OSODO WILLIAM OYAMO

PROPERTY THEORY

The Nature of Property

Property theory is a study of the philosophical foundations of property.
Terminologically, the term ‘property’ may describe three different aspects of the
relationship between people and things. First, it may describe the nature of the
right in a thing. For example, a right a person has against another in a car.
Secondly, it explains the nature of the relationship between two persons in respect
of a thing. For example, a bailment, a lease, etc. It can be seen that these concepts
describe a relationship between the parties. Finally, property may also describe the
thing itself, for example a car.
From a legal perspective, it is necessary to be able to distinguish between the thing
in respect of which rights are claimed and the rights themselves. There are some
things in respect of which the law recognizes property rights, but not in others. The
decision that a legal system will make as to whether a particular thing can be the
subject of property rights is likely to be dictated by pragmatic and principled
considerations of varying and fluctuating weights. For example, see R v. Kelly
[1999] QB 621 on whether human body parts ought to be regarded as property. If
there are good reasons to treat particular rights as property rights, the
conceptualization of the appropriate ‘thing’ will rarely be an obstacle.
However, perceived practical difficulties in enforcing the right may be seen as a
problem. Thus, in Victoria Park Racing v. Taylor (1937)58 CLR 479 the
Australian High Court decided that a racecourse owner who organized horse racing
at race meetings did not have the exclusive right to view, report or otherwise
exploit the race meetings-he had no right to prevent a neighbour from
commercially exploiting the event by broadcasting commentaries on the races over
the radio. The court had no conceptual difficulty in accepting that a spectacle such
as a sporting event might be the subject of a property right, but one of the reasons
why it refused to recognize such a right in the case was the practical difficulties it
envisaged in enforcing it. They took the (misguided) view that such a right could
not be adequately vindicated by the law except by prohibiting everyone else from
overlooking the event, even casually from the top of a bus. This they considered
impractical, and a strong argument against accepting that a property right could
exist in a spectacle such as a horse race. But even if a particular thing can be a

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subject of property rights, it does not follow that all rights in relation to that thing
will be property rights.
What distinguishes a property right in a thing from other rights in the same thing is
the breadth of enforceability of the right. A property right is a right that the law will
uphold against people in general. A right that the law will uphold but only against a
specific person or persons is not a property right.
Again, the decision as to whether a particular type of right should be recognized as
a property right is dictated by policy reasons. Property rights have the
characteristic of enforceability against the world at large, and are thus capable of
having adverse effects on people not even in contemplation when the rights were
created. The justification for allowing the enforcement of a right against one
particular person is therefore not necessarily sufficient justification for allowing its
enforcement against the world at large.
Rights and Other Entitlements

Hohfeld’s Rights Analysis

There is a distinction between being free to use, enjoy or exploit a thing and having
a right to use, enjoy or exploit it. In his classical analysis of legal entitlements,
Hohfeld was concerned primarily with bilateral legal relationship between people,
rather than the unilateral relationship of a person with a thing.
He criticized the use of the word ‘right’ to cover different types of legal
entitlements, and the tendency to assume that all legal relationships could be
reduced to ‘rights’ and their correlative ‘duties’. He distinguished four different
types of entitlements that are commonly subsumed under the general term ’right’-
right, privilege, power and immunity- each of which he says has its own
different opposite (no right, duty, disability and liability respectively) as well as its
own different correlative (duty, no-right, liability and disability).
If a plot of land is owned by X, X has a right as against Y to exclude Y from the
land, and Y has a correlative duty to X not to enter. Right in this sense is the
entitlement to exclusive use and enjoyment. On the other hand, as landowner X
may enter the land in the sense that he is free to do so, and Y has no entitlement to
stop him.

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Rights and Duties, Privilege and No-right

Hohfeld categorizes X’s freedom to enter the land in relation to Y as a privilege or
a liberty as against Y. In other words, privilege denotes the freedom or liberty to
use and enjoy property without interference. Immunity, on the other hand, signifies
the protection from liability that a proprietor enjoys in relation to the use and
enjoyment of the property.
No-Right
Hohfeld calls the correlative absence of entitlement on the part of Y to stop X as no
-right against X. In other words, X owes no duty to Y that he will keep off his own
land, and Y has no claim-right to exclude X from his own land: X’s privilege
against Y to enter his own land is the opposite of a duty on Y to keep away, and Y’s
no-right to exclude X is the opposite of a right to exclude X.
Privilege and No-right
A privilege against a non-owner can exist without the owner necessarily having a
claim -right against a non-owner that the non-owner should prevent him from the
use or exploitation of the property, especially in a situation where the privilege
would necessarily depend on rights related to first use where no property rights are
recognized.
Powers and Liabilities
Hohfeld defines power as the ability to bring about a change in a given legal
relation by one’s own volition. An example would be the power of A, who is P’s
agent, to enter on P’s behalf into a contract with X. A has power to change P’s legal
relationship with X by making P contractually bound to X. P has correlative
liability to have such contractual duties thrust upon him by A. This power/privilege
distinction is particularly useful in explaining the concepts of abandonment and
restrictions on alienation.

Abandonment
A, the owner of a gold bracelet has a power to change her legal relation to the
bracelet by throwing it away. This extinguishes her interest in the bracelet by the
process of abandonment. A component of ownership interest may be said to be the
power to abandon property. An owner of property has a power to change her legal

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relationship with the property by extinguishing her interest in it by abandonment. If

an owner exercises this power, she also, as a consequence, changes the relation that
the rest of the world has to her in respect of the property.
Once the property has been abandoned, everyone else in the world acquires a
privilege as against the owner to take possession of it for themselves (whereas
formerly they had the opposite, a duty owed to the owner not to take possession
from her) as well as a no-right that anyone else should not do so, and a power to
acquire title to it by taking possession of it (which has always existed as a result of
the abandonment).

