Property Law Notes - Exam

Map of the course Orthodox justifications

Labour theory o Locke o Reap what you sow

First occupation o Imposed on English by Romans o Acquiring land o Argument is if we occupy the place, we get to control it o Over time, this justification was moved to chattels and goods

Idealist theory o Hegal – development of Hagels theory, private property as a long journey of human

development, from primitive to advanced democracy, private property is a way of measuring how civilised a society, extension of individual personalities

o Property would be important to our identity and growth o Not about equality or distribution o Property is essential to us as human beings o Point to things like sentimental chattels

Economic theory o Markets themselves allocate property o Don’t claim to be fair, but efficient o Common ownership seen to be inferior – no one will take responsibility for maintenance,

private property is valued more Counter justifications World and everything belongs to everyone now and forever Private property is small minded

Property as theft o environmentalists

Property as inequality o Whether deliberate or not o Private property leads to concentrated property – 20% own 80% of the property

Property is power o Marx o Property and gender o Extent to which property extends more power to others

Feudalism to Capitalism: Property as a social construct Two key points about property law: 1. Property law and property are socially constructed 2. Property law is about 2 things: justifications and boundaries

Chapter 2 of Macdonald et al: pp 17 - 23, up to and including para 2.130 of the 2010 version, and pages 19 – 27, up to and including para 2.140. The text book readings illustrate at least two things:

- How feudalism was structured which helps you to see how property is socially constructed, and

- How feudal concepts have remained in place under capitalism because they are conducive to the commodification of land

Two Themes of Property Law

- Who should get a property right, and - What should be the boundaries to that property right?[1]

Property and Stats – unequal distribution – Gender and poverty In Australia, the wealthiest 20% of people own about 80% of the property while the rest share in just 20% of Australia’s property. As the study of political economy tells us this unequal distribution is by no means natural or inevitable. To this extent Proudhon may have been right when he declared that “property is theft” in the early 19th century.[1] Pierre-Joseph Proudhon, Philosophy of Poverty, [1] K. Dau-Schmidt, “Dividing the Surplus: Will Globalization Give Women a Larger or Smaller Share of the benefits of Cooperative Production?” (1996) 4 Indiana. J. Global Legal Studies 51, at 53. Dau-Schmidt states that ‘In 1980 the United Nations estimated that although women did two-thirds of the world’s work, they only earned one-tenth of the world’s income and owned only one-hundreth of the world’s property. Property as a “western concept”. I say a “Western concept” because there are other ways of conceiving of property other than in the proprietary terms in which property gets defined in both common law and civil law jurisdictions in Britain and Europe. In terms of gender property men own 99% of the world’s property and women just 1%.[1]

Property not always Proprietary For example the Gold Coast campus is subject to a native title agreement.[1] The Kombumerri people who, as traditional owners of the land, gifted the land to the University with the intention of providing ongoing educational and career opportunities for the entire local community. [1] South Bank, Nathan and Mount Gravatt campuses are situated on the land of the Yugarabul, Yuggera, Jagera and Turrbal peoples. Property and Evidence This illustrates the common law’s preoccupation with evidencing title in order to provide for certainty of land transactions. In the modern era this has resulted with an obsession with documentary title rather than the fact of possession of the use of land.

Property as a social construct The courts are now mediating something which is completely socially, culturally and politically constructed. Who gets to own property? And what can be treated as property – are not universal across cultures and time. So, property and what gets to become the subject of property is something that is historically determined. It is not a universal concept. Patenting of non-inanimate objects – body tissue [1] Chakrabarty & General Electric [1981] re the patenting of body tissue. This was the first case in the US concerning the patenting of genetically modified organisms. The Supreme Court decided 4:3 that Anand Chakrabarty’s genetically engineered bacteria, a new single cell life form modified to create an oil-dissolving microbe, was patentable subject matter. They issued a patent to Chakrabarty on behalf of General Electric in biological tissue. Prior to this patents could only be granted over inanimate (non-living things) inventions. May tell us something about justifications for property? http://digital-law-online.info/cases/206PQ193.htm

