, place and historical circumstances. o Differences between legal rules governing access to, and use of, things may differ greatly even between industrialised societies. o Major difference between communist and capitalist societies is their approach to private property. Capitalist Society extensive protection with belief that the ability to own private property is an essential incentive for wealth creation. Communist Society public-owned property, on the grounds that private property is the source of oppression and inequality. o Most countries have mixed economies where some resources are privately owned, some by the State and free enterprise is subjected to some State regulation. o In advanced Western democracies private property predominates certain resources (beaches and public parks) are treated as common property used by all members. o In Australia, the diversity of forms of property rules reflects the mix of traditional rules and practices alongside modern forms of property. o Property law is one of the constituent categories of Private law Private law governs the relationship between private individuals. Divided into property law, contract, tort and unjust enrichment. Political and economic conditions have had an important influence on the development of property law. Citizens with large amounts of property often have greater influence than those who have little in determining the structure of what the law should be. Social changes development of new technology has forced courts and legislatures to consider novel questions as whether human cells or body parts should be treated as property. o Australian property law has traditionally been shaped by its historical origins in the English common law. More recently, specialised forms of land tenure relates to native title cases such as Mabo v Queensland and Wik v Queensland. o Extensive emphasis on real property tends to obscure the increasing contemporary importance of other forms of wealth (i.e. intellectual property) and the extent to which the same questions arise in relation to other forms of property. What is Property? o Property is the relationship that an individual has with something else that includes rights other that thing such as the right to use or enjoy, the right to alienate and exclude although not all elements need to be satisfied. o Felix Cohen (‘Dialogue on Private Property’) – suggests a definition of the term ‘property’ which emphasises that to talk about property is to talk not about objects but about relations between humans or relations between person in relation to things.
Private property must at least involve the right of the owner to exclude others from doing something in respect of the object of ownership.
The Idea of Property in Law – K Gray and S F Gray in Bright and Dewar (eds), Land Law: Themes and Perspectives o Too often people suppose the term ‘property’ to connote the thing which is the object of ‘ownership’. Realisation is that property is not a thing but rather a relationship which one has with a thing. o Better to say that one has property in a thing vs. the thing is one’s property. o ‘Property’ is rather a word used to describe particular concentrations of power over things and resources – ‘[property is] an abbreviated reference to a quantum of socially permissible power exercised in respect of a socially valuable resource.’ o Power relationship implicit in property is not absolute but relative gradations of ‘property’ in a resource. o Property therefore has an almost infinitely gradable quality. o Ambivalent conceptual models of property Whether property in land is to be understood in terms of empirical fact, artificially defined rights or duty-laden allocations of social utility. The idea of property in land swings ambivalently between the behavioural, conceptual and the obligational and between competing models of property as fact, right and responsibility. Milirrpum v Nabalco (1971) Blackburn J summed up the legal meaning of property as; o Generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. They do not have to co-exist...or deny that each of them may be subject to qualifications. o Blackburn emphasises that though it is ‘generally’ the case that 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 as the following example demonstrates: 1. The right to use or enjoy o Yanner v Eaton (1999) – Gleeson CJ, Gaudron, Kirby and Hayne JJ concluded that the term ‘property’ does not necessarily mean full, exclusive or beneficial ownership. o Term ‘property’ as in s7(1) of the Fauna Conservation Act 1952 where ‘property’ is a description of a legal relationship with a thing…it refers to a degree of power that is recognised in law as power permissibly exercised over the thing…rather a legally endorsed concentration of power over things and resources. o Wily v St George Partnership Banking Ltd (1999) – Finklestein J referred to Hohfeld’s view that ‘property comprised legal relations not things’, and that it was not necessary that ‘the dominion of the owner be absolute or fixed’ 2. Right to alienate a) Mason J in R v Toohey (1982) – assignability is not in all circumstances an essential characteristic of a right of property. By statue, some forms of property are inalienable. A proprietary right must be ‘capable in its nature of assumption by third parties’.
