Property Law and Business
Property Law and Business
MP XXXXXXXXXXLecture 7
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Concept of Property
What is property? A common response is to list examples:
Things (goods)
Land
Copyright (the product of artistic or skilled endeavour)
Shares
Contractual rights (e.g. debts)
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Concept of Property
What is property? A common response is to list examples:
Software
Ai
Wate
Minerals
Indigenous rights (to hunt,, hold ceremonies, reside etc.)
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Concept of Property
What is property?
Legal rights that enable people to make use of ‘things’
Not everything can be subject to property rights
Most tangible ‘things’ can be subject to property rights
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Concept of Property
Most tangible ‘things’ can be subject to property rights e.g. ca
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Concept of Property
Most tangible ‘things’ can be subject to property rights e.g. dog
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Concept of Property
Most tangible ‘things’ can be subject to property rights e.g. clothes
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Concept of Property
Most tangible ‘things’ can be subject to property rights e.g. home (of some sort)
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Concept of Property
Most tangible ‘things’ can be subject to property rights e.g. money
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Concept of Property
Most tangible ‘things’ can be subject to property rights e.g. food
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Concept of Property
Many (but not all) intangible things can also be subject to property rights e.g. song
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Concept of Property
Many (but not all) intangible things can also be subject to property rights e.g. invention
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Concept of Property
Many (but not all) intangible things can also be subject to property rights e.g. company shares
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Real Property and Personal Property
Property can be:
Real property
Personal property
What is the difference?
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Real Property and Personal Property
There are a variety of property rights
However, they all have 2 essential characteristics:
They always relate to and depend upon the existence of a thing
They are enforceable against a wide range of people, not just specific people
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Look at examples in Chambers p 8
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Real Property and Personal Property
Essential characteristic No 1 – existence of a thing
Property rights must relate to things that are separate and apart from ourselves
Property rights do not cover:
My body
My reputation
unless the ‘intrinsic connection’ to me has been
oken
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If A lends B $20, A has the right to be paid $20 by B, and B has the co
esponding responsibility to pay $20 to A.
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Real Property and Personal Property
Essential characteristic No 2 – enforceability
All legal rights (in rem or in personam) have co
esponding responsibilities
Like other legal rights, property rights are enforced against persons
Unlike other legal rights, no specific person is responsible for the fulfilment of property rights
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If A lends B $20, A has the right to be paid $20 by B, and B has the co
esponding responsibility to pay $20 to A.
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Real Property and Personal Property
3 other characteristics shared by most (but not all) property rights
Alienability
Excludability
Value
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A non-assignable residential lease is not transfe
able but it is still a property right.
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Real Property and Personal Property
Alienability
Shared by most, but not all, property rights
Only an essential component if we accept the wide definition of property rights, but not if we accept the na
ow one
All property rights are ‘disposable’ but are not necessarily ‘transferable’
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A non-assignable residential lease is not transfe
able but it is still a property right.
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Real Property and Personal Property
2. Excludability
Shared by most, but not all, property rights
It means that the holder of the property right is able to exclude others from making use of the thing that is the subject of the property right
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But this does not apply to a right of way to cross a neighbour’s land – but the right of way is still a property right.