Restriction on Alienation Rights

A constituent of ownership is the power to transfer interest in the property: the
ability to change the legal relation of both himself and the transferee to the watch
in the sense that by the transfer he can extinguish his own interest and create in the
transferee a corresponding interest. The owner also has the privilege to transfer his
interest in the property to a transferee in the sense that everyone else in the world
has a no -right that he should do so. Power and privilege do not necessarily co-
exist. Thus, while most private property interests are alienable-in fact alienability is
such a common feature of private property interests that it is tempting (but wrong)
to regard it as a necessary criterion for a private property interest.
The holder of an alienable property interest can however, contract not to alienate it.
Is she does, she loses the privilege of alienating the interest as against the person
entitled to enforce the contract in the sense that the person now has the right that
she should not alienate, and she owes a duty to that person not to alienate.
Nevertheless, she retains the power to do so, in the sense that if she goes ahead and
does so, she will succeed in extinguishing her own interest in the thing and vesting
a corresponding interest in the transferee.
The above may be illustrated by contractual restrictions on a tenant’s right to
transfer the lease. Suppose L, the owner of a flat, wants to grant a ten-year lease of
the flat to T, at a given annual rent. The interest that T would acquire in the flat-a
ten-year lease-is a property interest and it is inherently alienable. T would have the
privilege of transferring it to anyone she wants at any time and she would also have
the power to do so-she would have the ability by entering into a deed of transfer, to

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distinguish her interest in the flat and vest a corresponding interest in any
transferee.
However, L will probably not be very happy with that state of affairs because he
may be reasonably confident that T will pay the rent promptly and not wreck the
flat. But he does not want to run the risk that she will transfer it to someone less
trustworthy. So, in practice, L will insist on making it a term of the lease that T will
not transfer the lease to anyone without first obtaining L’s consent. The effect of
this is to remove T’s privilege to transfer as against L (L now has a right that T
should not transfer the lease, and T has the correlative duty to L not to transfer).
If, therefore, notwithstanding this term in the Lease T goes ahead and enters into a
deed of transfer with X, the transfer will be effective to pass the lease to X.
However, T’s duty not to transfer the lease will have been breached. One of the
remedies that a landlord has if a duty imposed on a tenant is breached is to cancel
the lease by a process of forfeiture and this can be done whether the lease is held
by the tenant or the assignee. The effect of the unauthorized transfer to X will,
therefore, be to give L the power to extinguish the lease by forfeiture.

Power and liabilities, immunities and disabilities

The nature and significance of the correlatives of power and liabilities, immunities
and disabilities may be seen from the power of sale held by a non-owner. A non-
owner’s power of sale is an exception to the principle of nemo dat quod non
habet, which is a basic property law principle that postulates that a non-owner
cannot transfer a property interest which he does not have. However, a non-owner
would have the power to transfer when he acquires the power from another source,
in which case the owner loses his immunity from having his ownership divested by
anyone else, and acquires a liability to have his ownership divested by the non-
owner.
The sources of the non-owner’s power may be statutory such as a mortgagee’s
property interest in a house, and the mortgagee can extinguish the owner’s interest
and its own mortgage interest in the house, and vest it on someone else in the event
of default in repayment of the loan. In Hohfeldian terms, the mortgagor loses his
immunity from having his ownership divested by someone else and becomes
subject to a liability to have his ownership divested by the mortgagee. The

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mortgagee has the power to sell full ownership of the house to a purchaser, even
though it never had full ownership itself.

Property Rights, property interests and ownership

It is apparent that in many property relationships each party holds a complex of
rights, privileges, duties, liabilities, etc. in respect of the thing in question. The
whole complex of rights, privileges, duties, liabilities, etc. held by each party is a
‘property interest’ in the thing. Property interests are therefore complexes of rights,
duties, etc. held by a person in a thing: W.N. Hohfeld, ‘Fundamental legal
conceptions as applied in judicial reasoning’ (1913)23 Yale Law Journal, 16.
There is a relatively short list of recognized property interests ranging from
ownership (which is the most extensive) to much lesser Interests as mortgages,
easements and charges. However, the list is expandable by law.

Private property, communal property, state property and no property

Individuals are not the only entities who can hold property rights. In some
circumstances, property rights in things can be held by communities, i.e., groups of
individuals identified by reference to a particular locality, or membership of a
particular class or ethnic or related grouping, or some other general defining
characteristic. These property rights are communal property rights.
Communal property
The defining characteristic of communal property is that every member of the
community has the right not to be excluded from the resource. This is what
distinguishes communal property from no-property. An individual who is a
member of the community therefore has not only a privilege to use the thing, but
also a right not to be excluded from it, and consequently, everyone else in the
world has a correlative duty not to interfere with their access to it.
Communal property and no property
There are, nevertheless, some things in respect of which no one has property rights.
In Hohfeldian terms, everyone has a privilege to use such things but nobody has
the right not to have their use interfered with, nor the duty to abstain from
interfering with anyone else’s use. Thus, natural resources which are either not

