Introduction to Property

The Meaning of Property The meaning of property is not constant Property a right, not a thing: to have a property is to have a right in the sense of an enforceable claim o Property is a claim that will be enforced by society or the state, by custom or convention or law o As a right, not a thing: a right in the sense of an enforceable claim to some use or benefit of something Common Property, Private Property, State Property o Society or the state may declare that something--for example, common lands, public parks, city streets, highways--are for common use The right to use them is then a property of individuals, in that each member of the society has an enforceable claim to use them o Common property is created by the guarantee to each individual that he will not be excluded from the use or benefit of something; private property is created by the guarantee that an individual can exclude others from the use or benefit of something Both kinds of property, being guarantees to individual persons, are individual rights Corporate property is thus an extension of the individual private property o State Property: consists of rights which the state has not only created but has kept for itself or has taken over from private individuals or corporations o Bundle of rights: legal title, the enforceable exclusive right, to or in the tangible thing The need for Justification Theories: o First, that property is a right in the sense of an enforceable claim; second, that while its enforceability is what makes it a legal right, the enforceability itself depends on a society's belief that it is a moral right o Property is not thought to be a right because it is an enforceable claim: it is an enforceable claim because it is thought to be a human right o If it is not justified, it does not remain property o Enforceable exclusive right The Case for Private Property (Article: "the Right to Private Property in a New Political Dispensation in South Africa" Private property dominates o Labour Theory: that everyone is entitled to the produce of her labour Difficulties: very few things are just produced by just one person o Individual's right: while it accounts for rights in personal items, it does not justifiy private property in resources required by the public Hegel

Economic theory: in favour of private property claims that maximum productivity is promoted by it: the person who makes the greatest profit is the person who has the greatest power to foresee demand Greater productivity prevails under individual ownership Utilitarian theories: these maintain that the total, or average, happiness of society will be greater if resources are owned and controlled by individuals (similar to economic theory) Equality and justice are not important considerations Rights-based approach: "one showing that an individual interest considered in itself is sufficiently important from a moral point of view to justify holding people to be under a duty to promote it" There are two rights-based arguments: Waldron shows that both approaches hold that individuals have an interest in owning things which is sufficiently important to command respect and to restrain governmental action 1. Locke: argues that the interest is one which people have only because of what they have done, or have acquired from someone else a. "Special Right" b. Private appropriation was the only way to meet human needs and that mixing of one's labour in itself gives rise to entitlement 2. Hegel: argues that this interest is a basic human interest a. "General Right" b. Property is needed by everyone for the development of freedom and personality c. Through owning and controlling property, an individual can embody his will in external objects, thus transcending the subjectivity of his existence d. Property is thus essential to human development and poverty of great concern

SingleVariable Essentialists

The single most important right the right to exclude paramount Necessary and sufficient the right to exclude Good example: unless you have my permission Without some mechanism of enforcement, there is no property View of the class: > a bit too narrow? >compelling re ownership? a. Indicates that that the right to exclude others is the irreducible attribute of property b. Under this conception, the right to exclude is both a necessary and sufficient condition of property c. "universally held to be a fundamental element of the property right" (U.S. Supreme Court)

Multiple Variable

right to exclude necessary but not sufficient A broader set of characteristics Honore- needs all of the 11 characteristics Blackstone: right to exclude, use & enjoy, transfer View of the class: >commercialism-use, ease of transferability >not adaptable >not many people will agree on a fixed set of characteristicshard to reach consensusmay work well on a theoretical level. a. Property is defined by multiple attributes or incidents b. Blackstone describes these multiple attributes as the rights of "free use, enjoyment, and disposal" c. The rights of "free use" and "enjoyment" are arguably redundant or at least largely overlapping d. "possession, use and disposition" or in other words, "rights to exclude, to use or enjoy and to transfer" e. Under this thought, the right to exclude is a necessary but not a sufficient condition of property f. Some other rights include: i. The right to possess ii. The right to use iii. The right to manage iv. The right to the income of the thing v. The right to the capital vi. The right to security vii. The incident of transmissibility viii. The incident of absence of term ix. The duty to prevent harm x. Liability to execution xi. The incident of residuary

