Property Theory Notes - Everything to do with propety law the entire course work PDF

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LAND LAW 1: PROPERTYTHEORYDr Busalile Jack Mwimali1. The Concept of Land as PropertyIntroductionLand law is the form of law that deals with the rights to use, alienate, or exclude others from land. In many jurisdictions, these species of property are referred to as real estate or real property, as d...

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LAND LAW 1: PROPERTY THEORY Dr Busalile Jack Mwimali

1. The Concept of Land as Property Introduction Land law is the form of law that deals with the rights to use, alienate, or exclude others from land. In many jurisdictions, these species of property are referred to as real estate or real property, as distinct from personal property. Land use agreements, including renting, are an important intersection of property and contract law. Encumbrance on the land rights of one, such as an easement, may constitute the land rights of another. Mineral rights and water rights are closely linked and often interrelated with the concept of land. Land rights are such a basic form of law that they develop even where there is no state to enforce them; for example, squatting, the occupation of land without ownership, is a globally ubiquitous and important form of land use.

Land as Property The centrality of land in the process of production means that land remains the major means of production as compared to the other factors. In the agricultural based economy, land assumes a greater significance because land is the main stay of our economy notwithstanding the emphasis placed on the drive towards industrialisation. Consequently all transactions that take place in relation to land are bound to be more complex than with other forms of property. There is hence the need to

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formulate an appropriate framework within which the obligations that arise are dealt with. Another characteristic that is peculiar to land as a form of property is its scarcity. Increasing population exerts pressures on land with various consequences resulting. Guaranteeing land or access thereto for the people becomes almost impossible. This means that land cannot just be treated like other species of property that one is conversant with. Inelasticity is another factor. It is the case that one cannot increase supply of land from what one has, it does not expand and so its availability in terms of supply remains virtually constant. That complicates matters and hence the need for regulation. Land unlike other types of properties has the capacity to accommodate various interests either simultaneously/concurrently or consecutively. Various interests may be conferred to different people without there being any conflict whatsoever. For example where there is a grant of leasehold interest carved out of a freehold. Again, there can be an easement such as a right of pathway in the same land and also a profit a prendre. Similarly, two persons can hold the same land as co-owners either as joint tenant or tenants in common. Land can also entertain simultaneous or successive interests such as life interest and a remainder thereto. The fact that land is attached to each other creates or gives rise to certain mutual rights and obligations, notable among such rights would be the right of support that my property which is adjacent to yours expects and is entitled to, those rights and obligations arise and they are enforceable at the behest of whichever party has been robbed. That places a complex scenario and there is a legal framework for determining what obligations will ensue by reason of these obligations. The fact that land is indestructible makes it unique in a sense. Although land is amenable to waste; it is virtually incapable of being completely destroyed.

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There is also the aspect relating to its ability to be conceptualised both in vertical and horizontal terms. The significance attached to this is understood when one considers the notion of property which means that contrary to traditional belief, it is possible to have within the same physical solum property that is suspended on top of 3 rd or 2nd floor owned by different people that is made possible through the concept of sectional property unlike in the past where a title document could only issue from a given area this was the traditional notion. It is now possible to have several titles depending on how many flats there are in one piece of land. There are certain things that have to be necessarily shared so there are rules that will regulate those arrangements; Facilities such as parking, pools etc. On account of the foregoing characteristics which are associated with land as a form of property, there are certain important issues which arise. These issues relate to: (i)

The manner in which land can be commoditized so that it is placed at par with any other forms of property that can be availed in the market; and

(ii)

The issue as to who exercises control over it.

In the context of development and administration of property rights, the first aspect can be construed as relating purely of the choice between operating an unregistered land system on the one hand, and operating a recorded or registered land system on the other. This boils down to no more than a comparative perspective of the merits and demerits of these two systems. The second aspect relating to control is related to the first one in the sense that it is the entity to which such responsibility falls that will ultimately regulate all manner of transactions or activities which may be undertaken in relation to land. In terms of regulations, one has to think about terms of levels that are created, the duties and obligations that arise and their enforcement so 3

that their involvement leads as back to the noted quality of land as a form of property.

The Idea of Property Ownership This part explores philosophical foundation and underpinnings of the concept of property ownership in its broadest form possible. We also seek out to analyse the fundamental elements and the essential particulars which are associated with the idea of property ownership and property as a concept. We further examine various rights duties and obligations attached to property ownership and identify the various conceptual bases of the notion of property and its ownership. We examine various mechanisms that are being designed to regulate issues touching on property rights. Ultimately we shall come up with the idea to formulate some appraisal or some sought of evaluation of the traditional arguments usually presented for or against the institution of property ownership.

