Week 2 Flashcards
4 Jurisprudential Property theories
Labour theory
Social utility theory
Marxist theory
Economic analysis theory
Explain labour theory
- Labour Theory – John Locke – property was originally owned in common by men, social contract = handing over powers to gov’t in exchange to fundamental right
- Person has property right to the produce of their land, ones labour gave rise to natural right to that property
- Limited application to an industrial or service driven society where something produce may have been the product of multiple peoples labours
Explain social utility theory
• Social Utility Approach – Bentham
– “greatest happiness principle”, property ownership created happiness and wealth potential + laws are essential to property
• Believed pleasure was good and pain bad – therefore considered property ownership created happiness and an incentive for wealth creation which would benefit society also accepted private property ownership could create inequality
Explain Marxist theory;
• Marxist Approach – Karl Marx
– viewed from a labour perspective and it’s unequal distribution e.g. rich have large land poor have nothing. Marx wanted private property rights abolished and to redistribute wealth more equally
• Argued more worked on the land than those that owned the land (capitalists) creating an “imbalance of exploitation”
Explain economic analysis theory
- Economic Analysis Approach – Hardin / Posner – Allocation of resources.
- Highlighted how resources can be misallocated where there are no property rights
• ‘Taggerty of the common’ = land to which there is unrestricted access will eventually be destroyed as there is no disincentive to destruction of land driven by greed (e.g. one more cattle)
*therefore advocate for private property rights.
What is ‘property’
No one definition of property, no simply a ‘thing’
• Possession + control (Yanner V Eaton 1999 201 CLR) property in law = legal relationship with a thing
** Property is a comprehensive term that can be used to describe all or any of the very many different kinds of relationship between a person and a subject matter
Possession is fundamental to the law of property, to have possession one must have control of the thing that is required and intended
‘Control’ of a thing is required in order to possess
can acquire a right to possession:
• By sale
• Gift
• Taking possession
Control – physical control
Things that are attached to land are controlled by the possessor of the land
• Not Just a “thing” but consideration of control giving rise to different kinds of enforceable legal relationships determined by reference to the law and societal conditions
Explain notion of possession
Possession is fundamental to the law of property, to have possession one must have control of the thing that is required and intended
‘Control’ of a thing is required in order to possess
can acquire a right to possession:
• By sale
• Gift
• Taking possession
Control – physical control
Things that are attached to land are controlled by the possessor of the land
Intention to posses:
We also need an intention to possess the thing
• It is a property right (others cannot interfere with things you posses)
• Possession provides evidence of ownership
• Possession of a thing for a specific time period can become period
To have possession one must
control and have intention to posses the land (ownership not required)
Explain competing claims to possession
Difference between Ownership, Title and Possession:
Ownership
• Often includes the right to posses but not always
Title: • Right or entitlement to a thing • Documentary evidence of ownership • Registered title • Native title
Possession: • Acquired by consent • Temporary – bailment • Permanent • Acquired without consent
Competing claims to Possession:
• Members of society are under a legal duty not to interfere with others property rights
• If this duty Is breached it is a legal wrong – a tort
• Common torts relating to interference with possession:
Trespass – wrongful interference with other persons or their possession of their things interference must be direct and involuntary
Conversion – similar to trespass, does not apply to land. Unauthorised interference with others possessions
Detinue – doesn’t relate to land, interference with goods and cash, wrongful detention of goods, failure to deliver goods on demand.
Nuisance – smell, noise – interfere with neighbours enjoyment of property
Explain common torts relating to interference with possesion
Trespass – wrongful interference with other persons or their possession of their things interference must be direct and involuntary
Conversion – similar to trespass, does not apply to land. Unauthorised interference with others possessions
Detinue – doesn’t relate to land, interference with goods and cash, wrongful detention of goods, failure to deliver goods on demand.
Nuisance – smell, noise – interfere with neighbours enjoyment of property
Breach of duty:
Direct enforcement of the right – usually when party refuses to give up land
Injunction may be an option (trespass and conversion)
Order for specific recovery (Detinue)
explain boundaries and interferance
Boundaries + Interference: Ownership of airspace: • Airspace can be owned • Therefore, can an owner maintain an action in tort for trespass Ownership of subsoil:
The physical boundaries of a parcel of land will be determined by reference to the registered Torrens survey that is registered with respect to the lot
explain distribution of property
Distribution of Property: Public property: • Allocated to society as a whole • Large portion of Australia is publically owned as ‘crown land’ • Minerals located in private land
Private Property:
• Allocated to private persons
• Does private mean no government intervention? No, do not have absolute land as houses can be acquired by gov’t e.g. for rail
explain fixtures
Fixtures:
Something that is so attached to the land that it becomes part of the land, therefore transfer of title (house) includes all fixture
Tests for determining whether an object is a chattel or fixture:
• Degree of annexation
• Purpose of annexation
If an item is fixed to land to any extent other than resting on its own weight presumed to be a fixture
If an item is not a fixed but merely rests on it’s own weight = not a fixture, burden of proof lies on those who assert otherwise
Fixtures: Purpose of annexation: • Better enjoyment of the property • Nature of the property – what type of property e.g residential v commercial • Permanency • Function
Degree of annexation: • Removal would cause damage • Mode and structure • Removal damage • Removal would exceed costs
explain classifications of property
Classifications of property:
1. Real property:
• Incorporeal hereditaments – rights unable to be inherited
• Coporeal hereditaments – things able to be inherited e.g. fixtures
2. Personal property:
• Chattels real – leasehold interest
• Chattels personal – moveable
• Choses in possession – tangible items of personal property (e.g. chairs)
• Choses in auction – e.g. intangible rights e.g. debt, shares
