
- •Contents
- •Preface
- •Acknowledgments
- •Table of cases
- •Table of statutes
- •Table of statutory instruments
- •Table of treaties
- •Table of EC legislation
- •1 Property law: the issues
- •1.1. Basic definition
- •1.2. Illustrative example
- •1.2.1. John
- •1.2.1.1. The unexcised body cell and the question of ownership
- •1.2.1.2. John’s interest in the excised body cell
- •1.2.1.3. Continuity of interests and John’s interest in the cell line
- •1.2.1.4. Enforceability of John’s interest in the cell line
- •1.2.2. Dr A and Dr B and the acquisition and transmission of property interests
- •1.2.3. The drugs company: constraints on the exercise of property rights
- •Notes and Questions 1.1
- •2 What we mean by ‘property’
- •2.1. Introduction
- •2.1.1. Property as a relationship and as a thing
- •2.1.2. Conceptualising ‘things’
- •2.1.3. Distinguishing property rights from other rights relating to things
- •2.1.4. Rights and other entitlements: Hohfeld’s rights analysis
- •2.1.4.1. Rights and duties, privileges and no-rights
- •2.1.4.2. Privileges and no-rights, and powers and liabilities
- •Abandonment
- •Effect of restrictions on alienation rights
- •2.1.4.3. Powers and liabilities, immunities and disabilities
- •2.1.5. Hohfeldian analysis of dynamic property relationships
- •2.1.5.1. Stage 1: Before the grant of the option
- •2.1.5.2. Stage 2: Grant of the option
- •2.1.5.3. Stage 3: Exercise of the option
- •2.1.6. Property rights, property interests and ownership
- •Notes and Questions 2.1
- •2.2. Private property, communal property, state property and no property
- •2.2.1. Introduction
- •2.2.2.1. No-property: ownerless things
- •2.2.2.2. Open access communal property
- •Distinction between open access and limited access communal property
- •Distinction between open access communal property and no property
- •Distinction between open access communal property and state property
- •Distinction between allocation and provision of resources
- •Regulation of communal property
- •2.2.2.3. Limited access communal property
- •Distinction between communal property and co-ownership
- •Particular use rights rather than general use rights
- •2.2.2.4. State property
- •2.2.2.5. Anticommons property
- •2.3. Economic analysis of property rights
- •2.3.1. What economic analysis seeks to achieve
- •Notes and Questions 2.2
- •2.3.2. Key concepts in the economic analysis of property rights
- •2.3.2.1. Externalities
- •2.3.2.2. Transaction costs
- •Imperfect information
- •Costs of collective action
- •Free-riders and holdouts
- •2.3.2.3. Efficiency
- •Value
- •Pareto efficiency
- •Kaldor-Hicks efficiency
- •2.4. Things as thing and things as wealth
- •2.4.1. Functions of things
- •2.4.2. The idea of a fund
- •2.4.3. Thing versus wealth
- •2.4.4. Related conceptions
- •2.4.4.1. Fungibles and non-fungibles
- •2.4.4.2. ‘Use value’ and ‘exchange value’
- •2.4.4.3. Property and personhood
- •Use value/exchange value
- •A functional distinction
- •Notes and Questions 2.3
- •3 Justifications for property rights
- •3.1. Introduction: general and specific justifications
- •3.2. Economic justification of property rights
- •3.2.1. Property and scarcity
- •Notes and Questions 3.1
- •3.2.2. Viability of single property systems
- •3.2.3. Criteria for measuring the success of a particular form of ownership
- •3.3. John Locke’s justification for private property
- •3.3.1. What Locke was attempting to establish
- •3.3.2. The political context
- •3.3.3. The problem of consent
- •3.3.4. Locke’s justification for original acquisition
- •3.3.5. The nature of Locke’s commons
- •3.3.6. Why mixing labour with a thing should give rise to entitlement
- •3.3.7. The sufficiency proviso
- •3.3.8. The spoilation proviso
- •3.3.9. The theological dimension to Locke’s theory
- •3.3.10. Present relevance of Locke’s theory
- •Notes and Questions 3.2
- •4 Allocating property rights
- •4.1. Introduction
- •4.2. The first occupancy rule
- •4.2.1. Intuitive ordering
- •4.2.2. Preservation of public order
- •4.2.3. Simplicity
- •4.2.4. Signalling
- •4.2.5. The bond between person and possessions
- •4.2.6. The libertarian justification
- •4.2.7. The communitarian objection
- •4.2.8. Economic efficiency
- •Notes and Questions 4.1
- •4.3. New things
- •Notes and Questions 4.2
- •4.4. Capture
- •Notes and Questions 4.3
- •5.2. Iron-holds-the-whale
- •5.3. Split ownership
- •4.5. Colonisation and property rights
- •4.5.1. Introduction
- •4.5.2. The Milirrpum decision and the doctrine of terra nullius
- •4.5.3. Mabo (No. 2)
- •4.5.3.1. Terra nullius
- •4.5.3.2. Property, sovereignty and the doctrine of radical title
- •4.5.3.3. Extinguishment
- •Express extinguishment
- •Implied extinguishment by inconsistent grant
- •Abandonment
- •Surrender but not alienation
- •Notes and Questions 4.4
- •4.5.4. Developments since Mabo (No. 2)
- •5 Personal and proprietary interests
- •5.1. Characteristics of proprietary interests
- •5.1.1. General enforceability
- •5.1.2. Identifiability of subject-matter
- •5.1.2.1. The basic principle
- •5.1.2.2. Fluctuating assets
- •5.1.3. Significance of alienability
- •5.1.3.1. Inalienability of communal property
- •5.1.3.2. Status rights
- •5.1.3.3. Appurtenant rights
- •5.1.4. Requirement for certainty
- •5.1.5. The numerus clausus of property interests
- •5.1.6. Vindication of property rights
- •5.1.7. Termination
- •5.1.7.1. Abandonment
- •5.1.7.2. Disclaimer
- •5.1.7.3. Forfeiture
- •5.1.8. Property rights and insolvency
- •5.2. Special features of communal property rights
- •5.2.1. Present scope of communal property
- •5.2.1.1. Rights of common
- •5.2.1.2. Customary rights
- •Notes and Questions 5.1
- •5.3. Aboriginal land rights
- •5.3.1. Nature of native title
- •5.3.2. Alienability
- •5.3.3. Abandonment
- •5.3.4. Variation
- •5.3.5. Extent of native title
- •5.3.6. Is native title proprietary?
