What is property?

Question 1

3 elements of property

Answer 1

1. Distributed control
2. Of things
3. In rem

Question 2

Distributed control

Answer 2

Splitting up the control of property in different ways.
Some property rights entail exclusivity, like a lease, but not all property rights have the same control

Question 3

Of things

Answer 3

Tangible, movable objects are known as chattels.
Land-related property or real estate is real property.

Not everything you buy or sell is property - eg you can sell contractual rights. What counts as a thing is a social, moral and political decision which each state decides.

Question 4

In rem

Answer 4

Against or about a thing.

The property right attaches to a thing in question, and applies to the world at large, rather than in personam rights which attach to individuals.

The right also runs with the thing it attaches to - even if the asset changes hands, subsequent owners bound by the same rights.

Question 5

Hill v Tupper

Answer 5

Owners of a canal gave an exclusive license to part of the canal, allowing Hill to rent sailboats.
Pub owner named Tupper allows his customers to use his boats on the canal.
He argued he had an easement which was being interfered with.

Held: Contract did not create any legal property right, so there was no duty on Mr Tupper. The benefit of an easement must be for land, and not for business.

Question 6

King v David Allen

Answer 6

Leaseholder gave Allen the permission to advertise on grounds of cinema.
New lease granted to new tenant, who refused to honour agreement.

Held: This was a contractual right, not a property right - doesn’t fit onto our menu of property rights. So, no right to put up posters as contractual rights do not bind successors.

Question 7

Keppell v Bailey

Answer 7

A promises to B that A and future owners of A’s ironworks will acquire stone from B’s quarry.

A sells to C - can B enforce right against C?

No because it was not open to A to grant B a new property right which would bind C.
In rem is a big deal - which is why we have a fixed menu of property rights which can be held in rem.

Question 8

Rudden article

Answer 8

There are some things which we see as more than wealth - they are so important and personal to us that they are not just things and wealth - they are almost part of ourselves due to sentimental value.

Whilst an iPad might be replaceable in its value, eg £500, a wedding ring is more important sentimentally, or a family heirloom.

Hence why the distinction between things as things and things as wealth, and why property emphasises individuals’ rights to ownership and why we have the tort of conversion to allow for a right to return.

Question 9

How do we justify having property rights?

Answer 9

Pros:
- Utilitarian justification: Provides individuals an incentive to improve and innovate, by rewarding them with property after they invest time and money. Furthermore, the value of the property is maximised when distributed out to individuals who can further it by renting, expanding or otherwise enhancing it.

• Non-utilitarian: Provides personhood and autonomy, to be able to write your own stories, have a room to decorate, owning a wedding ring – these are all things which dictate what it is to be human, and are necessary for human flourishing.

Downsides?

• Inequality – Those with more resources can accumulate more property, leading to wealth disparities. For example a person who owns 3 houses can live in one and rent out the other two, whilst using the income from one house to pay for the mortgage on a fourth house he is considering buying, and the income from the other to fund himself, supplementing other income. In this way one is becoming much much richer and accumulating more property, whilst those who are renting from him are not making much progress toward owning a home of their own.
• Can lead to homelessness or poor living conditions due to high house prices and living costs, which is avoidable under a system where no one owns property (obviously this comes with downsides too)
• There needs to be a balance, otherwise you lose out on public-owned facilities, such as parks and libraries or these will all become private. These also make up part of what it is to be human and are important for the flourishing of human life in my view.