Feudalism Feudalism can briefly be described as a hierarchical system based on status in relation to royalty, church and land. In particular we are concerned with the system as it matured through the 10th to the 17th centuries. According to Cohen & Weitzman: … medieval society [w]as a world ruled by custom and dominated by notions of common property …[1] And: … property rights were loosely defined and land use was more or less regulated by the peasant community.[2] [1] J.S. Cohen & M. L. Weitzman, “A Marxian Model of Enclosures” (1975) 1 Journal of Developmental Economics 287, at 288. Despite considerable diversity between regions it is possible to isolate some common elements of this system:

- One of these was the extent to which custom or tradition, rather than the market, regulated economic activity. Economic bonds among classes and individuals, no less than spiritual or military ties, were sealed by tradition:

- Traditionalists to the core, medieval men could be said with slight (very slight) exaggeration to have ordered their lives on the assumption that the only title to permanence was that conferred by long usage. Life was ruled by tradition, by group custom.

- … both lord and peasant accepted the role of custom because it served each one’s individual purpose. The lord was guaranteed a work force, an army, and an income from his land. For the peasant, relying on custom was at least preferable to the lord acting as sole arbiter and was in fact the only defence a peasant had against the superior economic, political, and military strength of a lord?[1]

-

The Doctrine of Tenure - The word “tenure” describes the mediaeval relationship between the King and the Lord to

whom he granted the land.

- Although the importance is now minimal, doctrine is at the basis of English land law. - All land in England is held either mediately or immediately of the sovereign - No person has absolute ownership of their land, it is held ultimately by grant from the Crown.

The grant does not give all rights over the land – an essential condition of the grant is that the grantee (tenant) must render services to the sovereign in return for the land.

- Purpose of granting land was to reward supporters of the King and to ensure their continuing loyalty.

o Services most common were service in the royal army or supply of knights - Tenants in chief – held the land directly from the Crown - Medieval lawyers began categorising types of tenures by the services rendered - 2 types of tenure

o Free tenure – serfs had access to royal courts, had specific services to render and had seisin of the land. Major free tenures were in chivalry (military), socage and spiritual.

o Unfree tenure - no royal court, lords court, at the mercy of the lord and whatever he wanted done

- Incidents of tenure – agreement between lord and tenant, rights, obligations Doctrine of tenure in Australia

- Prior to Mabo, it had been held that the effect of the introduction of the doctrine of tenure into Australian law was that, on acquisition of sovereignty, the Crown became the absolute and beneficial owner of all land in Australia.

- Result of mabo – high court confirmed that the doctrine was imported into Australia as part of the common law, but held that the crown did not acquire full ownership of the land. The doctrine applies to all grants and interests in land other than those held under native title.

- Since the land now passes to the Crown by statute (property law act 1975 qld), and not by reason of the doctrine of tenure, it may be argued that there is now nothing to prevent us properly speaking of the ownership of land in the same way as we speak of ownership of chattels by individuals.

Estates - Estates are different bundles of rights and powers exercisable in respect of land. - Hence, Walsingham"s Case (1573) 2 Plowd 457, at 555: "an estate... is a time in the land, or land

for a time". - Actual ownership of land isn’t recognised – one has an estate in land. - Estate – time in land – or land for a period of time

Types of estates – determines duration - Freehold - Leasehold - Life estate - Fee tail estate – French estate that comes into English land law – abolished in Queensland in

1974 Queensland’s land law system – Torrance system - named after Sir Robert Torrance. Origins of Tenure

- While tenure traces its genealogy back to the collapse of the Roman Empire, English feudalism emerged following the invasion of the Norman French in 1066.

- This series of invasions which weakened the state:“gave rise to the practice of “commendation”, by which people placed themselves under the protection of a more powerful neighbour, the weaker becoming the “vassal” of the “lord”.

- Commendation created a sacred bond between vassal and lord, giving rise to mutual duties of support and protection.

- Vassal would transfer ownership of the land to the lord – for the right to remain or possess the land and profit from it – in exchange for protection from the lord.

- Relationship guaranteed protection - Contemporary terms – landlord and tenant – origin of the idea of tenancy

Tenure and Ritual In its mature form, commendation consisted of three parts.

1. The act of homage, when by placing his hands between the hands of the lord, a person became the lord’s man, his vassal.