b) Non-assignable rights treated as property rights a beneficiary under a will was held to have acquired a non-assignable right to reside in a certain house as long as he desired. Regarded by Menhennit J as proprietary in character. c) ‘statutory tenancy’ of a tenant whose lease has expired, but remains in possession pursuant to legislation controlling rents and security of tenure, has a non-assignable interest in the land d) In NSW, ‘community land’ is held by local councils for the community benefit is declared by statute to be inalienable. 3. Right to exclude a) Exclusion is essentially a private right exercisable against the general public, including the state. b) Public rights because they are rights equally shared with other members of the public over land or goods common law public right to fish and navigate in the open sea. c) Public rights are to be distinguished from public ownership of utilities or industries, where the State owns assets on behalf of the public so as to regulate their use for the public benefit. d) No ‘public rights’ in relation to assets. e) Public rights are often conferred by statute. Stow v Mineral Holdings (1977) ALR Facts: Respondents were conducting mining activities on land adjacent to the South West National Park in Tasmania. The appellants lodged objections to mining with the warden on the grounds that prospecting or mining would damage the park. Warden concluded that the evidence suggesting that mining would have a deleterious effect was ‘overwhelming’ and refused to grant the respondents a prospector’s licence. The respondents were successful in appeals to the Supreme and Full court. Issue: What does an ‘interest in land’ mean? 'The expression 'interest in land'... does not embrace interests in which the person concerned has no greater claim than any other member of the public. The fact that some... use the statutory rights more often than others, does not elevate that right.' Aickin J – question under the Mining Act is whether in its present form is the nature of the jurisdiction conferred upon the warden and the effect of an order made by him? My opinion that the warden has no power whatever to accept or reject an application, that power is vested in the Minister to determine whether as a matter of policy it is desirable that the licence should be granted or refused.
The Concept of Property o Property is the institution by means of which societies regulate access to material resources. o Property rules vary depending on time, place and historical circumstances. o Differences between legal rules governing access to, and use of, things may differ greatly even between industrialised societies. o Major difference between communist and capitalist societies is their approach to private property. Capitalist Society extensive protection with belief that the ability to own private property is an essential incentive for wealth creation. Communist Society public-owned property, on the grounds that private property is the source of oppression and inequality. o Most countries have mixed economies where some resources are privately owned, some by the State and free enterprise is subjected to some State regulation. o In advanced Western democracies private property predominates certain resources (beaches and public parks) are treated as common property used by all members. o In Australia, the diversity of forms of property rules reflects the mix of traditional rules and practices alongside modern forms of property. o Property law is one of the constituent categories of Private law Private law governs the relationship between private individuals. Divided into property law, contract, tort and unjust enrichment. Political and economic conditions have had an important influence on the development of property law. Citizens with large amounts of property often have greater influence than those who have little in determining the structure of what the law should be. Social changes development of new technology has forced courts and legislatures to consider novel questions as whether human cells or body parts should be treated as property. o Australian property law has traditionally been shaped by its historical origins in the English common law. More recently, specialised forms of land tenure relates to native title cases such as Mabo v Queensland and Wik v Queensland. o Extensive emphasis on real property tends to obscure the increasing contemporary importance of other forms of wealth (i.e. intellectual property) and the extent to which the same questions arise in relation to other forms of property. What is Property? o Property is the relationship that an individual has with something else that includes rights other that thing such as the right to use or enjoy, the right to alienate and exclude although not all elements need to be satisfied. o Felix Cohen (‘Dialogue on Private Property’) – suggests a definition of the term ‘property’ which emphasises that to talk about property is to talk not about objects but about relations between humans or relations between person in relation to things.
Private property must at least involve the right of the owner to exclude others from doing something in respect of the object of ownership.