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Real Property and Personal Property
3. Value
Shared by most, but not all, property rights
However, some things are valueless but there may still be property rights in them
Some rights in personam also have value
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Real Property and Personal Property
The legal insight is that property is not so much about things, but rather about the relationship of people to things
A concept frequently espoused by lawyers is of property as a bundle of rights – or think of a bundle of sticks
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Real Property and Personal Property
This bundle of rights constituting property rights includes:
Right to exclude others from the property
Right to alienate the property to others
Right to use and enjoy the property (profit from it)
Right to possess the property
Responsibility to maintain, use and (depending on the legal system) share the property or its fruits with others
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Property v Other Rights
Property is a different kind of right to those protected by the law of torts or the law of contract
In negligence, the relationship protected is that of “neighbourhood” – the legal duty of care owed to other people as human beings
In the law of contract, the relationship protected is that created by agreement of the parties themselves – it is quintessentially “private” because it only affects legal rights created by the parties themselves
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Facts
Cowell bought a ticket to the races at Rosehill Racecourse in western Sydney (near Pa
amatta)
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Facts
Cowell became a nuisance (the demon drink was involved) and was asked to leave the course
Cowell refused and was then forcibly removed, using no more force than was necessary to do so
Cowell sued the Rosehill Racecourse for damages for assault
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Issue
If Cowell had a right to be at the racecourse (e.g. an “i
evocable licence” as he claimed), then his removal would have been unlawful and would have constituted an assault
If the licence had been validly terminated by the racecourse, then there was no assault as the force was no more than was necessary and therefore lawful
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Held
Cowell had a mere contractual right (licence) to enter the racecourse
The mere contractual right (licence) was not i
evocable and could be withdrawn at any time
The mere contractual right (licence) was not a proprietary right, because it was created by a contract and confe
ed no proprietary right
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Held
The important point to note here is that permission from the owner of a property to enter land for a particular creates no property right, unless it is coupled with something essentially proprietary in nature, such as:
a lease (exclusive possession)
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Held
o
an easement (a right to use the grantor’s land for a purpose benefitting land owned by the grantee)
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Held
The right to enter premises to view a spectacle is not such a proprietary right and therefore can be revoked even if granted by contract
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Comment
The distinction between contract and property is clear - Cowell was at most entitled to damages for
each of contract (probably limited to the price of his entry ticket)
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Property v Other Rights
Cowell v Rosehill Racecourse Co Ltd XXXXXXXXXXCLR 605
Comment
If Cowell had a property interest, he would have been entitled to an injunction and damages for trespass to his person and possibly substantial consequential damages (perhaps he could sue for the winnings on the horse he was going to back in the next race?)
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Some Things Cannot be Property
Certain things cannot be owned privately - res communes – access to air, running water, beaches, the sea
The common law has traditionally regarded these as inviolable rights of the public to certain natural resources that make them incapable of privatisation
The policy of the common law reflects that some resources may not be “propertised” because to do so would be contrary to fundamental moral assumptions and human freedoms (e.g. human body parts, slavery)
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Some Things Cannot be Property
There are many policy debates about this
A right to privacy, a right to human tissue reproduced via research to develop medical diagnostic tests or other products
The idea of res communes derives from Roman law and the idea of common heritage
Thus, for example, the resources of the high seas or outer space cannot be appropriated and the use of them belongs equally to all people
Do you agree?
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Some Things Cannot be Property
Can there be no property in a spectacle or a view?
Victoria Park Racing and Recreation Grounds Company Ltd v Taylor XXXXXXXXXXCLR 479
Facts
This case arose from the way in which races were
oadcast from racecourses in the 1930s in Australia
Racing clubs tightly controlled access to racecourses
There was little media reporting – it was mainly in the form of newspaper summaries after the race
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Some Things Cannot be Property
Victoria Park Racing and Recreation Grounds Company Ltd v Taylor XXXXXXXXXXCLR 479
Facts
Victoria Park was a racecourse in Zetland - it was bordered by O’Dea Avenue, South Dowling Street, Epsom Road and Joynton Avenue
It was privately owned and developed by Sir James John Joynton Smith (1858–1943), a hotelier, racecourse and newspaper owne
In 1947 the racecourse was bought by businessman Lord Nuffield and it was used for a motor vehicle assembly
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Some Things Cannot be Property
Victoria Park Racing and Recreation Grounds Company Ltd v Taylor XXXXXXXXXXCLR 479
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Some Things Cannot be Property
An aerial photo showing the Victoria Park Raceway in 1943 which was developed after the area — known as Waterloo Swamp — was drained of wate
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Some Things Cannot be Property
Victoria Park Racing and Recreation Grounds Company Ltd v Taylor XXXXXXXXXXCLR 479
Facts
Taylor owned a house beside Victoria Park Racecourse
Taylor