Property Law in New South Wales - Chapter 1: The Concept of Property
Overview and Significance of Property
Historically, land has been considered the most valuable asset an individual could hold.
The term 'property' does not have a static meaning; its definition varies significantly depending on the specific context in which it is used [1.1–1.3].
Property maintains a multi-dimensional significance:
Political and Economic: Central to wealth distribution and state organization.
Environmental, Cultural, and Social: Plays a role in sustainability, heritage, and social structures.
A secure property system is a fundamental prerequisite for maintaining social order.
Dimensions and Definitions of Property
The nature and boundaries of 'property rights' evoke complex conceptual questions. The study of property can be broken down into three specific dimensions [1.4]:
Analytical: Explores the question: "What is property?" noting that it is a contested term.
Philosophical: Investigates the justifications for particular property regimes.
Doctrinal: Focuses on specific legal rules that distinguish property rights from other types of rights.
Sir William Blackstone’s Definition (1765): In Commentaries on the Laws of England, he defined 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" [1.4].
Consequences of Definitions: How one defines property has direct implications for the distribution of wealth and power, the regulatory role of governments, and the personal autonomy of citizens [1.5].
Analytical Dimension: Elements and Rules of Property
Basic Elements of a Property Right [1.5–1.12]:
Dominion: This refers to legally enforceable power. It is frequently described as a "bundle of rights."
Exclusion: The right to exclude others, which is actively supported and enforced by the State.
External Things: These can be physical (tangible) items such as land and chattels (personal property) or intangible items such as intellectual property or company shares.
Transferability or Alienability: The legal right to transfer property ownership to another person.
Ownership Implications (Snare, 1972): Ownership of property (P) by an individual (A) implies [1.9]:
A has the right to use P.
Others (B) may use P if, and only if, A provides consent.
A may permanently transfer the rights of use and consent to other specific persons.
Supplementary Rules [1.9]:
Punishment Rules: Detailed consequences for when B wrongfully interferes with A's use of P.
Damage Rules: Requiring B to pay compensation if P is damaged without A's consent.
Liability Rules: Determining that if A's use of P causes damage to others, A is held responsible.
A M Honoré’s Elements of Property [1.11]:
The right to possess.
The right to use.
The right to manage.
The right to the income.
The right to the capital.
The right to security.
The power of transmissibility.
The absence of term.
The prohibition of harmful use.
Liability to execution.
Residuary rights.
Property as Relationship vs Thing
Property rights are neither absolute nor unlimited; they require a balance between public and private interests.
Wesley Hohfeld’s Critique: Property does not concern "things" themselves. Instead, it concerns legal relations between people, which are broken down into rights, duties, powers, immunities, and their correlatives. Hohfeld rejects the characterization of property as a physical thing or an absolute right [1.13–1.14].
Felix Cohen and Morris Cohen: Also advanced criticisms of "thing" theories regarding property [1.17–1.18].
Theories of Nature:
Means-based theorists: Focus on the specific tools or strategies of property.
Ends-based theorists: Focus on the values and outcomes property is intended to serve [1.13–1.21].
Philosophical Bases of Property
Labour Theory (John Locke, Second Treatise on Government):
A person owns their own labor. By "mixing" their labor with a resource, they acquire rights to what is produced.
Limits: There must be "enough, and as good, left in common for others," and one should not appropriate so much that it "spoils" in their possession.
Criticisms: It excludes collective production and certain classes (servants, women), ignores environmental issues, and overemphasizes individual agriculture [1.23–1.28].
Utilitarian Justifications (Jeremy Bentham, The Theory of Legislation (1931)):
Property is created by law, not labor. Law should secure property because private property maximizes happiness.
Criticisms: Difficulty in measuring happiness and failure to account for marginal utility [1.29–1.31].
Economic Justification:
Aimed at efficiency and wealth maximization. Three preconditions exist for this model [1.32–1.35]:
Law-protected exclusivity of ownership.
Free and efficient transferability without limits on accumulation.
Inclusion of as many things as possible under private property.