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scarce because they are abundant in supply and not highly valued or not scarce
because they are not exhausted by use, are characterized by the feature that each
one has the privilege to use them but not the right to complain if use of them is
interfered with by others.
In Hunter v. Canary Wharf [1997] A.C. 655, the House of Lords held that
terrestrial television signals come within this category. According to them,
although everyone has a privilege to receive the signals, no one has a right to do
so. Consequently, residents in the Isle of Dogs were held not to be entitled to
complain when Canary Wharf Ltd Built Canary Wharf Tower which, because of its
size and construction interfered with their television reception by preventing
television signals reaching buildings which fell within its ‘electromagnetic
shadow’. Communal property may be either open access or closed or limited
access. With regard to the former, everyone in the world is a member of the
community, while in the latter case, membership of the community is limited to
those who share a common characteristic such as membership of a club or ethnicity
or residence in a particular locality.
Open access communal property must be distinguished from no-property: it is the
right of each member of the community not to be excluded that distinguishes open
access communal property from no property. In Hunter v. Canary Wharf, if the
claimants had had a right rather than a privilege to receive television signals, i.e., if
television reception was open access communal property rather than no property,
they would have had a right not to be subjected to interference with their television
reception and they would have succeeded in their claim against the builders of
Canary Wharf Tower.
Communal property and state property
The state may also hold all the property rights in a thing, directly or through its
agencies, and allocate the use of the thing to particular citizens by administrative
rather than property rules. This is public or state property. Thus, individuals may be
allocated user rights of various types, or even limited management or control
rights. However, these rights would not be property rights in the sense that they
would not be personal to the holders, and are not transmissible.
Open access communal property also differs from state property in two ways. First,
in the case of open access communal property, the facility is not necessarily
provided by or owned by the state, or indeed by any other public body. In Hunter
v. Canary Wharf, it would have been open to the House of Lords to find that the
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residents of the Isle of Dogs had a right not to have their television reception
obstructed, that television reception was open access communal property rather
than no-property, even if television signals were provided solely by private bodies.
The fact that every member of the public is free to use a thing and has a right not to
be excluded from it does not make the thing (or the right) into state property.
The second distinction lies in the nature of the relationship between the state and
the member of the public in the facility provided by the state. If the user has the
right not to be excluded from use by the state, i.e., the state cannot prohibit the use
by that individual without changing the law, then it is open access communal
property rather than state property. If on the other hand, the state provides the
facility and merely licenses users to use it by permission revocable by
administrative action, then it is state property.

Private property, communal property, state property and no property

There is no consensus where the dividing line between communal property and
state property falls. There is even a lack of consensus between private property and
state property: Is a state ruled by an absolute ruler who governs by the principle
that all rights in things vest in him for the benefit of himself a state property regime
or a private property regime which vests all property rights in one person? There
may also be intermediate positions between the three absolutes, hence it may be
more accurate to describe the range of interests as a continuum rather than as self-
contained categories.

Communal property: open access

Open access communal property however does not provide a guarantee of use for
every member of the community. The question of allocation of available resources-
whether everyone in the world should be entitled to use them (open access
communal property), or merely free to use them (no-property), or whether use
should be restricted to a certain limited class (limited access communal property) is
quite distinct from the question of whether allocation of available resources-
whether everyone in the world should be entitled to use them (open access
communal property), or merely free to use them (no-property), or whether use
should be restricted to a certain limited class (limited access communal property) is

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quite distinct from the question of whether anyone should be made responsible for
ensuring that the resources are available.
Thus, a right of every member of the public to unimpeded use of a public park does
not connote a correlative duty on the owner of the site to provide a park in the first
place, or to continue to provide existing ones any more than a right for Isle of Dogs
inhabitants to be free from interference by Canary Wharf Towers with their
reception of television signals would have imposed a duty on the BBC or anyone
else to transmit signals in their direction.
Secondly, the privilege to use and the right not to be excluded from open access
communal property are subject to the like privilege and right of everyone else.
Thus, what a person has is not an exclusive right to use but a right to use in
common. A user can no more interfere with the right of others than they may
interfere with his. This robs him of the right to complain when another user
precedes him in use.

Communal property: limited access

Most types of communal property, whether open access or limited access involve
rights to make particular uses of a resource, rather than a right to do whatever the
user wants with the resource, and they also tend to be highly regulated.
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.

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. Each individual has a transmissible property
interest i.e., the power to assign their share to anyone else. Members of a

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community on the other hand are identifiable by reference to a defining

characteristic, and no individual member has a transmissible interest. In R
(Beresford) v. Sunderland City Council [2004]1AC 889 the inhabitants of
Washington were held to have a right to play games in the playing fields owned by
the council. Thus, each resident had 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 had that interest only because and for so long as he had the defining
characteristic of residing in Washington. Consequently, he had no power to transfer
his interest.
Nevertheless, there are types of communal properties where each individual user’s
entitlement is tradable, either fully or to a limited extent. Glen Stevenson,
Common Property Economics records this as one of the many variations of
communal use currently in use in Swiss Alpine grazing. The House of Lords
decision in Bettison v. Langton [2001] UKHL 24 has had the effect of converting
nearly all communal grazing rights in the UK into fully tradable rights i.e., rights
that can be sold separately from the adjoining farms they were originally intended
to benefit. Nevertheless, such rights still involve communal resource use and for
most purposes it makes sense to put them in the limited access communal property
category rather than private property category.
Like open access communal property, limited access communal property tends to
involve particular rights rather than general use rights (leaving each member of the
community free to make a specific use of the resource in common with all the
others, rather than allowing each to do exactly as he wishes with it). Also, and
again like open access communal property, it tends to be highly regulated, usually
though not necessarily, by self-regulation rather than by regulation by an outside
body.