Nominalism

Right to exclude is not necessary or sufficient Property as a purely conventional concept with no fixed meaning An empty vessel that can be filled by legal system + values + beliefs bundle of rights that changes with time Matter of social convention normative Meaning attributed to it Changes with values and beliefs, cultural conditions View of the Class: >good international application >may not be an universal value system that can be applied a. Very traditional thought b. Views property as a purely conventional concept with no fixed meaning c. An empty vessel that can be filled by each legal system in accordance with its peculiar values and beliefs
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Waldron & Katz: A possible 4th View

The person who has the bundle of rights has the say on who to exclude But the right to exclude is not necessary But Waldrondetermine how property to be used Katzagenda-setting

Sources of Canadian Property Law Aboriginal Law Borrows:

There were legal principles in place before the Europeans arrived in terms of property law His format follows a case brief as a vehicle to tell the story Very cursory Nanabush v. Deer, Wolfe et al.: this decision signifies an important principle in the development of Anishinabek environmental law The Anishinabek attributed some of their society's problems to the imbalance of the hunting relationship between humans and animals In this case, Nanabush failed to respect the dignity and body of the dear The majority decision in this case is a powerful precedent for Anishinabek people in governing their resources If Anishinabek do not honour and respect their promises, relations and environments, the eventual consequence is that these resources will disappear

A. Mills, Eagle Down is our Law: Witsuwit'en Laws, Feasts and Land Claims Mills:

The way inheritance works there A series of principles that differ from inheritance laws

Principles which govern not only human relations but the relations of humans to the land, to animals, and to the spirit world which sustains them all These laws define both how the people own and use the surface of the earth when they are dispersed on the territories and how they govern themselves and settle disputes when they are gathered together in the feast Law Of Matrilineage Matrilineal succession Our law is that you belong to your mother's side As a member, the actions taken by each individual affect the house and clan to which he or she belongs Inheritance takes place through the house and clan, and Witsuwit'en names and territories are inherited through the mother's side Marriage Laws One marries outside one's own house and clan It would also narrow the territory to which they would have use rights
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The husband's territory was different from his father-in-law's, the husband took his wife to his own territory and house From the woman's point of view, after marriage, the wife leaves her father's house and her father's territory and takes up residence in her husband's house A young woman often married her father's heir ensuring that the exchange between her mother's and father's side would be the same one that would operate today Laws regarding Ownership of Territory Under Witsuwit'en law, feast names are legally related to distinct territory The feast names are passed on from clan member to clan member--not to someone outside the clan Thus, a feast name is passed from uncle or aunt to niece or nephew--never father to son or daughter When the holder of a title dies, the title and the associated territory is passed on officially and formally One of the firmest laws in this law holds that you do not go on someone's territory where you do not belong without asking permission

English Law:

Based on the feudal system o Was a system of government and a method of holding property Passed down from series of tenants to series of other tenants

Feudal System: A possible illustration of relationships CROWN Tenant in chief (in capite) Mesne lords (both lord and vassal) Tenant in demesne (the vassal in possession of the land)

Free Tenures: Four Types of Needs 1. Security: in return for his feud (fee), the tenant agreed to furnish forty days of armed service to the lord per year 2. Splendor: lord bought these things with land and serjeantry tenure was the result. Examples of serjeantry included: butlers, cooks, sword bearers 3. Spirit: 4. Subsistence: for the crops and products of the soil without which life could not continue Unfree Tenures Copyhold was an unfree tenure and was reserved for those who actually tilled the soil In 1660, the State of Tenures marked the end of the strictly feudal period of English land law
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English Property Law and the Suppression of the Canadian Legal Identity (B. Ziff) For settled colonies...the general rule is that the laws of England form part of the laws of the colony in so far as these are applicable to conditions in the colony o Reasons as to why: Prudence points to the reception of a given rule when the absence of adoption creates uncertainty It is also convenient and pointless to reinvent the wheel The common law was viewed as encoding principles of universal justice Property Law in Australia Real/Personal Distinction: The distinctions between land and goods and between immovables and movables are based on the nature of the thing In contrast, the distinction between real and personal property is based on the nature of the right Real property: generally, the holder of the right could bring a real action to recover the land from someone who was wrongly in possession of it Personal property: there was no real action available to recover the thing itself; instead, the holder of a personal property right had a personal action to be compensated for the loss caused by the person who wrongly interfered with that right Legal/Equitable: Property rights can also be divided into legal and equitable rights Rights which could be enforced in those courts (such as King's Bench) are called legal rights Rights which could be enforced in the Chancery, but not in the common law courts, are called equitable rights o Can be created with less formality than the legal property right o Tend to be less durable than legal property rights o More easily extinguished by competing property rights to the same thing Two main difference are the manner of their creation and durability Tangible/Intangible: Tangible property rights include the right to possession of some thing, while intangible property rights do not Property Creating Events: Arise from four events: o Wrongs bribes o Consent Sale of goods, a bequest in a will or a grant of mortgage o Unjust enrichment Right to recover land or goods transferred by mistake o Others
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Includes the creation (and destruction) of property rights brought about by physical changes to things