- •5.3.6.1. Blackburn J’s view in Milirrpum
- •5.3.6.2. The view of the High Court in Mabo (No. 2)
- •5.3.6.3. The Canadian view
- •Notes and Questions 5.2
- •6 Ownership
- •6.1. The nature of ownership
- •6.1.1. The basis of ownership
- •6.1.1.1. Ownership and people
- •6.1.1.2. Ownership and things
- •6.1.2. An outline of the difficulties encountered in any consideration of ownership
- •6.1.2.1. The different meanings of ownership
- •6.1.2.2. Disagreements about ownership
- •6.1.2.3. Contradictions within ownership
- •6.1.2.4. The division of ownership
- •Between different types of owner
- •Between owners and non-owners
- •Notes and Questions 6.1
- •Notes and Questions 6.2
- •6.2. The contents of ownership
- •Notes and Questions 6.3
- •Notes and Questions 6.4
- •6.3. The roles played by ownership
- •6.3.1. As a legal term of art
- •6.3.1.1. Ownership’s role in land
- •6.3.1.2. Ownership’s role in chattels
- •6.3.1.3. Ownership’s role in legislation
- •6.3.2. As an amorphous notion
- •6.3.2.1. Ownership as an organising idea
- •6.3.2.2. Ownership as a contested concept
- •6.4. The limitations of ownership
- •6.4.1. Nuisance
- •6.4.1.1. A brief introduction to nuisance
- •Public nuisance
- •Private nuisance
- •6.4.1.2. The requirements of private nuisance
- •6.4.1.3. Private nuisance and private property
- •What is protected?
- •6.4.1.4. The allocation of entitlements
- •The traditional criteria
- •The role of the market
- •The role of public policy
- •6.4.1.5. The protection of entitlements
- •Property rules
- •Liability rules
- •Rules of inalienability
- •Notes and Questions 6.5
- •Notes and Questions 6.6
- •Notes and Questions 6.7
- •Notes and Questions 6.8
- •Notes and Questions 6.9
- •A. Property and liability rules
- •B. Inalienable entitlements
- •Notes and Questions 6.10
- •6.5. Restrictive covenants
- •Notes and Questions 6.11
- •Notes and Questions 6.12
- •7 Possession
- •7.1. The nature of possession
- •7.1.1. Introduction
- •7.1.2. Possession, ownership and proprietary interests
- •7.1.3. What is possession?
- •7.1.3.1. Factual control
- •The relevance of title
- •The nature of the thing possessed
- •The purpose for which the thing is used
- •Control through agents and control of contents
- •7.1.3.2. Intention required
- •Intention to exclude
- •Effect of ignorance
- •Notes and Questions 7.1
- •7.2. Possession of land
- •7.2.1. Leases and licences
- •7.2.1.1. Why the distinction matters
- •7.2.1.2. Distinguishing leases from licences
- •Notes and Questions 7.2
- •7.2.2. Possession and particular use rights
- •7.2.2.1. General and particular use rights
- •7.2.2.2. Compatibility of particular and general use rights
- •7.3. Possession of goods: bailment
- •7.3.1. Nature of bailment
- •7.3.2. Rights, duties and obligations of bailor and bailee
- •7.4. Protection of possession
- •7.4.1. Protection of property rights by protection of possession
- •7.4.2. Tort and the protection of property rights
- •7.4.2.1. The role of tort in the protection of property rights
- •7.4.2.2. Scope of the property torts
- •Conversion
- •What amounts to a conversion of goods?
- •Remedies
- •Trespass
- •What amounts to trespass
- •Remedies
- •7.4.3. Self-help remedies
- •7.4.3.1. Survival of self-help remedies
- •7.4.3.2. Restrictions and deterrents
- •7.4.4. Unlawful eviction and harassment
- •7.4.5. Trespassing and the criminal law
- •Notes and Questions 7.3
- •8 Fragmentation of ownership
- •8.1. Introduction
- •8.2. Present and future interests
- •8.2.1. Interests in possession, in reversion and in remainder
- •8.2.2. Absolute entitlements, contingent entitlements and mere expectancies
- •8.2.2.1. Absolute entitlements
- •8.2.2.2. Contingent interests and expectancies
- •8.2.2.3. Alternative contingencies
- •8.2.3. When interests vest
- •8.2.4. Alienation, management and control
- •8.2.5. Interests of contingent duration
- •8.2.5.1. Determinable interests
- •8.2.5.2. Interests subject to a condition subsequent
- •8.2.5.3. Distinguishing determinable and forfeitable interests
- •8.2.6. Requirement of certainty
- •8.2.7. Successive interests in land and the doctrine of tenures and estates
- •8.2.7.1. Tenures and estates
- •8.2.7.2. Estates in particular use rights
- •8.2.7.3. Leases
- •8.2.8. Restrictions on the power to create future interests
- •8.3. Legal and equitable interests
- •8.3.1. Origin of the legal/equitable distinction
- •8.3.1.1. Failed formality interests
- •8.3.1.2. Novel interests
- •8.3.2. Legal and equitable interests now
- •8.3.2.1. Interests in land
- •8.3.2.2. Interests in goods
- •8.3.3. The significance of the legal/equitable distinction
- •8.3.4. Three common fallacies
- •8.3.4.1. Equitable interests and beneficial interests
- •8.3.4.2. Over-identification of equitable interests with trusts
- •8.3.4.3. Absolute ownership does not include equitable beneficial ownership
- •Notes and Questions 8.1
- •8.4. Fragmentation of management, control and benefit
- •8.4.1. Corporate property holding
- •8.4.2. Managerial property holding
- •8.4.2.1. Trust
- •The trustee
- •The settlor
- •The beneficiaries
- •8.4.2.2. Administration of property on death
- •8.4.2.3. Bankruptcy and liquidation
- •Notes and Questions 8.2
- •8.5. Group ownership
- •8.6. General and particular use rights
- •Notes and Questions 8.3
- •9 Recognition of new property interests
- •9.1. Why are certain interests regarded as property?
