Things - Advanced Property Flashcards
Keppell v Baily
the numerus clausus principle
‘there are certain known incidents to property and its enjoyment;…[b]ut it must not therefer be supposed that incidents of a novel kind can be devised and attached to property and the fancy or caprice of any owner. It is clearly inconvenient both to the science of the law and to the public weal that such a latitude should be given…great detriment would arise and much confusion of rights if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands…’
oNo! - no property right, only a personal right between A and B
oB can sue A to stop C
oA promises B that A and future owners of A’s ironworks will acquire limestone
from B’s quarry only.
oA sells ironworks to C.
oCan B assert a right against C?
AA v Persons Unknown [2019]
The numerus clausus principle - cryptocurrencies - digital assets
**Judgement
**
Because proprietary injunctions can only be granted over property, the Commercial Court first had to consider whether Bitcoin constitutes a form of property. Although Bitcoin do not fit into either of the two conventional categories of property – ‘choses in possession’ or ‘choses in action’ – the Court reviewed the analysis of the proprietary status of cryptoassets in the UKJT Statement, and in particular the UKJT’s conclusion that, despite their “novel or distinctive features“, cryptoassets may be objects of property rights, and “[i]f it is necessary to classify it at all, then a cryptoasset is best treated as being another, third kind of property” (UKJT Statement, para. 86(a)). The Court agreed with this approach, adding that “it is fallacious to proceed on the basis that the English law of property recognises no forms of property other than choses in possession and choses in action“.
Having confirmed that Bitcoin constitutes property, the Court granted the proprietary injunction.
In October 2019, one or more hackers encrypted the IT systems of a Canadian insurance company with malware. In order to regain control of its IT systems, the insurance company paid the hacker(s) a ransom of 109.25 Bitcoins (approx. $950,000).
The insurance company’s cybercrime insurer traced the ransom payment to a Bitcoin wallet linked to and controlled by Bitfinex, a crypto exchange operated by two British Virgin Island entities. The insurer applied for a proprietary injunction to recover the 96 Bitcoins that remained in the wallet.
Swift v Dairywise
the numerus clausus principle
recognised property rights in dairy products
The facts of this case are complicated. The case involved two sister companies trading in milk quota and revolved around the extent to which such quota could be treated as security for a loan. In short, loans were made by Dairywise Ltd to farmers whose milk quota was transferred to Dairywise Farms Ltd as security for the loan. After Dairywise Ltd went into liquidation, its liquidators brought proceedings against Dairywise Farms Ltd, contending that Dairywise Farms Ltd held the milk quota for the benefit of Dairywise Ltd.
The decision at first instance of Jacob J considered the juridical nature of milk quota. The judge held that milk quota constituted property within the definition of section 436 of the Insolvency Act 1986 and was capable of forming the subject matter of a trust between Dairywise Ltd and Dairywise Farms Ltd.
Acton v. Blundell
the numerus clausus principle - water
American case
It was ruled that the defendant was not required to pay any damages to the plaintiff because the defendant was not involved in any infringement of the plaintiff’s right and that the defendant was fully entitled to use the water for the purposes of his mining.
Held: allowed to extract as much water as you want. => The absolute dominion rule (= initial rule) – rule that allowed people t extract as much as they want notwithstanding the csq.
[8] - In this case, in the usual manner, the defendant (a landowner) carried out the mining operations on his field. He finally drained water from another owner’s (plaintiff’s) land through which the water flowed into his well in a subterranean course.
CORE: Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 (Ch), [2012] Env LR D4
the numerus clausus principle - carbon allowances
Issue: Does A has a claim against W for it?
(If B steals A’s property and sells it to C’ does A has a claim? )
Holding: The Court classified EUAs as intangible property at common law, as they satisfy the three prongs of the test, and determined that since EUAs may be subject to restitutionary claims, Armstrong was entitled to a money judgment.
Facts: Under the EU Emissions Trading Scheme (EU ETS), European Union Allowances (EUAs) are now classified as intangible property under English law. As a result of a fraudulent sale to Winnington of EUAs belonging to Armstrong, it was necessary to determine, among other things, their status under law. To determine the status of EUAs, the Court applied a three-part test identified in Re Celtic Extraction. In order for EUAs to be considered property, there must be statutory framework conferring an entitlement on their holder to an exemption from a fine, the “property” must be transferable under a statutory framework, and the “property” must have value.