This classification of property law and property theory is to purely facilitate appreciation of the various issues designated in land law. The corpus of what goes into land law is broad and the rules need a practical as well as a theoretical approach. The idea was to look at the foundation of property law and the other component was meant to take one beyond property transaction. What it enables us to do and how it does that. Property transaction was baptised property theory. The approach adopted here is to give reference points for each topic that we cover.

Fundamental Legal Conceptions Property Property in the abstract sense means ownership. It is derived from Latin proprius meaning one’s own. It is the relationship between an item and the holder of certain rights over it. The best way is to define property as a power relation; the relationship that a person has with an item; the nexus with the land. It may also be viewed as a stake that one has in the item. 4

Property may also be defined as a relationship of socially approved control of an item (Social legitimacy attaching to the claim in question [Gray & Gray core text p.27 etc. Seq.]) (i)

It is relative;

(ii)

It has gradation – the gradation may even vary over time e.g. Law of adverse possession, proprietary estoppel etc.)

(iii)

It falls from the maximum to a minimum value – From a fee simple to a licence. The power of one over property is not absolute; there may be gradation from a maximum value to a minimum value (i.e. from Fee simple, leasehold, easements etc.).

The Concept of a Right The general theory is that it becomes open for the subjects to rebel in the face of unreasonable promulgations issuing from the sovereign if the sovereign acts in excess of his authority. This clarifies the issue or the concept of a right and how it emerges up to the point where we want to relate it to issues of property. There is always a duty imposed invariably a duty as a correlation to a right in the scenario that we have just seen whereas the subjects are guaranteed their rights under conditions of life in civil society they are also duty bound to reciprocate to the extent that they cannot act as they had previously done. They are under a duty to obey. To every right attaches a correlative duty and that can manifest itself in a number of ways. In terms of general theory the idea of a right stands out as one of the most important notions in terms of explaining legal relations. Rights have duties which flow from them in the words of Lord Lloyds work titled the idea of law

As soon as a legal system arrives at the stage of development when it can yield to juristic analysis it will be found that the concepts of rights and duties form a pivotal point in the structure of the legal machinery by which the system is enabled to perform its social function. Those two raise the idea of rights and duties. 5

In the socialist systems the rights vests in corporate entities. We are talking of those legal rights that are capable of enforcement. The fundamental difference between these rights and other rights is that only those rights that have been accepted and agreed on as laws and written as a code that guides the society are the rights that we are talking about and not rights that emanate from our moral inclinations. The ultimate question still remains what is a right? It has been suggested that a right signifies an affirmative claim in favour of one as against another in respect of a given situation, object or thing in which the right holder has an interest. This signification of that affirmative claim in favour of one against another in relation to a given situation in which the right holder has an interest is called a right. It is important within any legal system from the standpoint of the definition because it is from the standpoint of such an understanding that we would then proceed to impose duties, obligations, create a number of requirements and impose them on others in the end the idea of a right boils down to whatever statement one can make about the quantum or range of activities which one will be permitted to do within the society or which a given society will permit its members as individuals or members to engage in or execute under any specified conditions or situations. Those permitted will have to be defined by rules of law which regulate the conduct of those members of the society. So that if we were to look at it from the standpoint that one has an affirmative claim over something it would necessarily imply that the person holds it as a right to act in a certain way in relation to a given situation. If it is given as of right there is a duty on the rest of the members of the society not to impeach the execution of the engaging of such a person in those permitted activities and there should be a sanction of sorts to punish or discourage those who are bent on infringing on those rights to the beneficiary

Rights Concept in the context of civil society The concept of the right is very much connected to the emergence of the civil society. The antecedent that is the position that was holding before 6

the emergence of that civil society is much different. The preponderant condition is that there was this order that everything became yours not because you owned it, developed it but because you could actually get it by force. In the absence of such order there was chaos and everybody was for himself and if one wanted to assert their claim for any property one had to go out there and sort it out with force. Sometimes individuals were pitted against one another in order to survive one had to withstand that condition. What developed could be described as rights. It was essentially your might that translated into what you ended up owning. One lived in constant fear of losing out to the mightier parties and the conditions of living were pitiful. Life according to Thomas Hobbes in his Discourse became impossible. Hobbes argues that it was very difficult for one to survive and life was cruel and brutish. Might = Right this was the state of life. Life was not conducive to people being productive because people lived under the threat of the absence of law and order. The choice of salvation vis-à-vis extinction arises from these conditions. People’s collective might so that each of them would forego the exercise of their own might in exchange of authority but instead each of them guaranteed some property rights that their property would not be taken away and that they would enjoy the fruits of their labour and the Social Contract arrived and from henceforth there was a three way transaction. Each individual was to renounce the use of individual might on condition that everyone did the same and with collective members of the society and the individual would not be outside this society and then ultimately the collective power of might would be ceded to exercise the same to the better of all. Social contract achieved to bring peace to all men and guaranteed them a number of benefits which were by far much more attractive. It is because of those dividends that the state of chaos was overcome. Expectation of peace and property was achieved by members of that society sitting together and reasoning and opting together out of chaos via the social contract. 7