THEORETICAL UNDERPINNING OF PROPERTY

JUSTIFICATION FOR PROPERTY RIGHTS

Justification of property rights is a question of why there should be property rights
at all, as distinguished from what sorts of people should own what sorts of things
and under what conditions. It is an attempt to unravel the theoretical underpinnings

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or foundations of property rights in society. There are several theories that provide
the theoretical justification for property rights.
1. Economic justification: property and scarcity
From the perspective of the economic rationale, in no property or ownerless things,
de facto use and enjoyment go to the first taker. This causes no problem if the
supply of the resource exceeds the demand. If, however, the resource becomes
scarce-demand exceeds supply-four consequences follow.
a) First, those who want to make use of the resource will struggle for the
control of it, leading to friction and costly and dangerous conflict.
b) Secondly, resources that would otherwise be self-replenishing such as
fisheries and pastureland will be overexploited and eventually exhausted.
c) Thirdly, there will tend to be premature exploitation of resources that require
time to fulfill their full potential e.g., felling immature trees.
d) Fourthly, resources that could be made more available by the long-term
investment of skill and labour will be under-exploited.
Economists regard the institution of property as a means of solving these problems
caused by scarcity of resources. It is generally accepted that any type of property
ownership will avert friction and conflict. Thus, in order to prevent disputes about
use, all that is needed is a system of rules allocating use and control of the
resource. It makes no difference whether the rules provide for state ownership of
the resource, or private ownership or some form of communal ownership provided
the rules are sufficiently observed or enforced. Views differ on the other three
consequences.
One view is that they can be averted only by private ownership of the resource. In
this regard, American social biologist Garrett Hardin in ‘Tragedy of the
Commons’ (1968) 162 Science 1243 postulates that resources that he refers to as
‘commons’ will inevitably become exhausted once scarce, and that the only way of
averting this ‘tragedy’ is by making the resource the subject of private property or
state ownership. He sees these as least-worse rather than perfect solutions. He
gives two examples of the ‘tragedy of the commons’.
The first is a pasture open to all. He argues that each herdsman pasturing animals
on the pasture has an incentive to increase the number of animals on the pasture
because he will obtain 100% of the benefit of each additional animal but will bear
only a fraction of the cost of the negative effects of doing so i.e., less grazing

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available for the other animals. These negative effects he will share with all the
other herdsmen. Since this is true for all the herdsmen, he argues, the pasture will
inevitably he overgrazed and then exhausted.
The second example Hardin gives is pollution. While the problem is the same as
the pasture problem, in the case of pollution the problem is putting the pollutant
into the commons-the atmosphere, a water supply, etc. rather than taking
something out. Each individual with the freedom to use the commons-in this case
to put, for example, chemical waste into the stream-has the incentive to do so
because he will take the full benefit of the cost-saving involved in throwing the
waste away rather than processing it, but bear only a fraction of the cost imposed
on the community by pollution of the stream.
In both cases, the pasture and pollution, the problem is externalities. Externalities
are good or bad effects that inevitably fall on others rather than the person. In
Hunter v. Canary Wharf, the building of the tower had the effect of interfering
with television reception for the residents of the Isle of Dogs.
From an economic perspective, if these effects that are external to the person are
not taken into account when deciding whether to adopt the use of the resource, it
tends to lead to misuse of resources because the full costs and benefits of the use
are not taken into account. However, Hardin fails to establish why private
ownership provides a better solution in the herdsman example than that which
could be provided by limited access communal property. This is because he does
not make clear the distinctions between no-property, open access communal
property and limited access communal property.
The tragedy of the commons may, nevertheless, be averted by a limited access
communal property regime, but the society this produces will be culturally very
different from the one that opts for a predominantly private property holding of the
same resource. If the society that adheres predominantly to a communal property
regime does so voluntarily, it is likely to be a small highly cohesive and heavily
regulated society, and regulation will tend to be by social convention rather than by
legal sanctions.
Also, the relative suitability of private property and limited access communal
property will tend to vary depending on factors such as the nature of the resource
and the prevailing environmental conditions. This was shown by Glenn G.
Stevenson in his study of alpine grazing commons which have subsisted in some
cases for a thousand years, interspersed between both private and government-
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controlled grazing. Despite the disagreement as to the form property rights should
take, there is general agreement on the fundamental that scarce resources will be
best utilized (whether this involves conservation or exploitation) by the imposition
of a property rights regime in which rights are clearly demarcated and readily
enforceable. In this context, there is a related question regarding the viability of
single property systems.

Viability of single property systems

In most societies, private, communal and state ownership coexist. It is difficult to
envisage a society which did not recognize some form of private ownership of
some resources, however exiguous. This is probably true even in a wholly Marxist
society. Jeremy Waldron, The Right to Private Property, 425-6 points out that it
is an integral part of Karl Marx’s argument that private property should be
abolished in total. Even Marx had to have some way of recognizing something
akin to private property in relation to such ownable as one’s labour and personal
possessions. He refers to such things as ‘private possessions’, and although he pays
little attention to precisely what rights individuals would have in such things, they
appear to go beyond purely possessory rights, even if not extending to full rights of
alienation for reward, bequest and commercial exploitation.
At the opposite end, a society in which all resources are privately owned is
probably also not feasible. This is simply because there are some resources that any
society would wish to make available for public use, such as roads and national
defence systems. Resources which are made available for public use can still be
made the subject of a modified type of private ownership which ensures public
access such as was evident in the privatization of public utilities that occurred in
may western states in the late Twentieth Century.
Nevertheless, economists recognize a category of resources, usually referred to as
‘public goods’ which many argue are most efficiently held by public ownership. In
such resources, free-rider problems would make private ownership either
economically inefficient or too politically contentious to be generally adopted.
Thus, the argument is that national defence systems provide benefits which cannot
easily be made available only to those willing to pay for the services, and so non-
payers can confidently free ride on payers, knowing they will benefit from enemy
attacks being deterred and repulsed just as much as payers will.

