What we mean by ‘property’ 39

property involve rights to make a particular use of a resource, rather than a right to do whatever the users want with the resource, and they tend also to be highly regulated. Sometimes regulation is by formal legal rules (which, for example, tell you quite explicitly what you can and cannot do in public parks or on public rights of way over private farmland) but it may also be by tacitly accepted conventions about behaviour, establishing, for example, that the first person to get to the bench may sit there for as long as she wants.

2.2.2.3. Limited access communal property

Limited access communal property (sometimes referred to as restricted access or closed access communal property) differs from open access communal property in that membership of the community is restricted to a specific class. Each member of the community accordingly has not only a privilege to use the resource (everyone else in the world, whether a member of the community or not, has no-right to object), and a right not to be excluded (giving everyone else a duty not to interfere with her access): she also has a right to exclude all non-members of the community.

Distinction between communal property and co-ownership

Limited access communal property is not the same as private co-ownership. Private co-owners are each individually identifiable, and each is entitled to an identifiable share in the resource, even if the share is not yet choate or severable. Members of a family, or a group of friends, or business associates, or members of a club, can hold property as private co-owners. If they do, each individual has a transmissible property interest, i.e. a power to assign their share to anyone else, although in practice they may contract with each other not to exercise the power (consider why). Members of a community, on the other hand, are identified by reference to a defining characteristic, and no individual member has a transmissible interest. If the residents of Lambeth have a right to play games on my field (as the inhabitants of Washington were held to have in the playing fields owned by the council in R. (Beresford) v. Sunderland City Council [2004] 1 AC 889) each resident has a right not to be excluded from the field, a privilege to use the field himself and a right to insist that no non-resident uses it, but he has that interest only because and for so long as he has the defining characteristic of residing in Lambeth. Consequently, he has no power to transfer his interest. If he tries to sell it to his aunt who lives in Wandsworth, the aunt will get nothing because she lacks the necessary characteristic of living in Lambeth; if on the other hand he tries to sell it to a fellow resident of Lambeth, he has nothing to give that the fellow resident does not already have.

However, although this distinction is clear in principle, in practice there are borderline institutions which do not fit easily into either category. We have already said that members of a club can be seen as private co-owners, each of whom has power to transmit her share in the club’s assets to outsiders but has contracted out of her privilege to do so vis-a`-vis the other members, and indeed this is the conventionally accepted legal analysis as we see in Chapter 16. However, there