Justice and Equality (Karl Marx):
Property is viewed as a tool of oppression. Workers are denied the full value of their labor because they do not own the means of production. Marx encourages common ownership and revolution [1.36–1.40].
Functional Justification (Tawney):
Arguments supporting property should be function-based. Protection should prioritize property created by the owner over property that merely yields passive income [1.38–1.39].
Feminist Theories:
Property theories are often patriarchal. For example, Locke's theory ignores traditional domestic work. Constructive trust laws and a focus on "certainty" are viewed as masculine values that disadvantage women [1.41–1.47].
Pluralist Approach (Munzer, A Theory of Property (1980)):
Combines Utility/Efficiency, Justice/Equality, and Labour/Desert.
Floor Thesis: Distribution must ensure a minimum for each person.
Gap Thesis: Limits the economic distance between the very rich and very poor [1.48–1.49].
Historical Evolution of Property
Feudal Era: Property (land) was inclusive, collective, focused on resource access, and not easily marketable [1.50–1.55].
17th Century: Shift toward individual rights, the right to exclude others, and a market-based economy.
20th Century: The rise of the welfare state treated property as a right not to be excluded from collective resources or revenue streams.
Recent Trends: Privatization and deregulation have led back to the dominant idea of property as the right to exclude [1.50–1.55].
The Boundary Between Property and Other Rights
Property vs. Contract:
Privity of Contract: Contracts are enforceable only between parties involved; property rights are enforceable against the world.
Remedies: Breach of contract usually results in damages, whereas property rights may allow for proprietary remedies.
Case: Cowell v Rosehill Racecourse Co Ltd (1969). A racegoer's ticket was a personal license (contractual), not a proprietary interest; thus, he could not obtain specific performance to remain on the track [1.56–1.58].
Indigenous Rights:
Milirrpum v Nabalco Pty Ltd (1971): Blackburn J held Indigenous rights were not proprietary because they lacked the rights of exclusion and alienation.
Mabo v Queensland (No 2) (1992): The High Court ruled that native title rights can be considered proprietary despite being different from Western models [1.59].
Body Parts:
Generally, no property exists in the body unless it has undergone a "lawful exercise of work or skill."
Doodeward v Spence (1908): Rights were recognized in a preserved two-headed baby body.
Edwards; Re the Estate of Edwards [2011]: Stored human sperm was held to be property.
Moore v Regents of the University of California (1990): A cell line from a spleen was not considered personal property (chattel) for the plaintiff [1.60–1.65].
Spectacles and Information:
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937): The High Court held there is no "quasi property" in a spectacle (a race). One cannot own a "view."
Legislation: Intellectual property is protected by statutes: Plant Breeder’s Rights Act 1994 (Cth), Copyright Act 1968 (Cth), Patents Act 1990 (Cth), and Trade Marks Act 1995 (Cth).
General Law: Confidential information can be protected, such as Aboriginal tribal secrets in Foster v Mountford (1976) [1.66–1.71].
Right to Work and Civil Rights:
Dorman v Rogers (1982): Distinguished between non-transferable personal rights (medical registration) and transferable property rights.
Davis v Commonwealth (1988): The Commonwealth's exclusive claim to bicentennial symbols (e.g., '1788') was found to infringe on the freedom of expression [1.72–1.74].
Public vs. Private Property:
Stow v Mineral Holdings (Australia) Pty Ltd (1977): Use of a national park is a public right, not a proprietary interest or "estate in land" required for legal objection to mining [1.75].
Property and Human Rights
Interaction with international instruments like the European Convention on Human Rights (ECHR).
JA Pye (Oxford) Ltd v United Kingdom: Concerned a squatter extinguishing a titled owner's rights after 12 years of possession. The Grand Chamber eventually found this compliant with the Convention despite lack of compensation.
Connors v United Kingdom [2004]: Eviction of a gypsy family without procedural protection violated Art 8 of the ECHR [1.76–1.78].
Some Australian jurisdictions have now passed domestic human rights legislation [1.78].
Conclusion
Property law is a subcategory of private law.
Property rights are interconnected; one party's rights can impact the property, civil, and human rights of others simultaneously [1.79].