Civil Law: Seigneurial system Quebec Act Why do we as a society value private property? (justification theories of property) Labour theory (John Locke): if you put some effort to developing property, then you as an individual should have a right over that property enforceable against people. Personality Theory (Hegel): the more personal the stronger the right. The fact that you have inflicted yourself onto that property. The property becomes reflective of yourself. Economic Theory: maximum productivity is achieved if each individual knows what they are entitled to. Utilitarian Theories: happiness of society will be greater if resources are owned and controlled by individuals. Rights-based Theory (Waldron): an individual interest considered in itself is sufficiently important from a moral point of view to warrant protection Who should have a right on property? Universal Declaration of Human Rights (1948), article 17 states "everyone has the right to own property alone as well as in association with others" Not a binding document, but universally may be respected. But, we do not have protection for private property included in our constitution Why did "enjoyment of property" disappear from the 1981 proposal for charter of rights section seven: The provincial governments opposed this because they wanted to be able to expropriate land/property if need be. Marital assets: explained in terms of wives who were going through divorce What about those who don't have a right on property? Special Rights vs. General Rights Special Rights: a property right to be acquired by an act for instance by labour, purchase or transmission through gift Only those who have actually acquired property through these instances should have "enforceable right to property" Entrenching special rights into charter Its going to be problematic: how are we going to allocate land What happens to people who have property already, especially those who worked hard already to maintain their property Unfair The same aim can be achieved through general rights
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Public spaces -can assist There are other opportunities available for individuals without property (buildings, washrooms) Most people have access to public land Waldron's argument that need property to "Act" not completely accurate Dont need unlimited access to land to "act"

General Rights: ideally, everybody, should have property Not a question of equality vs. equity Every individual should be entitled to HAVE A PROPERTY All those who have a special right in property now have benefited from a general right at some point Propertyless-still have public/common property As human beings, everyone should have a right to property Who should benefit from the special right? Why not all? Government already regulates how private property is used in the public interest Propertyless should be included in the discussion about public property Not necessarily should have an ownership to property, but some enjoyment of the property Property, Class and Poverty Public spaces are common property; they are areas that are generally characterized by the right of individuals not to be excluded Article #1: "Homelessness and the Issue of Freedom" (J. Waldron)

One of the functions of property rules, is to provide a basis for determining who is allowed to be where o When all else is privately owned, homeless must go on the sidewalks There are places where the homeless may be and, by virtue of that, there are actions they may perform; they are free to perform actions on the streets, parks and bridges--their freedom depends on common property in a way that ours does not Broad question of justice and social policy

Article #2: "Controlling Chronic Misconduct in City Spaces: Of Pandhandlers, Skid Rows and Public-Space Zoning" (R.C. Ellickson)

More problems in cities are leading to abandoned cities o Waste of resources that could be put to better use o Chronic street nuisance o People being annoyed o Annoyance accumulates overtime o Some chronic street offenders violate informal time limits o Red, yellow and green Red: signal extreme caution Normal standards for conduct in public spaces would be significantly relaxed
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Chronic panhandling and bench squatting Safe harbours for people prone to engage in disorderly conduct Yellow: some caution Lively mixing bowl Would have to curb street misbehaviour enough to make the great majority of citizens willing to enter these spaces without hesitation Constraints on excessive noise, drunkenness, and other disorderly conduct Chronic (but not episodic) panhandling and bench squatting Green: a promise of relative safety Frail elderly, children Relatively strict in its regulation Strict ban on panhandling and bench squatting