- •9.1.1. The function of property
- •9.1.1.1. As a means of allocating scarce resources
- •9.1.1.2. As an incentive to promote their management
- •9.1.1.3. As a moral, philosophical or political statement
- •9.1.2. The danger of property
- •9.1.3. The requirements of property
- •9.2. The dynamic nature of property
- •9.2.1. The recognition and limits of the covenant as a proprietary interest
- •Notes and Questions 9.1
- •9.2.2. The recognition of a proprietary right to occupy the matrimonial home
- •Notes and Questions 9.2
- •9.3. The general reluctance to recognise new property rights
- •9.3.1. The facts of Victoria Park Racing v. Taylor
- •9.3.2. The views of the majority
- •9.3.3. The views of the minority
- •9.3.4. The significance of the case
- •Notes and Questions 9.3
- •9.4. A comparative confirmation and an economic critique
- •Notes and Questions 9.4
- •9.5. The future of property
- •9.5.1. The new property thesis
- •Notes and Questions 9.5
- •Notes and Questions 9.6
- •10 Title
- •10.1. What we mean by ‘title’
- •10.2. Acquiring title: derivative and original acquisition of title
- •10.2.1. Derivative acquisition: disposition or grant
- •10.2.2. Original acquisition
- •10.3. Relativity of title
- •10.4. Proving title
- •10.4.1. Role of registration
- •10.4.2. Possession as a root of title
- •10.4.3. Provenance
- •10.4.4. Extinguishing title by limitation of action rules
- •10.4.5. Relativity of title and the ius tertii
- •10.5. The nemo dat rule
- •10.5.1. Scope of the nemo dat rule
- •10.5.2. General principles applicable to all property
- •10.5.2.1. Registration and the nemo dat rule
- •10.5.2.2. Dispositions to volunteers
- •10.5.2.3. Powers of sale
- •10.5.3. The application of the nemo dat rule to goods
- •10.5.4. The application of the nemo dat rule to money
- •10.5.5. The application of the nemo dat rule to land
- •10.5.5.1. The general principle
- •10.5.5.2. After-acquired property
- •10.5.5.3. Interests by estoppel
- •10.6. Legal and equitable title
- •11 Acquiring title by possession
- •11.1. Introduction
- •11.2. The operation of adverse possession rules
- •11.2.1. Unregistered land
- •11.2.2. Registered land
- •11.2.3. What counts as ‘adverse’ possession
- •11.2.4. Effect on third party interests
- •11.3. Why established possession should defeat the paper owner
- •11.4. Adverse possession and registration
- •11.5. Good faith and the adverse possessor
- •1. Tension between principle and proof
- •Notes and Questions 11.1
- •A. Lockean entitlement
- •B. Utilitarianism
- •C. Property and personhood
- •B. Property theory and adverse possession
- •Notes and Questions 11.2
- •Notes and Questions 11.3
- •Stale claims in registered land
- •Stale claims under the 2002 Act
- •Distinguishing the ‘good’ squatter from the ‘bad’ squatter
- •Problems of proof
- •Effect of the 2002 Act changes on the incidence of adverse possession
- •The incompatibility argument
- •Notes and Questions 11.4
- •11.6. Goods
- •11.6.1. Taking and theft
- •11.6.2. Protection of title by tort
- •11.6.3. The Limitation Act 1980 and title to goods
- •11.6.4. Finders
- •Notes and Questions 11.5
- •12 Transfer and grant
- •12.1. Derivative acquisition
- •12.2. Formalities
- •12.2.1. Nature and content of formalities rules
- •12.2.2. Registration and electronic transactions
- •12.2.3. Validity and enforceability against third parties
- •12.2.4. Effect of compliance on passing of title
- •12.2.5. Transactions excepted from formalities rules
- •12.2.5.1. Equitable modification of legal rules
- •12.2.5.2. Implied rights
- •12.2.5.3. Rights acquired by possession or prescription
- •12.2.6. Deeds and prescribed forms
- •12.2.7. Why have formalities rules
- •12.2.7.1. The evidentiary function
- •12.2.7.2. The cautionary function
- •12.2.7.3. The channelling function
- •12.2.7.4. Other functions
- •Clarifying terms
- •Publicity
- •State functions
- •12.2.8. Disadvantages
- •12.2.8.1. Hard cases
- •12.2.8.2. Costs
- •Notes and Questions 12.1
- •Notes and Questions 12.2
- •12.3. Contractual rights to property interests
- •12.3.1. Estate contracts and the rule in Walsh v. Lonsdale
- •12.3.2. Application to property other than land
- •12.3.3. The failed formalities rule
- •12.3.3.1. The general rule
- •12.3.3.2. The failed formalities rule as it applies to land
- •12.3.3.3. Failed formalities rule as it applies to other property
- •Notes and Questions 12.3
- •Notes and Questions 12.4
- •12.3.4. Options to purchase, rights of pre-emption and rights of first refusal
- •Notes and Questions 12.5
- •Notes and Questions 12.6
- •12.4. Unascertained property
- •12.4.1. The problem of identification
- •12.4.2. Unascertained goods
- •12.4.3. Other unascertained property
- •Notes and Questions 12.7
- •13 Acquiring interests by other methods
- •13.1. Introduction
- •13.2. The difference between adverse possession and prescription
- •13.3. Why long use should give rise to entitlement
- •13.4. Rationale
- •13.4.1. Ascendancy of the presumed grant rationale
- •13.4.2. Effect of the ‘revolting fiction’
- •13.5. When long use gives rise to a prescriptive right
- •13.5.1. The problem of negative uses
- •13.5.2. Rights that can be granted but not acquired by prescription
- •13.6. User as of right and the problem of acquiescence
- •13.7. The future of prescription
- •Recommendation in favour of abolition
- •Minority view in favour of retention
- •Notes and Questions 13.1
- •14 Enforceability and priority of interests
- •14.1. Rationale of enforceability and priority rules
- •14.2. Enforceability and priority rules
- •14.2.1. The basic rules
- •14.2.2. Impact of registration
- •Notes and Questions 14.1
- •14.3. The doctrine of notice
- •14.3.1. Notice
- •14.3.2. Good faith
- •14.3.3. Effectiveness of the doctrine of notice as an enforceability rule
- •Notes and Questions 14.2
- •14.4. Overreaching
- •14.4.1. Nature and scope of overreaching
- •14.4.2. Operation of overreaching
- •14.4.3. Overreaching the interests of occupying beneficiaries
- •14.4.4. Transactions capable of overreaching beneficiaries’ interests
- •14.4.5. The two-trustees rule
- •Introductory
- •Overreaching
- •Safeguard for beneficiaries
- •Change of circumstances
- •Protecting occupation of property
- •Principal recommendation
- •Notes and Questions 14.3
- •15 Registration
- •15.1. What are registration systems for?
