You might think the idea of property is straightforward. In a way, it is. Almost anything tangible and many things intangible are capable of being property, under the common law. Even one of our jokes is capable of being property, assuming we actually made it up.
But “property” to a lawyer is not so much about the item in question, but the rights associated with it.
Is the right exclusive, or is it divided up, for example between the landlord who owns the freehold and a tenant who owns a lease?
Has someone else acquired rights over land by continuous use, through the law of prescription?
Has the apparent owner actually lost their rights if contested by someone who has been in exclusive possession of the land, without force, secrecy or permission, for a long period – so-called “squatters’ rights”?
In this episode we try to unbundle what the law bundles up, and we end by noting the cultural context of property law, which is based around individuals and particular kinds of uses. This looks ahead to the next episode, on native title, and the question whether and when the common law is capable of recognising the communal use of property by first nations’ peoples.
TRANSCRIPT
Stephen Bottomley
In this episode we talk about property. You might think that this a straightforward topic. Surely, we all have a clear idea about what property is. But once more we must begin our podcast with what is becoming our standard disclaimer: things aren’t that simple, especially in the common law world.
Stephen Parker
When people think of property, they mostly think about things that can be owned or possessed. In this regard, the law is quite flexible about what counts as property: it includes tangible things, such as land or a house (‘real’ property) and personal property, or chattels, (such as a car or a guitar).
It also includes intangible things such as copyright over a publication, shares in a company, or rights to income from a trust. A debt is also a form of property, which can be bought and sold. As is Bitcoin and other digital currencies (assuming anyone really understands it). (SB “Do you”? SJP “Not a chance.”). Even one of Stephen Bottomley’s jokes could be intellectual property, in the unlikely event he made it up himself.
Stephen Bottomley
Understanding what “things” can be property is essential, for example to know what can be inherited on someone’s death, what a Family Court can divide up on divorce, what counts as an asset in bankruptcy or what is capable of being stolen in the criminal law.
And property is not solely a creation of the private market. In an influential essay called ‘The New Property’, written in 1963, American legal academic Charles Reich argued that in contemporary western society many of the significant types of property are created by government, for example welfare entitlements, or licenses to operate.
Stephen Parker
Sometimes there might be room for argument about how far a person’s property extends. For example, what about the airspace directly above their house? The law says that a property owner does own that airspace but only so far as is necessary for ordinary use and enjoyment. So you cannot sue an airline company for trespass when one of its planes flies overhead at the usual altitude.
Stephen Bottomley
And some things are universally considered to lie outside any acceptable understanding of property. One cannot own another person. This is why, for example, slavery is prohibited in international law.
Stephen Parker
A classic legal definition of property was given way back in 1765 by the English jurist Sir William Blackstone (we’ve heard from him in previous episodes). He described property as ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’.
Stephen Bottomley
That sounds quite ominous, so let’s break it down. Blackstone’s definition identifies three aspects of the law governing property: first, dominion – a person’s right to use and enjoy their property; second, exclusion – the right to exclude others from using the property or from interfering with the owner’s rights; and third, external things – the things that can be classified as property, which as we’ve said can be tangible or intangible.
Stephen Parker
So Blackstone is saying the property is both a thing and also a source of rights?
Stephen Bottomley
Yes. In fact, for lawyers the interesting point about property is not so much the item of property itself, but the legal rights that are attached to that item. Sometimes lawyers define property as ‘a bundle of rights’. Those rights are associated with ownership of the property, and with control over how that property is used and who can use it. Those rights also include being compensated if the property is damaged or taken by another person.
Stephen Parker
It isn’t all about outright ownership. The same item of property can give rise to different rights for different people. In other words, we can undo the bundle of rights and allocate different rights to different people. Imagine a suburban house that is leased to tenants; imagine further that the block of land on which the house sits has long been used as an unofficial short cut by locals on their way to the train station.
Stephen Bottomley
Here we have at least three sets of property law interests that intersect: the interests of the owner in what is called the freehold of the property; the interests of the tenants who own a lease; and perhaps the expectations of the local short-cut users who might have acquired a right of way through a process called prescription.