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As far as private ownership of roads is concerned, the free-rider problem is rather

different. Private ownership of public roads would be feasible if road owners were
entitled to charge for road use, and indeed charging for road use would arguably
have the advantage of reducing road use. However, in a situation in which use of
roads is free, those who put a low value on their time and, therefore, do not mind
congestion, free ride on those who put a high value on their time and would pay a
toll in order to control the level of traffic. These free riders will therefore oppose
privatization of roads, and traditionally there have been enough of them to make
their opposition successful.

2. John Locke’s Justification for private property

Locke tried to establish that given the right constitutions, it is morally justifiable
that those who take resources from their natural state are allowed to keep them for
themselves to the exclusion of others. He therefore sought to justify the original
acquisition of private property rights in unallocated resources. He does not deal
with transfer of property rights nor with questions of redistribution of property
rights once resources have already become subject to some form of ownership,
whether private or otherwise. According to Locke, private property rights and other
private rights had a legitimacy which was not derived from the state. The world
was given to people in common by God for their subsistence and preservation. It is
from this that private property owners derive their rights: private ownership is
acquired by individuals taking for themselves things given to ‘mankind in
common’ by God.
The obligation to respect the claim of the first possessor “was imposed by the law
of nature, and bound all men fast long before human conventions had been thought
of”, Richard Schlatter, Private Property: The History of an Idea, 1951, 154.
Consequently, any right that the state has to interfere with private property rights is
conferred on the state by the people and can be withdrawn by them if abused by
the state. Such arguments were used to justify the Glorious Revolution (against
absolute monarchy) in England in 1688 and the French Revolution as well as the
American Declaration of Independence.
Locke contends that it is not necessary to look for consent from the people because
those who take resources from the common for themselves to the exclusion of all
others legitimately acquire rights over the resource if by so doing, they mixed their
labour with it. This is what confers legitimacy in the holding of a person who takes
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resources from the common. He argues that everyone has property in their person
in the sense that no one but themselves has any rights in their person. In the same
way labour of their bodies and the work of their hands is also their own: “Every
man has a property in his own person; this nobody has any right to but himself.
The labour of his body and the work of his hands we may say are property his.”
He also asserted that when a person removes something from its natural state by
mixing his labour with it, he is joining something of his own to it. By so doing, he
makes it his own property. This is because a person’s labour is the expression of his
agency and status as a person, not because the raw materials have touched his
body. The connection is not literally between a person’s body and the hoe, flute or
pen, but between the skills and the fruit, music or poem that flow from the labour
for which he uses those tools. Jeremy Waldron states: “Humans, then, do not have
creators’ rights over their bodies. But they can be regarded in this strong sense as
the creators of their own actions (and a fortiori of their work and labour)”: Jeremy
Waldron, The Right to Private Property, Oxford, Clarendon Press, 1988, 179.
It will be noted that the question whether people own their bodies is not
straightforward, but even if it were to be accepted, and also accepted that a
person’s labour is his property, there is no reason why mixing of it with a thing
gives him property over the thing. However, Locke’s point is that by mixing our
labour with things, we make them more valuable. Natural resources are of little use
to us until we have exploited their potential by labouring on them. We do not
however always increase the value of things by working on them, and even if we
did, why should this give exclusive ownership of the whole thing?
If it were to be accepted that the full potential use and value of natural resources
should be realized, most people would agree that this can only be achieved by
individuals labouring on them. Allocating outright ownership to the labourers is an
obviously simple and effective incentive and/or reward and/or compensation for
the expenditure of the necessary labour. Locke’s theory seeks to justify the original
acquisition of private property rights in unallocated resources. The theory
underscores that the liberal basis of a right to property is ultimately linked to self-
ownership; it derives from the connection between our value creating labour and
our agency, although not from our ownership of our physical bodies. The labour is
an expression of our agency and not of our bodies as such; it derives its values
from that agency, but it is done through the medium of our bodies.

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It is still relevant because new categories of no-property constantly emerge, and at

a point when a new resource comes into being or a pre-existing no-property
resource becomes scarce, it becomes necessary to consider whether and how it
should be reduced to ownership. It provides a justification for giving property
rights in newly created things to the creator rather than to anyone else, but also for
treating the newly created thing as property at all.
The essence of Locke’s theory was applied in Haslem v. Lockwood (1871) 37
Conn. 500 where the Plaintiff had raked into heaps manure that had accumulated
in a public street, intending to carry it away the next day. Before he could do so,
the Defendant found the heaps of manure and hauled them off in a cart. In an
action in trover for the value of the manure, the court held for the Plaintiff. The
manure belonged originally to the owners of the animals that dropped the waste,
but had been abandoned. As abandoned property, it belonged to the first occupant,
the Plaintiff, who “had changed its original condition and greatly enhanced its
value by his labour” [at 506]. The Defendant had argued that the Plaintiff had lost
his rights when he left the heap unattended overnight. The Court asked, “if a party
finds property comparatively worthless...and greatly increases its value by his labor
and expense, does he lose his right if he leaves it a reasonable time to procure the
means to take it away, when such means is necessary for its removal? [at 507]. No.