- •15.2. Characteristics of the English land registration system
- •15.2.1. Privacy
- •15.2.2. Comprehensiveness
- •15.2.3. Boundaries
- •15.2.4. Restricted class of registrable interests
- •15.2.4.1. Distinguishing ‘substantive’ registration and ‘protection’ on the register
- •15.2.4.2. Registration
- •15.2.4.3. ‘Protection’ by notice or restriction
- •15.2.4.4. The overriding interest class
- •15.2.5. The mirror, curtain and guarantee principles
- •THE ‘MIRROR PRINCIPLE’
- •THE ‘CURTAIN PRINCIPLE’
- •15.2.6. Consequences of non-registration
- •Notes and Questions 15.1
- •Compulsory use of electronic conveyancing
- •Do-it-yourself conveyancing
- •The objective of the power
- •The application of the power
- •Notes and Questions 15.2
- •15.3. Enforceability and priority of interests under the Land Registration Act 2002
- •15.3.1. Registrable interests
- •15.3.2. All other interests
- •15.3.2.1. Enforceability
- •15.3.2.2. Priority
- •15.4. Overriding interests
- •15.4.1. Justifications for overriding interests
- •15.4.2. Principles to be applied
- •15.4.3. Overriding interests under the 2002 Act
- •15.4.4. Easements and profits
- •15.4.5. Interests of persons in actual occupation: the 1925 Act
- •15.4.5.1. What rights are covered?
- •5.4.5.2. Actual occupation
- •Physical presence
- •Personal occupation
- •Non-residential premises
- •15.4.6. Interests of persons in actual occupation: the 2002 Act
- •15.4.6.1. Causal link between interest and occupation
- •15.4.6.2. Meaning of ‘actual occupation’
- •15.4.6.3. The ‘notice’ element
- •15.4.6.4. Can minors be in actual occupation?
- •15.4.6.5. Occupation of part
- •15.4.7. Complexity
- •Notes and Questions 15.3
- •15.5. Indemnity
- •15.5.1. Function of indemnity
- •15.5.2. Shortfall in the provision of indemnity
- •15.5.3. Cost
- •17 Leases and bailment
- •17.1. Introduction
- •17.2. Leases and bailments compared
- •17.2.1. Consensuality
- •17.2.2. Contract
- •17.2.3. Enforcement
- •17.2.4. Duration and purpose
- •17.2.5. Beneficial use
- •17.2.6. Proprietary status
- •17.2.7. Inherent obligations of the possessor
- •17.3. Leases
- •17.3.1. Nature of the lease
- •17.3.1.1. Duration: the four basic categories
- •The legal position
- •Length of fixed-term leases in practice
- •Commonhold as an alternative to the long residential lease
- •Commercial premises
- •Assignment and premature termination of fixed-term lease
- •17.3.1.3. Periodic tenancies
- •Nature
- •Contractual fetters on notice to quit
- •17.3.1.4. Tenancy at will
- •Tenancy at sufferance
- •Notes and Questions 17.1
- •17.3.1.5. Certainty of duration
- •Notes and Questions 17.2
- •Passage 2
- •Passage 3
- •Passage 4
- •Notes and Questions 17.3
- •17.3.1.7. The tolerated trespasser status
- •Notes and Questions 17.4
- •Notes and Questions 17.5
- •17.3.2. Alienability
- •17.3.2.1. Inherent alienability
- •Alienability of tenant’s interest
- •Subleases and other derivative interests granted by the tenant
- •Effect of termination of lease on derivative interests
- •Alienability of landlord’s interest
- •Concurrent leases and other derivative interests granted by the landlord
- •17.3.2.2. Restrictions on alienability
- •17.3.2.3. Statutory control of contractual restrictions
- •Notes and Questions 17.6
- •17.3.3. Effect of alienation on enforceability
- •17.3.3.1. Introduction: the basic principle
- •Automatic transmission of benefit and burden of proprietary terms: the privity of estate principle
- •Post-assignment liability: the privity of contract principle
- •17.3.3.3. Derivative interest holders
- •17.4. Bailment
- •17.4.1. Essential features of bailment
- •17.4.2. Categories of bailment
- •17.4.3. Characteristics of bailment
- •17.4.4. Liabilities of the bailee
- •Notes and Questions 17.7
- •17.4.5. Is bailment proprietary?