The social contract is the of civil society and is predicated on a very simple understanding that the sovereign, the ultimate authority to whom all individuals cede their powers of might is a custodian of the society’s collective interests as it were. What is tolerated is only that which society accepts as right and there is an enforcing machinery to ensure that no one is promoted or looked upon with any favour. Society would define values and give them clothing of legitimacy and these would be deemed to be law giving rights. How much power do you give to the sovereign – the sovereign is understood to enjoy powers for this to work. The sovereign alone is in charge of promulgating the law so his word shall be law. The effect of ceding those powers to the sovereign was to enable him exercise the same for the benefit of the society and he can have the power to punish so that any promulgations emanating from the sovereign will be obeyed. The sovereign will issue orders to the subject and those orders are backed by coercive powers in the sense that you do not choose to obey or disobey the law. If you disobeyed you incur the wrath of punishment. Members of the

society

do

not

expect

the

sovereign

to

act

unreasonably.

Reasonableness of sovereign powers is a condition.

The Concept of Ownership 1.4.4.1. Jurisprudential foundations of property law/theories property law 

First Occupancy (First Possession)

First occupancy theory reflects the familiar concept of first-in-time: the first person to take occupancy or possession of something owns it. This theory is a fundamental part of property law today, often blended with other theories. One major drawback of this theory is that while it helps explain how property rights evolved, it does not adequately justify the existence of private property.

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

Labour-Desert Theory

The labour-desert theory posits that people are entitled to the property that is produced by their labour. There are several notable objections to this theory, one of which is that the theory assumes an infinite supply of natural resources. The labour theory of property or labour theory of appropriation or labour theory of ownership or labour theory of entitlement is a natural law theory that holds that property originally comes about by the exertion of labour upon natural resources. It is also called the principle of first appropriation or the homestead principle. In his Second Treatise on Government, the philosopher John Locke asked by what right an individual can claim to own one part of the world, when, according to the Bible, God gave the world to all humanity in common. He answered that persons own themselves and therefore their own labour. When a person works, that labour enters into the object. Thus, the object becomes the property of that person. Locke argued in support of individual property rights as "natural rights". Following the argument the fruits of one's labour are one's own because one worked for it. Furthermore the labourer must also hold a natural property right in the resource itself because - as Locke believes - exclusive ownership was immediately necessary for production. Jean-Jacques Rousseau later criticized this second step in Discourse on Inequality, where he effectively argues that the natural right argument does not extend to resources that one did not create. Both philosophers hold that the relation between labour and ownership pertains only to property that was un-owned before such labour took place. 

Utilitarianism

Traditional Theory - Under the traditional utilitarian theory, property exists to maximize the overall happiness or “utility” of all citizens. Accordingly, property rights are allocated and defined in the manner that best

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promotes the general welfare of society (The Bentham theory of utilitarianism). Law and Economics Approach - The law and economics approach incorporates economic

principles

into

utilitarian

theory.

This

view

essentially assumes that human happiness can be measured in dollars. Under this view, private property exists to maximize the overall wealth of society. Critics question the assumption that social value can be appropriately measured only by examining one’s willingness to pay.



Liberty or Civil Republican Theory

Liberty theory argues that the ownership of private property is necessary for democratic self-government. However, the influence of liberty theory has waned due to changing economic, political, and social conditions.



Personhood Theory

Personhood theory justifies private property as essential to the full development of the individual. Under this approach, some items are seen as so closely connected to a person’s emotional and psychological wellbeing that they virtually become part of the person, thereby justifying broad property rights over such items.

1.4.4.2. Incidents or Characteristics of Ownership An owner has the right to possess the object or thing owned the fact that he has parted with such an object or thing either by voluntarily divesting himself of the same or by being wrongfully being deprived does not derogate from the fact that he still remains the owner of such an object or thing with an immediate right to possession even in situations where the person gives out or loans out the object or thing to a friend the position remains that such a person retains the reversionary interest which is protected under the law and which ranks in his favour. That protection can be enforced e.g. the form of taking out a suit or legal action for damages occasion to the interests so protected or by the procurement of an injunction to stop any interference with the interests protected. 10

Most important characteristic of ownership is the owner’s right to possess the thing or object that is the subject matter of ownership and not even temporarily parting with the object denies him that right. The owner has also the right to use and enjoyment of the object or thing owned and in exercise of such right is free to determine or decide how the object or thing will be used and by whom. The owner is also entitled the receipt of income or some other benefits ...