3. Filmer’s Absolute Monarchist Theory

Robert Filmer, a supporter of absolute monarchy in England at about the time of
Locke, traced the derivative of property rights from God to Adam, the first man,
and from him by a direct line of descent through his heirs to the monarch, regarded
as Adam’s only legitimate heir, the inheritor of the dominion over the world and all
its resources which God gave to Adam.
According to this view, such private property rights as individuals hold, they hold
only by grace of the monarch, who could withdraw them at will. Filmer argued that
the Lockean view fails to explain how private property owners could legitimately
have acquired rights from mankind in common. If one person acquires private
property rights in a thing that was formerly held by all people in common, this
necessarily extinguishes the right or liberty that those people had in the thing.
Locke’s answer was that it is not necessary to look for consent from the
commoners because those who take resources from the common for themselves to

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the exclusion of all others legitimately acquire rights over the resource if by doing
so, they mixed their labour with it.

4. Hegel and property

The Hegelian model of property is centered on the experiential process of identity
formation and recognition of other’s subjectivities. The Hegelian notion that
‘everyone must have property’ does not mean that everyone must hold private
wealth. The theory focuses on relationships, rather than appropriation.
Property, according to Hegel, is not merely about relations of possession and
control, but rather about the broader dynamics of social recognition. Thus, only by
engaging with the world of objects can we become full subjects: “The Hegelian
subject always has to go outside itself to know what is inside; by seeing itself
reflected in the world, it discovers relations constitutive of itself.” Kathy E.
Ferguson, The Man Question: Visions of Subjectivity in Feminist Theory,
Berkeley and Oxford, University of California Press, 1993, 41. Thus unlike in
liberal theory, the high road to individual autonomy and self-awareness is through
the recognition of others who also possess self-consciousness, who also own
themselves.
Our individuality is not given but created, through active relationships with our
environment, which of course includes other subjects. It ‘translates’ itself into
reality ‘through the use of its own activity and some external means’, of which the
first is property: Hegel, Philosophy of Right, 9. Property is the first venue of
interaction with the world, followed by contract, the family, civil society and then,
only then, the state. Property is not a mere physical possession, but rather ‘the
social recognition that something belongs to me’: Philosophy of Right, 72. Thus in
Hegelian thought the state is the final and highest stage of mutual recognition.
This contrasts with liberal contractarianism where disconnected individuals in the
state of nature form the state in order to assure the security of their property and
lives. Property is not guaranteed by the state apparatus subsequent to its formation
by the social contract; rather the order of events is reversed, so that property is a
lower but still essential stage in the process of mutual recognition that eventually
culminates in the state. Rights, including the bundle of claim -rights, privileges,
powers and immunities which constitute property, are consequent to society rather
than prior to it.

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The Hegelian appeal of a societally rather than individually centered model of

property is that it suggests collective mechanisms for governance vesting the
controls that constitute property relations in genuinely communal bodies. Thus, the
Hegelian approach to property sees then stages represented by people and contract
as emblematic of the individual’s self-development (the justification of property
and contract as stages in self-development).

5. Marxism and property

In Marxism, the basic premise underlying history is that the nature of individuals
depends on the material conditions determining their production. What individuals
are coincides with their production, both with what they produce, and how they
produce: self-creation through labour is the primary factor in history. The
principle governing all human relations is to be found in the common end
that all men pursue, viz. production of means to support life and exchange of
things produced. There are two factors in production: ‘productive forces’-the
instruments of production including labour and implements as well as the
knowledge and skills of those who produce, and the ‘productive relations’ between
men.
A change in men’s productive forces necessarily brings about change in their
relations of production. In the beginning productive relations were co-operative.
Social revolutions took place as new inventions resulted in newly discovered
productive forces coming into conflict with existing relations of production. In
acquiring new productive forces men change their mode of production; and in so
doing they change all their social relations. Thus, history is an expression of class
struggles. The particular structure of the class at any time is determined by the
mode of production. It is the contradiction within the system which cannot be
resolved within its framework that lead to higher stages of development.
In capitalist societies, there are three large classes: wage labourers, capitalists and
land owners. Classes arise out of the system when shared interests in a common
situation lead to the development of political movements and class ideologies
which promote those interests. Thus, the contradictions within capitalism lead to
increasingly acute conflict which only a revolution by the working class can
resolve. Through the revolution the working class thus acquires political hegemony
and found a socialist system in which private ownership of property does not exist,
and thereafter the classes would be abolished, and the power of the state would
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disappear, and in its wake would be a classless communist society in which

property is owned by all, governmental functions are transformed into simple
administrative ones, and a ‘just administration of things’ exist. Only then would
man’s essence be realized. Karl Marx, Grundisse: Foundations of the Critique of
Political Economy (Martin Nicolas (tr.), New York, Vintage Books, 1973, 611.
 The alienated worker’s labour is always in fact the symbol of his oppression,
not of his freedom, although under capitalism he is not a slave.
 In the capitalist system, labour is nonetheless external and forced, even
though the labourer is not physically compelled to work, as the slave is.
 Marx credits the worker with a property in his own labour: Marx believed
that the worker always ‘naturally’ and rightfully has a property in the labour
of his person.