- •17.4.5.1. Possession and exclusivity
- •17.4.5.2. Alienability
- •17.4.5.3. Enforceability against third parties
- •17.4.5.4. Other proprietary indicia
- •18 Security interests
- •18.1. The nature and function of security
- •18.1.1. Nature of security
- •18.1.1.1. Terminology problems
- •18.1.1.2. Legal and equitable rights to redeem
- •18.1.1.3. Creation, attachment and perfection of security
- •18.1.2. Function
- •18.1.2.1. Right of first recourse
- •18.1.2.2. Attachment to the asset
- •18.1.2.4. The hostage function
- •18.1.2.5. Signalling, monitoring and control
- •18.1.3. Efficiency
- •18.1.4. Use of security
- •18.2. Forms of security
- •18.2.1. Property transfer securities: the mortgage
- •18.2.2. Possessory securities: pledge or pawn
- •18.2.3. Hypothecations: the charge
- •18.2.4. Liens
- •18.2.5. Property retention securities
- •18.2.6. Charge by way of legal mortgage
- •Notes and Questions 18.1
- •18.3. Control over the terms of the relationship
- •18.3.1. Equitable supervisory jurisdiction
- •18.3.2. The Kreglinger principles
- •18.3.3. Statutory intervention
- •Notes and Questions 18.2
- •18.4. Enforcement of security
- •18.4.1. Remedies
- •18.4.2. Possession
- •18.4.3. Sale
- •18.4.3.1. When the power arises
- •18.4.3.2. When the power becomes exercisable
- •18.4.4. Duties on enforcement
- •General principles
- •The handling of arrears: initial action taken by lenders
- •Alleviating arrears problems
- •The levying of charges on accounts in arrear
- •Methods of obtaining possession
- •Proceeds of sale
- •Indemnity insurance
- •Loss recovery procedures
- •Notes and Questions 18.3
- •16 Co-ownership
- •16.1. Introduction
- •16.2.1. Basic concepts
- •OWNERSHIP IN COMMON
- •JOINT OWNERSHIP
- •CONCURRENT INTERESTS IN FINANCIAL ASSETS
- •CONCURRENT INTERESTS IN LAND
- •Notes and Questions 16.1
- •Unity of possession
- •Unity of interest
- •Unity of title
- •Unity of time
- •16.2.2. A comparison of joint tenancies and tenancies in common
- •16.2.2.1. Four unities versus one
- •Notes and Questions 16.2
- •16.2.2.2. The right of survivorship (and how to avoid it)
- •Severance at common law
- •16.2.2.3. Acting upon one’s share
- •16.2.2.4. Mutual agreement
- •16.2.2.5. Mutual conduct
- •16.2.2.6. Statutory severance
- •Notes and Questions 16.3
- •16.2.3. Use of co-owned property
- •16.2.3.1. Land
- •12 THE RIGHT TO OCCUPY
- •13 EXCLUSION AND RESTRICTION OF RIGHT TO OCCUPY
- •Notes and Questions 16.4
- •16.2.3.2. Chattels
- •Notes and Questions 16.5
- •16.2.4. Sale and other dispositions of co-owned property
- •16.2.4.1. Land
- •Notes and Questions 16.6
- •16.2.4.2. Chattels
- •16.3. Other forms of co-ownership
- •16.3.1. Commonhold
- •16.3.2. Unincorporated associations
- •Notes and Questions 16.7
- •16.3.3. Extending the limits of co-ownership: public trusts
- •Bibliography
- •Index

26Property Law
will sell to me and a duty to buy from you, both at that price. The constituents of my interest are different from what they were at Stage 2 and my interest accordingly is given a different name: I no longer have an option to purchase, I now have an estate contract. But notice that you have still not yet lost your power to sell to someone else. You still have the ability to transfer ownership to anyone else in the world. If at this stage you do in fact sell ownership to P for £3 m, the question of whether my estate contract is enforceable against him (i.e. whether his ownership is subject to a duty to sell ownership on to me for £2m) will again depend on whether the legal system chooses to classify estate contracts as property interests or purely personal interests. (In our jurisdiction, as we see in Chapter 12, options to purchase and estate contracts are property interests, but the legal system imposes a further condition before they become enforceable against someone who has purchased ownership: they must have been registered in a public register – for reasons which are obvious.)
2.1.6. Property rights, property interests and ownership
This brings us on to our final introductory point. It will now be apparent that, in many property relationships each party holds a complex of rights, privileges, duties, liabilities etc. in respect of the thing in question. Despite Hohfeld’s strictures, each of the constituent rights, privileges, powers and immunities can loosely but conveniently be called a ‘property right’ in the relevant thing. The whole complex of rights, duties etc. held by each party is a ‘property interest’ in the thing. Property interests are, therefore, complexes of rights, duties etc. held by a person in respect of a thing. In Chapter 1 we noted that the number of different ways in which rights, duties etc. in relation to things can be combined to form property interests is strictly limited. In our jurisdiction there is a relatively short list of recognised property interests, ranging from ownership (which is the most extensive) to such lesser interests as mortgages, easements and charges. The list is exhaustive but expandable: it is always open to Parliament to add a new type of property interest at any time, and on occasions the courts will do so too, either overtly or in the guise of ‘discovering’ that a claimed type of interest was there on the list all along. We look at this process again in Chapter 9.
Extract 2.1 W. N. Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16
F U N D A M E N T A L J U R A L R E L A T I O N S C O N T R A S T E D W I T H O N E A N O T H E R
One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to ‘rights’ and ‘duties’, and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, ‘future’ interests, corporate interests,

What we mean by ‘property’ 27
etc. Even if the difficulty related merely to inadequacy and ambiguity of terminology, its seriousness would nevertheless be worthy of definite recognition and persistent effort towards improvement; for in any close reasoned problem, whether legal or nonlegal, chameleon-hued words are a peril both to clear thought and to lucid expression. As a matter of fact, however, the above-mentioned inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions. That this is so may appear in some measure from the discussion to follow.