A is company registered in Germany producing PVC and a type of linoleum. The EU ETS applied. They had carbon allowances. Winnington is an English registered company, and their supply chains operations are online, and they also trade carbon allowances – because they trade they have a high traffic. Many allowances (worth 200, 000 euros) were transferred from Armstrong to Winnington trading account and this without A’s permission (a middle company facilitated the transaction). Winnington did not know it was a fraud but did not look at carefully as they should have, bc W is an active trader, within a short amount of time, they sold them off. A goes top a=court asking whether they can get something back from W.
OBG v Allan
conversion
Lord Hoffmann, Lord Walker and Lord Brown (the majority) argued that conversion should not be extended to contracts.
OGB was in a dire financial situation – receivers were incorrectly appointed (liquidators argued that the receivers were culpable of conversion of contractual rights which are things in action).
- Alleged ‘conversion’ and wrongful interference with contractual rights and claims by incorrectly appointed receivers
What is a bitcoin?
a string of data or bits. When that string is combined with a private key ypu can make transaction on the blockchain. Was introduced in 2009 in a decentralized asset (happened through the use of a public ledger known as blockchain) When a transaction happens published on public ledger. When verify that transaction – added to the blockchain, once it is added, you cannot change it.
Tulip Trading [2023] EWCA Civ 83
conversion and digital assets
“a cryptoasset such as bitcoin is property”
Zoe Claire Bucknell v Alchemy Estates
right of way - numerus clausus
- The other aspect of the construction of express grants of rights of way relates to their status as property rights. Purely contractual rights (with limited exceptions) apply only as between the parties to a contract, and are usually of short to medium duration. So, subject only to public policy limits, they may have whatever content the parties please. However, property rights are different. They are intended to be stable and long-lasting, and to apply to (and potentially affect) third parties. They therefore should be clearly recognisable to third parties and their advisers.
- In the civil law, this is partly achieved by the idea that there is in principle only one property right, namely absolute ownership (what the Romans called ‘ dominium’ ), but with a limited list (‘ numerus clausus ‘) of exceptional property rights which are less than full ownership, and which operate as rights against property belonging to others (“ iura in re aliena “). The common law had (and has) no principle of dominium , and thus no numerus clausus of exceptions to it either. It simply allows the fragmentation of ownership of land into a range of smaller bundles of rights, called estates and interests in land. But land was the only long-term store of value in medieval times, and the English feudal system similarly recognised only a small number of such estates and interests in it. So, stability was “baked in” to the common law property system: see eg Hill v Tupper (1863) 1 H & N 121 , 127-128. But (unlike the civilian numerus clausus ) in the common law world further property rights have been recognised from time to time. It should, however, be added that, since section 1 of the Law of Property Act 1925 was enacted, new estates and interests in land can no longer be created at law. But the existence and protean nature of the trust, giving the owner power to tailor (equitable) property interests to the precise needs of the situation, means that pressure to expand the list is nowadays very small.
- The need for stability for property rights, and the consequent small number of such rights, means that judicial decisions on such property rights acquire much greater significance in the construction of grants of such rights than in relation to contracts. In order to be able to advise clients as to their position when they acquire property which comes with or is subject to rights concerning third parties, lawyers must be able to rely on a settled approach to grants of such rights. As the late Prof Peter Birks once wrote, “The mission of property law is stability”. That settled approach is to be found in the caselaw.
Held that the claimant was not entitled to the relief sought and dismissed the claim.
This case concerned a right of way expressly granted “at all times and for all purposes”, in a 1972 conveyance, when the dominant land was agricultural. The issue for the Court was whether the right of way could continue to be enjoyed for the redevelopment of the dominant land for the purpose of two residential dwellings. The claimant contended that such user was outside the scope of the grant and/or constituted excessive user.
The director of the Defendant is Mark Stoneham. The grantees of the 1972 conveyance, containing the right of way, were Colin and Ivor Stoneham, Mark’s father and uncle. The Stoneham family has had a proprietary interest in the dominant land since approximately 1943 and it was used as an extension of their farm until around 1990. The Claimant purchased the servient land in 2014.
The claimant brought an action for declaratory and injunctive relief restraining the alleged increased use of the right of way. An interim injunction was granted by Mann J on 1 February 2021 which was continued by Zacaroli J, until final order in the claim, with limited exceptions: [2021] EWHC 1544 (Ch).