ALLOCATION OF PROPERTY RIGHTS

1. The First Occupancy Rule

The question in this part is what sorts of people should own what sorts of things
and under what sorts of conditions. The primary rule is that property rights in a
previously unowned resource will be allocated to the first person to take that thing
into his control, or the first person to stake a claim in an authorized way. In the
case of tangible things this usually means taking physical control of the thing
(possession). Intangible things can also be allocated by a first taking rule. For
example, an inventor of a process gets exclusive rights to exploit it for a limited
period by being the first person to patent it. The patent system is essentially a
notice filing system, and such systems can also be used to allocate property to the
first taker of intangible assets where taking of physical control is not feasible, or is
disproportionately expensive or exclusionary.
What are some of the reasons for the use of this principle for allocating property
rights in unowned resources?
 First, that it accords with our intuitive ordering of things. Lueck argues that
this is a characteristic way of sharing out temporary use of open access or
limited access communal resources.

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 Second, preservation of public order. The law confers rights on the first taker
to prevent a disorderly free for all. It is easier and cheaper to preserve the
peace by protecting those in possession from intruders than by allowing
them to fight it out between themselves. Also, law enforcers seeking to avert
public disorder between rival claimants ought to be able to identify quickly
the person to be protected. Physical control is relatively easy to identify on
the ground, and so the general tendency of law enforcers to protect
possessors against intruders. Thus, the first occupancy rule is simply an
aspect of the way in which the law protects holdings generally against
strangers, even when unlawfully acquired.
In other words, our legal system, in common with others, confers property rights
on those who take control of things not only when the thing was previously
unowned, but also when there is a pre-existing owner. In the latter case the
protection the law gives is more precarious: the taker acquires rights enforceable
against everyone except them pre-existing owner, whereas in the former, the rights
acquired by first taking are enforceable against the whole world.
 Third, the simplicity and certainty of the first occupancy rule is one of its
main attractions. The first occupancy rule enables property rights to be
allocated by a single, simple rule understandable by all without recourse to
litigation and according to most people’s intuitive feeling of fairness.
 Fourth, signaling. If those who have taken physical control of a thing
automatically acquire property rights in it simply by virtue of being there,
occupancy can operate as a useful signaling device, allowing outsiders to
assume that occupancy more or less guarantees entitlement. If entitlement
does not go to the first occupier, outsiders have no quick, easy way of
ascertaining whether the present occupier has yet done whatever is required
to gain entitlement.
 Fifth, an emotional bond grows between people and things they regard as
theirs, and this bond ought to be respected by the law: ‘Every part of my
property may have, in my estimation, besides its intrinsic value, a value of
affection’, Jeremy Bentham, The Theory of legislation, Part 1, Chapter 10.
 Sixth, the libertarian justification contends that the first occupancy rule
means that the state can be excluded from decisions about property
allocation. ‘The rule that allows one to organize a system of rights that is not
dependent on the will of the sovereign, and makes it possible to oppose on

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normative grounds the all too frequent historical truth that ownership rights
rest upon successful conquest’, Epstein, ‘Past and Future’, 669.
However, the communitarian objection to the first occupancy rule is that it favours
private ownership over the more complex relationships that evolve under
communal use and ownership. Nomadic land use and other forms of hunter-
gatherer resource use do not involve any one person taking exclusive physical
control of the resource as a whole.
First occupancy rule might well dictate which individual person within the
community takes each individual item, but the resource as a whole might be used
by a number of different individuals and communities, often within a highly
formalized but unwritten pattern of usage. If this is not recognized as a taking or
occupancy of the resources, and rights are treated as originating only through first
occupancy rule, then people living in this way never acquire rights enforceable
against intruders in the land and natural resources they live on.
 Seventh, the economic efficiency rationale is that if takers are awarded
property rights this provides an incentive for seeking out, working on and
developing resources and making them more productive. However, this does
not always work with all resources. In some cases, it can lead to premature
capture of resources.

2. New Things
The second criteria for allocation of property rights is new things. New things can
come into existence in a variety of ways. They may arise from an irreversible
mixture of pre-existing things, or as the product of labour of one or more persons.
Where the new thing can be regarded as the income or product of a pre -existing
thing, the pre-existing things can produce income or natural product in two ways.
In the case of some things, it is in their nature that they will produce natural
products, for example cultivated fields produce crops, shareholding produce
dividends. But an owner of a thing can also make a thing produce an income by
foregoing beneficial use of it and instead granting the right to beneficial use of the
thing to someone else for a period of time in exchange for rent. An example is
where a home owner gives a lease of the home to students for a year at a monthly
rent.

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The basic rule is that ownership of the income or product automatically accrues to
the owner of the thing that produced it. The right to the income and the natural
product of a thing are usually both regarded a standard incident of ownership of the
thing. However, there may be more complex cases. Animals are the natural product
of two parents, not one. A legal system considering how to allocate ownership of
animal offspring can choose between three possible rules. It can allocate ownership
of the offspring to the owner of the mother, or it can allocate to the owner of the
father, or it can adopt a rule that when an animal is born it automatically falls into
the category of wild animals, and is unowned until captured.
What principle would lead a legal system to adopt one rule over another?
There are some things whose value resides solely in the income or product they
will or may produce. In the case of the apple tree if owned by the commercial fruit
grower, there is no point owning the principal unless you are also guaranteed
ownership of the product. In the case of other things, the principal things can only
be made to yield incomes or natural products or to produce higher quality or higher
value yield by the expenditure of skill and labour such as land can only be made to
yield crops by cultivation or addition of fertilizers and fencing.
Ownership of the crops provides the incentive for the owner of the land to incur the
expense, and since all the profits of increased production accrues to the land owner,
he has the incentive to increase the productivity of the land whenever increased
productivity is cost effective in terms of increased investment required to produce
it. Further a blanket rule that ownership of income and natural products
automatically accrue to the owner of the principal will leave the owner of the
principal free to put the principal to its most productive use.
In Tucker v. Farm and General Investment Trust Ltd (available at
[Link]/property law), the owner of ewes (a hire purchase company)
had leased them to a farmer under a hire purchase agreement. The Court of Appeal
held that lambs born to the ewes during the hire period belonged to the farmer and
not the hire purchase company. Allocating the ownership of income and natural
products to no one presents problems, both where the product has a negative value
and where it has a positive value.
As to the negative, there is need for the owner to take responsibility for the
products yielded by the things they own if those products are harmful or capable of
causing harm. The rule that ownership of the income or product automatically