The strictly fundamental legal relations are, after all, sui generis; and thus it is that attempts at formal definition are always unsatisfactory, if not altogether useless. Accordingly, the most promising line of procedure seems to consist in exhibiting all of the various relations in a scheme of ‘opposites’ and ‘correlatives’, and then proceedings to exemplify their individual scope and application in concrete cases. An effort will be made to pursue this method:
|
Opposites |
|
Correlatives |
|
|
|
|
Right |
No-right |
Right |
Duty |
Privilege |
Duty |
Privilege |
No-right |
Power |
Disability |
Power |
Liability |
Immunity |
Liability |
Immunity |
Disability |
|
|
|
|
|
|
|
|
R I G H T S A N D D U T I ES
As already intimated, the term ‘rights’ tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense . . .
Recognizing, as we must, the very broad and indiscriminate use of the term ‘right’, what clue do we find, in ordinary legal discourse towards limiting the word in question to a definite and appropriate meaning? That clue lies in the correlative ‘duty’, for it is certain that even those who use the word and the conception ‘right’ in the broadest possible way are accustomed to thinking of ‘duty’ as the invariable correlative. As said in Lake Shore and MSR Co. v. Kurtz, 10 Ind App 60 (1894):
A duty or a legal obligation is that which one ought or ought not to do. ‘Duty’ and ‘right’ are correlative terms. When a right is invaded, a duty is violated.
In other words, if X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty towards X to stay off the place. If, as seems desirable, we should seek a synonym for the term ‘right’ in this limited and proper meaning, perhaps the word ‘claim’ would prove the best . . .
P R I V I L E G E S A N D ‘ N O - R I G H T S ’
As indicated in the above scheme of jural relations, a privilege is the opposite of a duty, and the correlative of a ‘no-right’. In the example last put, whereas X has a right or

28 Property Law
claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off. As indicated by this case, some caution is necessary at this point; for, always, when it is said that a given privilege is the mere negation of a duty, what is meant, of course, is a duty having a content or tenor precisely opposite to that of the privilege in question. Thus, if, for some special reason, X has contracted with Y to go on the former’s own land, it is obvious that X has, as regards Y, both the privilege of entering and the duty of entering. The privilege is perfectly consistent with this sort of duty, for the latter is of the same content or tenor as the privilege; but it still holds good that, as regards Y, X’s privilege of entering is the precise negation of a duty to stay off. Similarly, if A has not contracted with B to perform certain work for the latter, A’s privilege of not doing so is the very negation of a duty of doing so. Here again the duty contrasted is of a content or tenor exactly opposite to that of the privilege.
Passing now to the question of ‘correlatives’, it will be remembered, of course, that a duty is the invariable correlative of that legal relation which is most properly called a right or claim. That being so, if further evidence be needed as to the fundamental and important difference between a right (or claim) and a privilege, surely it is found in the fact that the correlative of the latter relation is a ‘no-right’, there being no single term available to express the latter conception. Thus, the correlative of X’s right that Y shall not enter on the land is Y’s duty not to enter; but the correlative of X’s privilege of entering himself is manifestly Y’s ‘no-right’ that X shall not enter.
In view of the considerations thus far emphasized, the importance of keeping the conception of a right (or claim) and the conception of a privilege quite distinct from each other seems evident; and, more than that, it is equally clear that there should be a separate term to represent the latter relation. No doubt, as already indicated, it is very common to use the term ‘right’ indiscriminately, even when the relation designated is really that of privilege; and only too often this identity of terms has involved for the particular speaker or writer a confusion or blurring of ideas. Thus, Professor Holland, in his work on Jurisprudence, referring to a different and well-known sort of ambiguity inherent in the Latin ‘Ius’, the German ‘Recht’, the Italian ‘Diritto’, and the French ‘Droit’ – terms to express not only ‘a right’, but also ‘Law’ in the abstract – very aptly observes:
If the expression of widely different ideas by one and the same term resulted only in the necessity for . . . clumsy paraphrases, or obviously inaccurate paraphrases, no great harm would be done; but unfortunately the identity of terms seems irresistibly to suggest an identity between the ideas expressed by them.
Curiously enough, however, in the very chapter where this appears – the chapter on ‘Rights’ – the notions of right, privilege, and power seem to be blended, and that too, although the learned author states that ‘the correlative of . . . legal right is legal duty’, and that ‘these pairs of terms express . . . in each case the same state of facts viewed from opposite sides’. While the whole chapter must be read in order to appreciate the seriousness of this lack of discrimination, a single passage must suffice by way of example:

What we mean by ‘property’ 29
If . . . the power of the State will protect him in so carrying out his wishes, and will compel such acts or forbearances on the part of other people as may be necessary in order that his wishes may be so carried out, then he has a ‘legal right’ so to carry out his wishes.
The first part of this passage suggests privileges, the middle part rights (or claims), and the last part privileges.
Similar difficulties seem to exist in Professor Gray’s able and entertaining work on The Nature and Sources of Law. In his chapter on ‘Legal Rights and Duties’ the distinguished author takes the position that a right always has a duty as its correlative; and he seems to define the former relation substantially according to the more limited meaning of ‘claim’. Legal privileges, powers, and immunities are prima facie ignored, and the impression conveyed that all legal relations can be comprehended under the conceptions ‘right’ and ‘duty’. But, with the greatest hesitation and deference, the suggestion may be ventured that a number of his examples seem to show the inadequacy of such mode of treatment. Thus, e.g. he says:
The eating of shrimp salad is an interest of mine, and, if I can pay for it, the law will protect that interest, and it is therefore a right of mine to eat shrimp salad which I have paid for, although I know that shrimp salad always gives me the colic.