Stephen Parker
Sometimes, other interests can override those of the property owner, such as the wider social interest. Listeners may be familiar with the iconic Australian film The Castle, in which a home owner was fighting the compulsory acquisition of his land. A key part of the plot was s 51(xxxi) of the Australian Constitution. It says that “The Parliament shall … have power to make laws … with respect to … the acquisition of property on just terms from any … person for any purpose in respect of which the Parliament has power to make laws”.
Stephen Bottomley
The idea of property captures an important tension underlying our legal system. On the one hand it is tied to ideas of freedom, ownership, privacy, personal autonomy and identity. The way in which citizens are able to function in western society is determined fundamentally by their status as property owners and property users. Charles Reich, who we referred to earlier wrote that “in a society that chiefly values material well-being, the power to control a particular portion of that well-being is the very foundation of individuality.”
Stephen Parker
On the other hand, property ownership means having regard to the rights of others. We see this in small ways, and in very large ways. I have a responsibility not to disturb my neighbours by playing loud music late at night – even though my musical taste is excellent (SB “not all of it, Steve”), my property rights must take account of theirs. Leaving aside any local bye-laws I have breached, the law may find I have committed the tort of private nuisance and am liable to pay damages to my neighbours.
Stephen Bottomley
On a larger scale, there are important questions about the use of private property and its impact on issues of global importance, such as environmental damage and climate change. Legislation restricting what someone can do with their property because of these concerns is now widespread, and increasing. It is theoretically possible that the tort of public nuisance could be used successfully by activists to draw attention to greenhouse gases being emitted from private property.
Stephen Parker
Another way to think about property in common law systems is to focus on it as relative to other people. In fact, the common law does not really recognize absolute ownership, unlike civil law systems drawing on Roman Law.
Stephen Bottomley
The law recognizes me as the owner because no one has yet come forward with a better claim. For example, I might think myself the owner of some land and have a title that is registered with a land registry. What could possibly be stronger than that? But if someone can prove that they had uninterrupted and exclusive use of that land for a particular period, often 12 years, they might have acquired a better “title” to it by virtue of what is called “adverse possession”, colloquially known as “squatter’s rights”.
Stephen Parker
Similarly, with a chattel. If I know that someone has taken my Fender Telecaster guitar and doesn’t give it back to me when I ask for it, I have to sue for its return before the limitation period expires; usually 6 years. That person may or may not be liable in the criminal law for taking it or keeping it, but they may still acquire a better claim to the guitar after 6 years, even whilst its owner gently weeps.
Stephen Bottomley
If someone is cast away on a desert island, with no on else there, the castaway is not concerned with what is or is not their property. It is only when someone else lands on the island that things begin to change and the castaway might seek to enforce a claim to something.
Stephen Parker
So, rules about property rights are one way in which disputes can be resolved, peacefully. Indeed, some argue that those rules are essential to the very idea of property. The English philosopher Jeremy Bentham wrote in the 1800s that ‘property and law are born together … before laws were made there was no property, take away laws and property ceases’
Stephen Bottomley
Others say that it is not that simple. There are norms and social practices that also shape our understanding of property. US property law academic Joseph Singer gives a simple example: when you go to a café and order a cup of coffee, you know that the cup in which the coffee is served is not part of the purchase price. You can’t take the cup home. You know this because of an everyday understanding, not because of express legal terms From this example, Singer extrapolates an important point: these norms are essential to the operation of a system of property law.
Stephen Parker
Everything we’ve said about property so far in this episode stems from the common law understanding of the term. The idea of property is not only specific to a legal system, it is also culturally bound. This was the key issue in the Mabo case, where the High Court of Australia noted that native title has its origin in the traditional laws and customs of Aboriginal and Torres Strait Islander peoples, and so native title interests will not necessarily correlate with property rights in our Anglo-Australian legal system. The Court then said that while native title is not part of our common law, it should nevertheless be recognized by the common law. We’ll look at this in more detail in an episode on native title when we speak with Professor Kate Galloway, an expert in the area.
Stephen Bottomley
So the idea of property covers a lot of conceptual ground. It is not surprising then that property law is one of the oldest parts in our common law system, and it underpins many other parts of our law, such the rules governing wills and probate, family law, torts and criminal law. We will keep bumping into different aspects of property law in future episodes of – Law in Context.
References:
Joseph William Singer, The Paradoxes of Property (Yale University Press 2000)
Australian Law Reform Commission, Report 129 (2016) Chapters 18 – 20