2. Oath of “fealty”, following the act of homage with religious sanctions. 3. “Investiture”, by which the lord symbolically invested the vassal with the land. In the result,

the vassal no longer owns the land, but holds it of the lord – the vassal has become a tenant (from the Latin, “tenure”, to hold)

Tenure and Vassals “…these vassals – whom we might call royal vassals, because they held directly from the King – were able to sublet to their own vassals… to be held upon terms of providing in person or by substituting one or more of the knights due to the King. This process, later known as “subinfeudation” was in theory subject to no limit. Feudal and Pre-Feudal Land

- So landholding was essentially pre-feudal. - There was something called leasehold (laenland) which was a form of tenure, because the

tenant held the land of the landlord in return for performing services which eventually developed into the payment of rent, but as far as we know it never involved rendering military services.

- Finally there was some land which was allodial (land without a feudal lord), held in absolute proprietorship with no lord.

Feudalism By 1086, Peter Butt says England had the following feudal structure:

- … about one-fifth was held directly by the King, about one-quarter by the Church, and about one-half by the King’s greater followers.

- These last numbered about 1,500 tenants-in-chief, each holding by some service of the King as overlord. Of these, a small number (probably no more than 12) held about one-quarter of all the landed wealth of England in 1086.

- The King has an interest called dominium directum and the tenant has an interest called dominium utile.

- The interest in land enjoyed by the tenant was called an Estate in land (e.g. freehold land ). Forms of Tenure

- Knight service - Serjeanty - Frankalmoin - Socage

Incidents of Tenure Tenants also had other obligations beyond the provision of services to the lord or king.

- Homage - Fealty - Suit of the Court - Aids - Relief and primer seisin - Wardship and marriage - Escheat

Manorial Estates The agricultural economy was based on co-operation and joint endeavour. The center of cooperation was the village. It functioned as an economic unit, largely self-supporting. The whole of the village land was combined to form one large farm, divided into three fields and cultivated by the three-field system. The three fields were permanently divided into hundreds of small strips, about an acre in size, each owned by a member of the village community. The crops from each strip belonged exclusively to its owner, who alone provided the seed for sowing it. The typical villager, the villein (distinguished from the yet humbler and more numerous peasants known as cottars) had about 30 of these strips, ten in each field, not gathered together in a block but scattered over various parts of the field.[1] Conveyances To avoid the inconvenience of examining the original rolls, the practice grew of making a copy of the relevant entry and of producing the copy to the transferee in satisfaction of the transferor’s duty to prove title. Thus the villein tenant was said to hold “by copy of the court roll”, giving rise to the later term “copyhold tenure”.[1] [Therefore] there were two discrete systems of land law – the feudal and the manorial. Each system played a distinct role in the development of modern land law.[1] Copyhold was a concept extinguished by the Law of Property Act 1922 (UK) which took effect at the end of 1925. Terra Nullius For the very keen jump ahead and have a look A-G v Brown (1847) 2 SCR App 30 and ending with the The Gove Case (Milurrpum v Nabalco), and these are adequately discussed in your RM by Rosemary Hunter. Estates

- Under the doctrine of estates a tenant would own an estate in land not the land itself. This abstract concept of an “estate” in land meant that a variety of estates differing as to the length of time could be enjoyed over the same piece of land. In other words it meant that several people could take an interest over the one piece of land simultaneously and over time.

- From early times, it was recognised that the permanent nature of land lent itself readily to the

concept of the creation of successive interests in land. The idea was that it should be possible for a person to have an interest in the land giving a present right to possession, whilst other persons would have interests which would give them rights to possession in the future. Although the holder of a future interest had no right to possession, the interest was still a present right to possession in the future.

- By viewing the estate as a thing separate from the land, it was simpler to accept, for instance,

the notion of an alienation of a future right to possession of the land.

- Roman lawyers drew a distinction between absolute and temporary interests. But to medieval

English lawyers, all interests in land were temporary. The difference between various interests in land lay in their duration.

- The two fundamental qualities of an estate are the duration of the estate and the nature of the interest conferred by an estate, which generally entitles a person to what is called “seisin”. The term “seisin” really describes the formal legal relationship one has to land.