This passage seems to suggest primarily two classes of relations: first, the party’s respective privileges, as against A, B, C, D and others in relation to eating the salad, or, correlatively, the respective ‘no-rights’ of A, B, C, D and others that the party should not eat the salad; second, the party’s respective rights (or claims) as against A, B, C, D and others that they should not interfere with the physical act of eating the salad, or, correlatively, the respective duties of A, B, C, D and others that they should not interfere.
These two groups of relations seem perfectly distinct; and the privileges could, in a given case, exist even though the rights mentioned did not. A, B, C, and D, being the owners of the salad, might say to X: ‘Eat the salad, if you can; you have our license to do so, but we don’t agree not to interfere with you.’ In such a case, the privileges exist, so that, if X succeeds in eating the salad, he has violated no rights of any of the parties . . .
But it is equally clear that, if A had succeeded in holding so fast to the dish that X couldn’t eat the contents, no right of X would have been violated.
Perhaps the essential character and importance of the distinction can be shown by a slight variation of the facts. Suppose that X, being already the legal owner of the salad, contracts with Y that he (X) will never eat this particular food. With A, B, C, D and others no such contract has been made. One of the relations now existing between X and Y is, as a consequence, fundamentally different from the relation between X and A. As regards Y, X has no privilege of eating the salad; but as regards A or any of the others, X has such a privilege. It is to be observed incidentally that X’s right that Y should not eat the food persists even though X’s own privilege of doing so has been extinguished.
On grounds already emphasized, it would seem that the line of reasoning pursued by Lord Lindley in the great case of Quinn v. Leathem [1901] AC 495 [a trade union

30 Property Law
case, where a union leader threatened industrial action against one of the customers of a butcher, to persuade the customer to stop doing business with the butcher, because the butcher refused to sack all his non-union employees and employ union members instead; the butcher sued the union leader] is deserving of comment:
The plaintiff [the butcher] had the ordinary rights of the British subject. He was at liberty to earn his living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved the liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty except so far as his own liberty of action may justify him in so doing. But a person’s liberty or right to deal with others is nugatory unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him.
A ‘liberty’ considered as a legal relation (or ‘right’ in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege; and certainly that is the fair connotation of the term as used the first three times in the passage quoted. It is equally clear, as already indicated, that such a privilege or liberty to deal with others at will might very conceivably exist without any peculiar concomitant rights against ‘third parties’ as regards certain kinds of interference. Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits. The only correlative logically implied by the privileges or liberties in question are the ‘no-rights’ of ‘third parties’. It would therefore be a non sequitur to conclude from the mere existence of such liberties that ‘third parties’ are under a duty not to interfere, etc. Yet, in the middle of the above passage from Lord Lindley’s opinion there is a sudden and question-begging shift in the use of terms. First, the ‘liberty’ in question is transmuted into a ‘right’; and then, possibly under the seductive influence of the latter work, it is assumed that the ‘correlative’ must be ‘the general duty of every one not to prevent’, etc.
Another interesting and instructive example may be taken from Lord Bowen’s oftquoted opinion in Mogul Steamship Co. v. McGregor (1889) 23 QBD 59:
We are presented in this case with an apparent conflict or antinomy between two rights that are equally regarded by the law – the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others.
As the learned judge states, the conflict or antinomy is only apparent; but this fact seems to be obscured by the very indefinite and rapidly shifting meanings with which the term ‘right’ is used in the above quoted language. Construing the passage as a whole, it seems plain enough that by ‘the right of the plaintiffs’ in relation to the defendants a legal right or claim in the strict sense must be meant; whereas by ‘the right of the defendants’ in relation to the plaintiffs a legal privilege must be intended. That

What we mean by ‘property’ 31
being so, the ‘two rights’ mentioned in the beginning of the passage, being respectively claim and privilege, could not be in conflict with each other. To the extent that the defendants have privileges the plaintiffs have no rights; and, conversely, to the extent that the plaintiffs have rights the defendants have no privileges (‘no privilege’ equals duty of opposite tenor).
Thus far, it has been assumed that the term ‘privilege’ is the most appropriate and satisfactory to designate the mere negation of duty. Is there good warrant for this? . . . The closest synonym of legal ‘privilege’ seems to be legal ‘liberty’ or legal ‘freedom’. This is sufficiently indicated by an unusually discriminating and instructive passage in Mr Justice Cave’s opinion in Allen v. Flood [1898] AC 1 at 29:
The personal rights with which we are most familiar are: 1. Rights of reputation; 2. Rights of bodily safety and freedom; 3. Rights of property; or, in other words, rights relating to mind, body and estate . . . In my subsequent remarks the word ‘right’ will, as far as possible, always be used in the above sense; and it is the more necessary to insist on this as during the argument at your Lordships’ bar it was frequently used in a much wider and more indefinite sense. Thus it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty to fire off a gun, so long as he does not violate or infringe any one’s rights in doing so, which is a very different thing from a right, the violation or disturbance of which can be remedied or prevented by legal process.
While there are numerous other instances of the apt use of the term ‘liberty’, both in judicial opinions and in conveyancing documents it is by no means so common or definite a word as ‘privilege’. The former term is far more likely to be used in the sense of physical or personal freedom (i.e. absence of physical restraint), as distinguished from a legal relation; and very frequently there is the connotation of general political liberty, as distinguished from a particular relation between two definite individuals . . .
P O W E R S A N D LI A B I L I T I ES
As indicated in the preliminary scheme of jural relations, a legal power (as distinguished, of course, from a mental or physical power) is the opposite of legal disability, and the correlative of legal liability. But what is the intrinsic nature of a legal power as such? Is it possible to analyze the conception represented by this constantly employed and very important term of legal discourse? Too close an analysis might seem metaphysical rather than useful; so that what is here presented is intended only as an approximate explanation, sufficient for all purposes.