Article #3: "Private Needs and Public Space: Politics, Poverty, and Anti-Panhandling ByLaws in Canadian Cities"

Anti-panhandling by-laws impose restrictions on the time, place and manner in which panhandling can occur Restrictions on where it can occur

Article: T.W. Merrill, "Property and the Right to Exclude" The right to exclude others is one of the most essential sticks in the bundle of rights that are commonly characterized as property The right to exclude others is necessary and sufficient condition of identifying the existence of property The right to exclude is in this sense fundamental to the concept of property Possession vs. ownership Given that property is a norm, there is also a consensus that property cannot exist without some institutional structure that stands ready to enforce it Property rights "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits Private property: exclusive rights Common property: equal rights Article: "Homelessness and the Issue of Freedom" (J. Waldron)

One of the functions of property rules, is to provide a basis for determining who is allowed to be where o When all else is privately owned, homeless must go on the sidewalks There are places where the homeless may be and, by virtue of that, there are actions they may perform; they are free to perform actions on the streets, parks and bridges--their freedom depends on common property in a way that ours does not

Summary of Property
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Property refers to particular rights of persons or entities with respect to scarce tangible and intangible resources Property is distinct from and superior to the mere possession of resources Rights associated with property require some institutional structure that stands ready to enforce these rights Property must be private, common or public

CASE: Harrison v. Carswell

Supreme Court of Canada, 1975 Facts:

Carswell charged with 4 counts of trespassing o Unlawfully trespassing upon the premises of the Fairview Corporation Limited Didnt want to picket Carswell is an employee o On strike in support of a current labour dispute from whom permission to remain on the premises could not, as a matter of law, be withdrawn May want to mention procedural history It went to appeals-all the way up to Supreme Court Supreme Court holding: she was guilty of trespassing

Issue: Whether the owner of a shopping plaza had sufficient control or possession of the common areas, having regard to the unrestricted invitation to the public to enter upon the premises, as to enable it to invoke the remedy of trespass? o Btw, the courts decided that it did Other Information If a member of the public whose invitation to enter has been withdrawn refuses to leave, he thereby becomes a trespasser and may be prosecuted under the Petty Trespass Act Ratio (the rule of the case, what does the case stand for?):

Possession is not the necessary condition for exclusion Just because you an owner opens property to public, doesnt bar the ability to exclude Trespassing: if the owner who owns the property (first grants invitation), refuses the invitation afterwards, anyone remaining on the property is trespassing. Concurring Judgment: agrees with the holding, but for different reasons The concurring judgment is important in this case, but the principles set forth are compelling

Opinion of the Court The Court held that there was no right of a store employee to protest in a shopping centre when it was against the wishes of the centre. The centre was held to be sufficiently under the control of

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the owner and did not constitute a public place, thus the owner had the right to protect the private property under trespass. Dissent In one of his most famous dissents, Chief Justice Laskin held that the centre was a public place as the public had free access to the place. If it was necessary to categorise the legal situation which, in my view, arises upon the opening of a shopping centre, with public areas of the kind I have mentioned (at least where the opening is not accompanied by an announced limitation on the classes of public entrants), I would say that the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity. Such a view reconciles both the interests of the shopping centre owner and of members of the public, doing violence to neither and recognising the mutual or reciprocal commercial interests of shopping centre owner, business tenants and members of the public upon which the shopping centre is based. Aftermath In Post-Charter Canada the question remains unresolved. The Court's multiple reasons in Committee for the Commonwealth of Canada v. Canada [1991] 1 SCR 139 leave things particularly ambiguous. Shortly after the decision the Manitoba government amended The Petty Trespasses Act to allow picketing and other forms of communication of "true statements" on mall property. The legislation recognizes malls as public spaces where arbitrary withdrawal is no longer lawful on behalf of mall owners.

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