Numerus Clausus Principle Flashcards
What is the numerus clausus principle (nc principle)
that there is a ‘closed’ / fixed list of property rights in land
a right can be proprietary only if it is in this list
What is the main consequence of the nc principle
What does this limit
private individuals are not allowed to create new property rights
Contractual freedom of private individual
Is the list really closed in other legal systems
yes
impossible to create new types of proprietary rights
Is the list really closed in the English system
Not completely
introducing new rights is possible
Who can introduce new rights
2 main ways to recognise the new rights
The State
1. Legislation
2. Judicial recognition
Is recognising new rights an easy process
No
slow and difficult
legal scholars can take part in the process - to support or hinder it
Examples of recognising property rights by Legislation
Commonhold -> Commonhold and Leasehold Reform Act 2002
Examples of recognising property rights by Courts
describe the process
is this encouraged
Freehold covenants (19th century) & proprietary estoppel (20th century)
usually a lengthy and incremental process
Courts are NOT encouraged to do this
Can the scope of existing rights be expanded
by whom
example (2 cases)
Yes
normally by the courts
e.g. easements
designed to give the parties some flexibility e.g. a right of way / a right to park (Moncrieff v Jamieson (2007)) / right to use leisure facilities (Regency Villas v Diamond Resorts (2018))
At what expense did the expansion of property rights occur
at the expense of personal rights
e.g. for easements, initially argued that they were personal rights
Are there any limits on the Courts
Statutory limitations
LPA 1925 s.1(1), (2). (3), s.4
Why do Courts avoid making new property rights
they exercise self-restraint
Merrill & Smith -> ‘judicial self-governance’
Can the ban on courts to not make new property rights be overlooked
case
Yes
National Provincial Bank v Ainsworth 1965
Lord Wilberforce establishes test to decide whether a right can be admitted into the property category
What was the test made by Lord Wilberforce (4 parts)
how useful is it
the right must be definable, identifiable by 3rd parties, capable in its nature of assumption by 3rd parties, have some degree of permanence
not very well-defined -> 3rd parties should be able to identify it as a right
test has never really been applied
Is the nc principle part of English Law
this is contested
Which 2 cases support the principle
Keppell v Bailey 1834
Hill v Tupper 1863
Comparison between the 2 cases supporting the principle
McFarlane
“Hill not only confirms the reasoning in Keppell but it expands it: from successors in title to ‘the rest of the world’ “
What is the wider public interest with regards to proprietary rights
“it is clearly inconvenient both to the science of the law and to the public weal that such a latitude should be given” - Lord Brougham in Keppell v Bailey
