Theories and Types of Property

Question 1

Why does property law matter?

when we talk about property we often mean Land

Answer 1

• Essential for human activity
• Provides us with a home
• Most substantial investment most of us make
• Underpins business funding and activity
• Long lasting asset

Question 2

How is Property Law different from Contract Law?

Answer 2

• Property Law comprises more than just contracts and agreements
• Property (‘proprietary’) rights can ‘bind the whole world’, not just the contracting parties
• Property relations may be based on contract for example- tenancy agreement, but property has its own rules on what makes an agreement valid and binding

Question 3

How is Property Law different from Torts?

Answer 3

• Trespass and nuisance are torts that are specifically concerned with property

BUT

• Duties of care in tort extend to “anyone foreseeable affected’; but in property law you have to show that you have a right in order to benefit.
• Overall property rights can bind ‘the whole world’

Question 4

Where are claims such as trespass, nuisance, eviction and repossession dealt with?

Answer 4

• These types of claims are dealt with at the County or High Court

Question 5

Reeve, A. (1986) Property. Basingstoke: Macmillan Quote

Clue: economic system, legal system and political system

Answer 5

“Property institutions are fundamental to social life, whatever form they take. Property provides links between an economic system, a legal system, and a political system.”

Question 6

Who can be seen as being the main promoter of “The Labour Theory of Property”?

Answer 6

• John Locke, (1632-1704)

Question 7

What were John Locke’s labour theory of property main views?

Answer 7

• Whoever “mixes his labour and joined to it something that is his own, and thereby makes it his property”

(Second Treatise of Government, 5.27)

Question 8

Who believes that property is created by law?

Answer 8

-Jeremy Bentham (1748-1832)

Question 9

Jeremy Bentham Quote:

Answer 9

• “Property and law are born and must die together. Before the laws, there was no property: take away the laws, all property ceases”.

—> Jeremy Bentham (1748-1832), Principles of the Civil Code, Part 1

Question 10

What were the main points made by Jeremy Bentham?

Answer 10

• Property is an artificial nature created by law

- On the outset no one owns anything

Question 11

What does Terra Nullius mean? (Conflicts over property systems)

Answer 11

• Land that nobody owned at all.

- This allowed England to claim possession of Australia in the 16th/17th century

Question 12

What case is this quote from:

Indigenous peoples’ relationship to the land is ‘more obligation than ownership’ ; it is ‘easier … to say that the clan belongs to the land than that the land belongs to the clan’

Answer 12

Milirrpum v Nabalco Property Ltd (1971) 17 FLR 141

Question 13

In Mabo v Queensland (No 2) (1992) 175 CLR 1, what did the Australian High Court accept?

Answer 13

• The Australian High Court accepted that it was impossible that Aboriginal peoples could be merely “trespassers on the land on which they and their ancestors had lived” for tens of thousands of years, and recognised a property right based on clan membership, to be exercised collectively.

Question 14

What does the Australian Native Title Act 1993 recognise?

Answer 14

• The act recognises the rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs

Question 15

What is the importance of possession?

Answer 15

‘The fulcrum of the English system of remedies is possession rather than ownership’

Question 16

What is Adverse Possession in English Law?

Answer 16

—> A trespasser who occupies land over time, excluding the true owner, can gain title to the land if she can demonstrate both:

> Factual Possession- sufficient degree of physical custody and control
Intention to possess- an intention to exercise such custody and control on one’s own behalf and for one’s own benefit

Question 17

What is the meaning of Possessory Title?

Answer 17

• A claim to the right to possession of a thing

Question 18

What is the meaning of “Relativity of title”?

Answer 18

• The ‘first in time’ possessor has a better title than anyone else- except for the true owner

Question 19

Armory v Delamirie (1722) 1 Stra 505 (KB)

Answer 19

Chimney sweep boy finds a ring whilst cleaning then goes to

Question 20

South Bucks v Porter [2003] 2 AC 558, Lord Bingham of Cornhill at [10]

Answer 20

• Porter, a gypsy , purchased land on a green belt area and put her caravan there.
• She applied for planning permission to remain on the site permanently but that was refused. She reapplied, was rejected again but the inspector allowed her to remain there because of a change in her circumstance, which included a deterioration in her health and absence of alternative sites.

Question 21

What is Sam burgum’s reflection/view on property rights?

Answer 21

“maintain and ideologically justify urban inequalities’ including lack of political voice

Question 22

What is Margaret Davies’s view on property rights?

Answer 22

• It is based on inaccurate assumptions that resources (land, materials) are infinitely exploitable and the ‘normalisation’ of colonial taking

Question 23

What is Sarah Blandy & Others view on property rights?

Answer 23

• It is a complex enduring relationships- informal arrangements between rights holders such as neighbours or landlords and tenants can be as important as legal rules and over time can become binding in their own right

Question 24

In what statute can you find the definition of ‘Land’?

Answer 24

Law of Property Act 1925

Question 25

Land includes:

Answer 25

• Land of tenure
• Mines and minerals
• Buildings or part of buildings
• Easement, right, privilege, or benefit in, over, or derived from land

Question 26

What is tangible property?

Answer 26

• Also known as ‘chattel’

- Moveable items which which you can touch

Question 27

What is the degree of annexation test?

Answer 27

• According to the degree of annexation test, an article is a fixture if it is attached to land or a building in a substantial manner, such as nails or screws. The more firmly or irreversibly the object is affixed to the earth or a building, the more likely it is to be classified as a fixture

Question 28

Elitestone v Morris [1997] 1 WLR 687

Answer 28

• A chalet bungalow was held to be real property as it could not be moved (although it was only resting on it foundations) without completely dismantling it.

Question 29

Chelsea Yacht and Boat Co v Pope [2000] 1 WLR 1941

Answer 29

• Houseboat held to be a chattel as it could be detached from the bank and moved

Question 30

Mew v Tristmere Ltd [2011] EWCA CIV 912

Answer 30

• Houseboats resting on wooden platforms supported by piles driven into the harbour bed; removal by a crane likely to result in their damage or destruction; held to be chattels as originally capable of floating and not intended to be permanent

Question 31

What is intangible property?

Answer 31

“All rights which can only be enforced by action, and not by taking physical possession”

-eg. Shares, debts, money in you bank account, intellectual property

Question 32

What are the two new forms of personal property?

Answer 32

1) EU carbon emission allowances

2) Bitcoins

Question 33

What is EU carbon emissions allowance, and what case conveys this?

Answer 33

• Carbon credits held to be ‘if not choses in action then certainly a form of other intangible property

CASE: Armstrong v Winnington [2012] EWHC 10 (Ch)

Question 34

What is Bitcoins and name the case?

Answer 34

• If it is necessary to classify it at all, then a crypto asset is best treated as being another, third, kind of personal property, neither a chose in possession nor a chose in action

Question 35

Moore v Regents of the University of California 793 P.2d 479 (Cal.1990)

—> Property Queries: who ‘owns’ body parts?

Answer 35

• Moore was a cancer patient and over the years the doctor removed several blood samples and other bodily fluids, and eventually this became a ‘cell line’ and was patented for commercial use
• Moore filed a lawsuit for a share in the potential profits from products or research had been derived from his cell line, without his knowledge or consent.

Question 36

Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37

—>who ‘owns’ body parts?

Answer 36

• D alongside size other men planned to undergo chemotherapy and before were advised to take out sperm samples to be frozen and stored for possible future use, then on June 28th/29th the liquid nitrogen in tank fell below the requisite level, and therefore was no attempt made to top them up, therefore the semen thawed.
• They each argue that in any even it is patently foreseeable