Property Law in New South Wales - Chapter 1: The Concept of Property

Vocabulary-style flashcards covering the key concepts, legal dimensions, philosophical theories, and major case law from Chapter 1 of Property Law in New South Wales.

Analytical Dimension of Property

The conceptual dimension that asks 'What is property?' and treats it as a contested term.

Philosophical Dimension of Property

The dimension concerning the justifications for particular property regimes.

Doctrinal Dimension of Property

The dimension involving specific legal rules that distinguish property rights from other types of rights.

Property (Blackstone's Definition)

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.

Dominion

Legally enforceable power, sometimes described as a 'bundle of rights'.

Exclusion

A right supported by the State to exclude others from property.

External things

May include physical tangible objects like land and chattels, or intangible objects such as intellectual property or company shares.

Transferability (Alienability)

The right of a property owner to transfer their rights to another person.

Punishment Rules

Rules detailing what happens to a person if they wrongfully interfere with another person's use of property.

Damage Rules

Rules requiring a person to pay compensation if they damage property without the owner's consent.

Liability Rules

Rules specifying that if a person's use of property results in damage to others, they will be held responsible.

A M Honoré’s Elements of Property

The right to possess, use, manage, income, and capital; the right to security; powers of transmissibility; absence of term; prohibition of harmful use; liability to execution; and residuary rights.

Wesley Hohfeld's Critique

The argument that property is not about 'things' but about legal relations between people, consisting of powers, duties, rights, and immunities.

Means-based Theorists

Theorists who focus on the tools or strategies of property.

Ends-based Theorists

Theorists who focus on the outcomes that property is intended to serve and the values underpinning it.

Labour Theory (John Locke)

The theory that because a person owns their own labour, they have rights to what they produce by mixing their labour with natural resources.

Utilitarian Justification (Jeremy Bentham)

The idea that law should protect and secure property because private property leads to greater happiness and security.

Karl Marx on Property

The view that property is a tool of oppression and that common ownership of the means of production is necessary because workers do not receive a fair return for their labour.

Function-based Justification (Tawney)

The suggestion that property created through work should receive more protection than property that merely yields passive income.

Floor Thesis (Munzer)

The aspect of property distribution theory that ensures a minimum amount of property for each person.

Gap Thesis (Munzer)

The aspect of property distribution theory that aims to limit the distance between the very rich and the poor.

Privity of Contract

The principle that a contract is enforceable only between the parties to it, distinguishing it from property rights which are enforceable against third parties.

Cowell v Rosehill Racecourse Co Ltd (1969)

A case where a racegoer's rights were held to be personal (contractual) rather than proprietary, meaning he could not obtain specific performance for being ejected.

Milirrpum v Nabalco Pty Ltd (1971)

A case where Indigenous rights were held not to be proprietary because they lacked traditional Western elements of exclusion and alienation.

Mabo v Queensland (No 2) (1992)

The landmark case holding that native title rights can be considered as proprietary despite differences from Western models.

Doodeward v Spence (1908)

A case establishing that property can exist in a human body part if it has been the subject of a 'lawful exercise of work or skill'.

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937)

A High Court case ruling that there is no 'quasi property' in a spectacle and that not everything of value constitutes property.

Foster v Mountford (1976)

A case where an injunction was granted to prevent the publication of confidential Aboriginal tribal secrets.

Dorman v Rogers (1982)

A case distinguishing personal rights (based on personal qualities and nontransferable) from proprietary rights.

Davis v Commonwealth (1988)

A case where the Commonwealth's claim to exclusive use of official bicentennial symbols was found to infringe on freedom of expression.

Stow v Mineral Holdings (Australia) Pty Ltd (1977)

A case determining that public rights, such as those held by bushwalkers in a national park, do not constitute a proprietary 'estate or interest in land'.

JA Pye (Oxford) Ltd v United Kingdom

A case involving a squatter who extinguished a documentary owner's title after 12 years of possession, analyzed in context of the European Convention on Human Rights.