A change in a given legal relation may result (1) from some superadded fact or group of facts not under the volitional control of a human being (or human beings); or
(2) from some superadded fact or group of facts which are under the volitional control of one or more human beings. As regards the second class of cases, the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem.

32 Property Law
This second class of cases – powers in the technical sense – must now be further considered. The nearest synonym for any ordinary case seems to be (legal) ‘ability’ – the latter being obviously the opposite of ‘inability’, or ‘disability’. The term ‘right’, so frequently and loosely used in the present connection is an unfortunate term for the purpose – a not unusual result being confusion of thought as well as ambiguity of expression. The term ‘capacity’ is equally unfortunate; for, as we have already seen, when used with discrimination, this word denotes a particular group of operative facts, and not a legal relation of any kind.
Many examples of legal powers may readily be given. Thus, X, the owner of ordinary personal property ‘in a tangible object’ has the power to extinguish his own legal interest (rights, powers, immunities, etc.) through that totality of operative facts known as abandonment; and – simultaneously and correlatively – to create in other persons privileges and powers relating to the abandoned object – e.g. the power to acquire title to the latter by appropriating it. Similarly, X has the power to transfer his interest to Y – that is, to extinguish his own interest and concomitantly create in Y a new and corresponding interest. So also X has the power to create contractual obligations of various kinds. Agency cases are likewise instructive . . . The creation of an agency relation involves, inter alia, the grant of legal powers to the so-called agent, and the creation of correlative liabilities in the principal. That is to say, one party, P, has the power to create agency powers in another party, A – for example, the power to convey P’s property, the power to impose (so-called) contractual obligations on P, the power to discharge a debt owing to P, the power to ‘receive’ title to property so that it shall vest in P, and so forth . . .
Essentially similar to the powers of agents are powers of appointment in relation to property interests. So, too, the powers of public officers are, intrinsically considered, comparable to those of agents – for example, the power of a sheriff to sell property under a writ of execution. The power of a donor, in a gift causa mortis, to revoke the gift and divest the title of the donee is another clear example of the legal quantities now being considered; also a pledgee’s statutory power of sale.
As regards all the ‘legal powers’ thus far considered, possibly some caution is necessary. If, for example, we consider the ordinary property owner’s power of alienation, it is necessary to distinguish carefully between the legal power, the physical power to do the things necessary for the ‘exercise’ of the legal power, and, finally, the privilege of doing these things – that is, if such privilege does really exist. It may or may not. Thus, if X, a landowner, has contracted with Y that the former will not alienate to Z, the acts of X necessary to exercise the power of alienating to Z are privileged as between X and every party other than Y; but, obviously, as between X and Y, the former has no privilege of doing the necessary acts; or conversely, he is under a duty to Y not to do what is necessary to exercise the power.
In view of what has already been said, very little may suffice concerning a liability as such. The latter, as we have seen, is the correlative of power, and the opposite of immunity (or exemption). While no doubt the term ‘liability’ is often loosely used as a synonym for ‘duty’, or ‘obligation’, it is believed, from an extensive survey of judicial precedents, that the connotation already adopted as most appropriate to the word in

What we mean by ‘property’ 33
question is fully justified . . . Perhaps the nearest synonym of ‘liability’ is ‘subjection’ or ‘responsibility’. As regards the latter word, a passage from Mr Justice Day’s opinion in McElfresh v. Kirkendall, 36 Iowa 224, 226 (1873) is interesting:
The words ‘debt’ and ‘liability’ are not synonymous, and they are not commonly so understood. As applied to the pecuniary relations of the parties, liability is a term of broader significance than debt . . . Liability is responsibility.
. . .
I M M U N I T I E S A N D D I S A B I L I T I E S
As already brought out, immunity is the correlative of disability (‘no-power’), and the opposite, or negation, of liability. Perhaps it will also be plain, from the preliminary outline and from the discussion down to this point, that a power bears the same general contrast to an immunity that a right does to a privilege. A right is one’s affirmative claim against another, and a privilege is one’s freedom from the right or claim of another. Similarly, a power is one’s affirmative ‘control’ over a given legal relation as against another; whereas an immunity is one’s freedom from the legal power or ‘control’ of another as regards some legal relation.
A few examples may serve to make this clear. X, a landowner, has, as we have seen, power to alienate to Y or to any other ordinary party. On the other hand, X has also various immunities as against Y, and all other ordinary parties . . . For Y is under a disability (i.e. he has no power) so far as shifting the legal interest either to himself or to a third party is concerned; and what is true of Y applies similarly to everyone else who has not by virtue of special operative facts acquired a power to alienate X’s property. If, indeed, a sheriff has been duly empowered by a writ of execution to sell X’s interest, that is a very different matter: correlative to such sheriff’s power would be the liability of X – the very opposite of immunity (or exemption). It is elementary, too, that, as against the sheriff, X might be immune or exempt in relation to certain parcels of property, and be liable as to others. Similarly, if an agent has been duly appointed by X to sell a given piece of property, then, as to the latter, X has, in relation to such agent, a liability rather than an immunity.
. . . [T]he word ‘right’ is overworked in the field of immunities as elsewhere . . .
[T]he best synonym is, of course, the term ‘exemption’. It is instructive to note, also, that the word ‘impunity’ has the same connotation . . .
In the latter part of the preceding discussion, eight conceptions of the law have been analyzed and compared in some detail, the purpose having been to exhibit not only their intrinsic meaning and scope, but also their relations to one another and the methods by which they are applied, in judicial reasoning, to the solution of concrete problems of litigation. Before concluding this branch of the discussion a general suggestion may be ventured as to the great practical importance of a clear appreciation of the distinctions and discriminations set forth. If a homely metaphor be permitted, these eight conceptions – rights and duties, privileges and no-rights, powers and liabilities, immunities and disabilities – seem to be what may be called ‘the lowest common denominators of the