- As Butt explains, seisin is the connecting link between the person and the land: - The connecting link is seisin: the owner of an estate is entitled, not to ownership of the land,

but to seisin. The full technical description of the position of an “owner” in fee simple – as it is found in the modern-day conveyance of old system land – conveniently summarises the legal theory: the person is “seised for an estate in fee simple”. The description used for an “owner” of land under Torrens title illustrates the same point: the person is “the registered proprietor of an estate in fee simple”.[1]

Estates of Freehold There were three estates of freehold:

1. Fee simple 2. Fee tail 3. Life estate

DESCENT TO HEIRS

- It is uncertain when exactly an interest in land became heritable. But when it did become common practice, it was based on the rule of primogeniture.

- This meant that subject to some minor variation, the eldest son inherited his father’s estate. Primogeniture survived in NSW until 1863, when it was effectively abolished by statute.

- Evolution of fee tail estate was meant to deal with this restriction – only being available to the male line.

ALIENATION

- The feudal overlord had an interest in ensuring that any new tenant of the land met with his approval; no lord would want to be saddled with an unsatisfactory tenant, [lest it risk his entitlement to homage and service].

- The tenant’s heirs also had an interest, for freedom of disposition (whether inter vivos or by will) could result in their disinheritance.

1. FEE SIMPLE - The fullest form of and individual relationship with property – as close to the idea of full

ownership that is possible under a common law system of land. - Fee indicates that it is inheritable. - Simple indicates that there are no restrictions for the heirs. - Simply an estate that is generally inheritable, not limited to any particular type or class of heirs.

Estate is fully transferable.

2. THE FEE TAIL ESTATE - The fee tail was created by statute in 1285. - The name 'fee tail' comes from the French 'taille', meaning cut down: i.e. it is a 'cut down' fee

simple. - It is an inheritable estate – but only to a certain class of heirs , which needs to be specified by

the grantor. - Its origin lies in middle class marriage custom:

- … by which land was given to establish a branch of the family upon a daughter’s marriage. In making a settlement of this kind, the donor intended to benefit the daughter, her husband, and the issue of the marriage; and if at some time in the future this family group should become extinct, then the donor intended to take the land back – that is, the land should revert to the donor (or revert to the donor's heirs)

The fee tail can no longer be created in Queensland after 1 December 1975: s.22 Property Law Act. Any attempt to create a fee tail will result in the creation of a fee simple.

3. THE LIFE ESTATE - It is a freehold estate because it entitles its holder (the life tenant) to seisin of the land when it

vests in possession. There are two forms of life estate the more common one is the first: an estate for the life of a grantee; eg A to B for the life of B (an ordinary life estate), OR an estate for the life of another; eg A to B for the life of C (a life estate pur autre vie).

- Generally created by a will – intended to protect the interest of spouses and/or children REVERSIONS

- Arise because of the relationship between seisin and time - Seisin – the idea of being in physical possession of the land - Need to distinguish between present and future interests in the land - Reversion is the interest remaining in an individual who has granted away less than the whole

of his/her interest in the land. Referring to a fee simple absolute in possession, and has granted away less than the whole interest

- So, in what form may the person grant away part of their fee simple absolute in possession o Lease

- If Anna holds an estate in fee simple and then grants an interest to Ben for life in that land, Ben now has a life estate entitling Ben to seisin.

- On Ben’s death the land reverts back to Anna who is seised by virtue of her original fee simple estate. But until that actually happens we need to characterise Anna’s interest. She has no right to present possession because the seisin is in Ben.

- Instead Anna has a future right to possession - which is a reversionary interest. REMAINDERS

- Another possibility stemming from the concept of reversion is where A gives an interest to B for life, then to C in fee simple. The interest of C in this situation is known as a remainder. The remainder interest held by C is regarded at law as a present or current interest despite the fact that B is seised of the land, and C has no interest until B dies. In this situation the remainderman C is free to alienate or dispose of his or her interest despite the fact that B holds the current estate to the land.

- The key difference between a reversion and a remainder is that the reversion is as extensive as the grantor’s original estate, whereas the remainder is an interest subject to the law at that moment in time (in other words determined according to the circumstances of, say, the death of another person).

Waste land

Commonly owned land, shared by farmers Mutual rights and obligations

Enclosure

- End of traditional rights – rise of individual rights - According to Cohen and Weitzman:

- … the main force behind the enclosure movement was an urge to maximize profits from the land. In this, the agent of change was the profit- seeking landlord, He began to view land less as a definition of rank or a valuable source of traditional services, and more as an income-yielding investment. The paternalistic relationship between manorial lord and tenant gave way to one based on profit maximization in a market economy.