The Idea of Property in Law – K Gray and S F Gray in Bright and Dewar (eds), Land Law: Themes and Perspectives o Too often people suppose the term ‘property’ to connote the thing which is the object of ‘ownership’. Realisation is that property is not a thing but rather a relationship which one has with a thing. o Better to say that one has property in a thing vs. the thing is one’s property. o ‘Property’ is rather a word used to describe particular concentrations of power over things and resources – ‘[property is] an abbreviated reference to a quantum of socially permissible power exercised in respect of a socially valuable resource.’ o Power relationship implicit in property is not absolute but relative gradations of ‘property’ in a resource. o Property therefore has an almost infinitely gradable quality. o Ambivalent conceptual models of property Whether property in land is to be understood in terms of empirical fact, artificially defined rights or duty-laden allocations of social utility. The idea of property in land swings ambivalently between the behavioural, conceptual and the obligational and between competing models of property as fact, right and responsibility. Milirrpum v Nabalco (1971) Blackburn J summed up the legal meaning of property as; o Generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. They do not have to co-exist...or deny that each of them may be subject to qualifications. o Blackburn emphasises that though it is ‘generally’ the case that 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 as the following example demonstrates: 1. The right to use or enjoy o Yanner v Eaton (1999) – Gleeson CJ, Gaudron, Kirby and Hayne JJ concluded that the term ‘property’ does not necessarily mean full, exclusive or beneficial ownership. o Term ‘property’ as in s7(1) of the Fauna Conservation Act 1952 where ‘property’ is a description of a legal relationship with a thing…it refers to a degree of power that is recognised in law as power permissibly exercised over the thing…rather a legally endorsed concentration of power over things and resources. o Wily v St George Partnership Banking Ltd (1999) – Finklestein J referred to Hohfeld’s view that ‘property comprised legal relations not things’, and that it was not necessary that ‘the dominion of the owner be absolute or fixed’ 2. Right to alienate a) Mason J in R v Toohey (1982) – assignability is not in all circumstances an essential characteristic of a right of property. By statue, some forms of property are inalienable. A proprietary right must be ‘capable in its nature of assumption by third parties’.
b) Non-assignable rights treated as property rights a beneficiary under a will was held to have acquired a non-assignable right to reside in a certain house as long as he desired. Regarded by Menhennit J as proprietary in character. c) ‘statutory tenancy’ of a tenant whose lease has expired, but remains in possession pursuant to legislation controlling rents and security of tenure, has a non-assignable interest in the land d) In NSW, ‘community land’ is held by local councils for the community benefit is declared by statute to be inalienable. 3. Right to exclude a) Exclusion is essentially a private right exercisable against the general public, including the state. b) Public rights because they are rights equally shared with other members of the public over land or goods common law public right to fish and navigate in the open sea. c) Public rights are to be distinguished from public ownership of utilities or industries, where the State owns assets on behalf of the public so as to regulate their use for the public benefit. d) No ‘public rights’ in relation to assets. e) Public rights are often conferred by statute. Stow v Mineral Holdings (1977) ALR Facts: Respondents were conducting mining activities on land adjacent to the South West National Park in Tasmania. The appellants lodged objections to mining with the warden on the grounds that prospecting or mining would damage the park. Warden concluded that the evidence suggesting that mining would have a deleterious effect was ‘overwhelming’ and refused to grant the respondents a prospector’s licence. The respondents were successful in appeals to the Supreme and Full court. Issue: What does an ‘interest in land’ mean? 'The expression 'interest in land'... does not embrace interests in which the person concerned has no greater claim than any other member of the public. The fact that some... use the statutory rights more often than others, does not elevate that right.' Aickin J – question under the Mining Act is whether in its present form is the nature of the jurisdiction conferred upon the warden and the effect of an order made by him? My opinion that the warden has no power whatever to accept or reject an application, that power is vested in the Minister to determine whether as a matter of policy it is desirable that the licence should be granted or refused.
