QUESTION

1.What does Professor Underkuffler mean by this?  Do you agree with her?  Does this accord with the notion of property (including the concept of possession) as it is understood in Australian law?  You should illustrate your answer by reference to decided cases (Australian jurisdiction) and/or legislation.

 

1. What is property?
2. philosophers

• Where does property come from?
• Private property: good or evil?

1. legal scholars

• Gray – excludability
• Macpherson – human dignity
• Underkuffler

1. judges

• Yanner v Eaton– power
• Millirpum v Nabalco– a bundle of rights
• Re Toohey; Ex parte Meneling Stationand National Provincial Bank v Ainsworth  – What kind of rights? Necessary qualities of property.

 

2. What things can be property?
3. Two important factors.

• Excludability

o   Victoria Park Racing v Taylor

• Property as an economic concept

o   Moore v Regents UCCLA

1. Can a corpse be property?

• Doodeward v Spence

1. What about human tissue?

• Ex parte C

See article by Kate Falcolner on LMS.

1. Proprietary interests v personal rights

• Colwell v Rosehill Racecourse

4. The Legal Classification of Property
5. Sources of Property Law– Where do we find property law?

 

Key terms:

Proprietary interest / right in rem

Personal right / right in personam

Real property

Personal property

Chattel

Chose in possession

Chose in action

Legal interest

Equitable interest

 

Possession is important in three ways:

–          As evidence of title;

–          As a source of title; and

–          As a proprietary interest.

It was important both in the law of personal property and also in land law.

In todays’ class we will explore the cases which afford title in abandoned goods to the person who finds them and takes them into her possession. The key to understanding this part of the law is to understand the concept of title and especially the fact that title is relative. The person lawfully in possession has a better title than anyone else, except the true owner.

In relation to land, we will look carefully at cases, which show that possession itself constitutes a proprietary interest. This will prepare the way for our class next week about the doctrine of adverse possession.

                                                              SAMPLE SOLUTION

Individual Interests Verses Collective Interests in Property

In an article dubbed, On Property: An Essay, Laura S. Underkuffler provides a detailed analogy of the extent to which “the tension between the individual and the collective” is a significant part of the “concept of property”.[1] She indicates that in the past, property could not be defined outside of its social contexts and that it was enjoyed on the collective/ community level. This means that individuals enjoyed interests in land by virtue of their belonging to a particular group. However, with the development of modern governance, the agrarian and industrial revolution, as well as the age of capitalism among other factors, there has been a steady movement towards defining and viewing property on individual rights as opposed to community rights. This is what can be referred to as the age of individual autonomy.[2] Professor Underkuffler particularly makes mention of the recent Fifth Amendment decision that was arrived at by the Supreme Court and argues that the jurisprudence set out by the court with respect to the definition of property based on reliance on ‘objectivity’ and ‘technicality’ tends to lead to “conflicting and contradictory results”.[3] The argument herein is that individual rights should not have precedence over collective rights and that a movement towards clamoring for individual autonomy is impracticable. Such divergence leads to tension with respect to the understanding of the concept of property. The averments of Professor Underkuffler are indeed true since the concept of individual autonomy over property is marred with many limitations.

A number of maxims and doctrines with respect to the concept of property in Australia align themselves with the averments that have been laid out by Professor Underkuffler with respect to the conflict between individual and collective interests. One such maxim is the Cujus est solum, eius est usque ad coelum et ad inferos (otherwise referred to as the Cujus maxim (article).[4] This maxim postulates that whoever owns land in fee simple enjoys absolute rights over it all the way down to the Centre of the earth and all the way up to the heavens (article).[5] This age old maxim is one of the proponents that have been used to propagate the individual interests over property as opposed to the collective interests. The maxim, for instance, implies that the absolute owner of property has rights over the air above him and even the sub-soil beneath him. This was illustrated in the common law case of Bury v Pope[6] wherein the court indicated that the owner of the realty could build a tall building even through this would block his neighbor’s access to light. This is, however, completely misleading in the practical level. In the enjoyment of his rights, for instance, the absolute owner of property cannot infringe on the collective rights of others. He cannot engage in activities that cause air pollution. This then means that whereas in common law land has been defined in a manner that suggests that the air above the ground belongs to the owner; this is not true since in many respects, the collective interest take precedence.

[1] Laura S. Underkuffler, ‘On Property’ (1990) 100(1) The Yale Law Journal 130.

[2] Ibid 132.

[3] Ibid 128.

[4] Gray Kevin, ‘Property in thin air’ (1991) 50(2) The Cambridge Law Journal 252.

[5] Ibid 253.

[6] (1586) Cro. Eliz. 118, 78 E.R. 375