J.S. Cohen & M. L. Weitzman, “A Marxian Model of Enclosures” (1975) 1 Journal of Developmental Economics 287, at 321 Privatising the commons An example of the process: A London merchant, John Quarles, after some difficulties, obtained possession of the manor in about I601- 1602 and resolved to make a profit. He offered the tenants new leases which they refused on the grounds that the rent was too high. Quarles shortly thereafter renewed his offer which the old tenants again ejected. This was his last effort to preserve the traditional economy. ‘Determined to rayse the rente of the mannor to some answerable proportion to his purchase’, he made preparations for the enclosure of its open fields. … he tried again to make some arrangement with the old tenants. Not only did they refuse, they petitioned James I to stop the enclosure. A commission was appointed to investigate the tenants’ complaints. The commission was made up of three Leicestershire land-owners who had recently enclosed their estates and who ‘were sympathetic to Quarles’ position. The commissioner decided in favour of Quarles, who then obtained a royal license to enclose. After enclosure, the tenants had no option but to accept new leases or leave the village. Some remained but had to pay rents about double the pre-enclosure level. Others declined the new terms and left the village altogether. J.S. Cohen & M. L. Weitzman, “A Marxian Model of Enclosures” (1975) 1 Journal of Developmental Economics 287, at 323. In nearly all cases enclosure was resisted by locals who struggled against its forced introduction: … the enclosure movement as a whole was in essence a struggle over property rights. Enclosure was not a communal operation in which every member of the village community had an equal voice in the proceedings and from which each individual received an equal share of the spoils. Quite the contrary, even a so-called ‘enclosure by agreement’ was perpetrated by a small group of individuals who claimed exclusive rights to property and thereby acquired the privilege to exclude those not privy to the bargain. We can be fairly certain that in most cases in which enclosures proceeded without conflicts that the decisive battle over property rights had already been fought. J.S. Cohen & M. L. Weitzman, “A Marxian Model of Enclosures” (1975) 1 Journal of Developmental Economics 287, at 300. Enclosure It is a view summarised by Cohen and Weitzman:

- While it is extremely difficult to disentangle causes and effects in so complex a process, there is some consensus that; the relative increase in internal stability (even if only temporary) caused by the rise of a centralized authority, the long-term influence of trade expansion, innovations in military technology, secularization of religious doctrine, the growth of new opportunities and new consumption desires, each in some fashion supported the development of a profit-oriented society.

J.S. Cohen & M. L. Weitzman, “A Marxian Model of Enclosures” (1975) 1 Journal of Developmental Economics 287, at 321 footnote omitted.

To think about…. This would be a great question for the exam - for you to think about how laws conducive to feudalism can linger under capitalism to enhance the commodification of land. To think about 1. Property is a social construct 2. Property is about justifications and boundaries Your challenge this semester is to be able to articulate arguments about the why and how of each point. In this lecture we have considered very briefly these two themes in the context of feudal rights to land.

Week 2 - Property in Ideas Headings for this lecture:

1. Introduction 2. Property Jargon 3. The 18th Century Literary Property Debate 4. Millar v Taylor 5. Yates J in dissent 6. Yates J contrasted with Blackstone 7. Conclusions

1. Introduction

READINGS:

Millar v Taylor 4 Burr 2303 (1769).1

M. Rose, “The Author as Proprietor: Donaldson v Becket and the Genealogy of Modern Authorship” in Sherman & Stowell (eds) Of Authors and Origins: Essays on Copyright Law, Clarendon Press, Oxford, 1994.

In the 1700s (18th C), the common law did not recognise property in ideas and expression

In the 1700s only statutory privileges (patents) or monopoly printing rights under the Statute of Anne 1709

Patents gave an inventor who registered their invention a 14 year monopoly

Statute of Anne gave licensed London printers a 28 year monopoly o Created to censor material that was anti church and anti monarchy

These were rights created by statute and not by common law.

Millar v Taylor was a case considering whether the common law recognised property in ideas and expression

o Regardless of the protection under the statute of anne, the London publishers have an edition to this right under statute, we have a common law right in perpetuity

1 We’ll cover Millar v Taylor in this lecture. So read Mark Rose.