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accrues to the owner of the principal provides a basis for the environmental law
principle that the polluter pays.
On the other hand, where the income or natural product has a positive value, the
problem arises because of the first occupancy rule. If income and natural product
are ownerless, the owner of the principal will have to incur costs excluding others
to ensure he is the first taker, and those who want to engage in trading in the
product will have to incur costs in ensuring that they are the first taker. An apple
wholesaler would not therefore own an orchard but would employ a gang of
pickers to lie in wait near apple trees waiting for them to ripen and meanwhile
repelling rival pickers. Allocating ownership of the apples to the owner of the tree
therefore eliminates these costs and makes apples cheaper.
New things may also arise by creation: “Any expenditure of mental or physical
effort, as a result of which there is created an entity whether tangible or intangible,
vests in the person who brought the entity into being, a proprietary right to the
commercial exploitation of that entity, which right is separate and independent
from the ownership of that entity”: D.F. Libling, “The Concept of Property:
Property in Intangibles” (1978)94 L.Q.R. 103, 104. Thus, according to Libling,
the foundation of property rights is the expenditure of labour and money, which
merely represent past effort [at 119].
The underlying idea seems to derive from Locke, who reasoned that a person owns
the product of labour by reason of having property in the person.
3. Capture
Historically, the first occupancy rule has been used to establish ownership in
‘migratory resources’, sometimes referred to as ‘fugitive resources’. The basic
problem of applying first occupancy rule to fugitive resources is, at what point in
the pursuit and capture of the resource will the hunter, in the case of wild animals,
be taken to have acquired a sufficient hold over the resource to be awarded
ownership of it.
The first occupancy rule demands that the claimant gains full control of the
resource before he is entitled to property rights in it. In Ghen v. Rich 8 F. 159,
United States District Court, the libellant had been engaged in the business of
whale catching for ten years. The libellant shot and instantly killed with a bomb-
lance the whale in question. It sunk immediately and four days later was found by
E, stranded on a beach 17 miles from the spot it had been killed. Instead of E.

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sending word as was customary so that the owner could come and remove the
blubber, he advertised the whale for sale and auction and sold it to the respondent,
who shipped off the blubber and tried out the oil. The libellant upon hearing of the
finding of the whale claimed it. He claimed title to the whale by the usage of Cape
Cod that the person who kills a whale owns it.
The court decided that the usage required of the first taker the only act of
appropriation that is possible in the nature of the case, and was valid. Thus, the
property in the whale was in the libellant. There are at least three problems with the
requirement that the taker should establish firm possession.
 First, such a rule encourages premature capture of the resource,
 Secondly, it is not appropriate for some types of resource use such as
nomadic land use.
 The third is that there are some fugitive resources, wild animals being a
prime example, where the hunter must make a considerable investment of
money and labour in the pursuit before gaining full control of the capture.
If an interloper is free to come in and snatch the prey from him before he has
gained full control, the investment will be wasted. The social and economic
implications of this may be seen in Young v. Hitchens [1844]6 QB 606, 115 ER
228, where the Court of Queen’s Bench treated it as a simple matter of physical
control and refused to give redress to a Cornish pilchard fisherman whose rivals
rowed up to his partially closed pilchard nets and drove out the fish already caught
in but not yet fully enclosed in the nets.
The rule of capture was applied to wild animals, and later the courts reasoned that
ownership of underground water, oil and gas should be determined in the same
manner. In one early case it was stated that “[as minerals ferae naturae, in]
common with wild animals, and unlike other minerals, they have the power and the
tendency to escape without the volition of the owner. They belong to the owner of
the land, and are part of it, so long as they are on or in it, and are subject to his
control; but when they escape, and go into other land, or come under another’s
control, the title of the former owner is gone.”: Westmoreland & Cambria Natl.
Gas Co. v. DeWitt, 18A. 724, 725 (Pa. 1889)

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PROPERTY THEORY

The Nature of Property Interests

1. General Enforceability
Property interests have distinctive features which makes them different from non-
property interests in things. The essential characteristic that distinguishes
proprietary interests in things from non -proprietary interests is their range of
enforceability. A non-proprietary interest is essentially bilateral: generally, only one
person is under a correlative duty to the right held by the right holder. A proprietary
interest on the other hand is generally enforceable.
In Hill v. Tupper (1863)2 H&C 121; 159 ER 51 the Court held that where a canal
company which had among other rights, an exclusive right to put pleasure boats for
hire on the canal, transferred that right to Hill, Hill became entitled to prevent the
canal company from also putting boats in the canal for hire, but was not entitled to
prevent Tupper, a stranger from doing so. One of the ingredients of the canal
company’s proprietary interests in the canal was a proprietary interest to put
pleasure boats for hire on the canal, but it could not break that right off from its
proprietary bundle in such a way that the right remained proprietary when
transferred to Hill.
The grant did not create an interest in the Plaintiff as to enable him to maintain an
action in his own name against a person who disturbed his right by putting and
using pleasure boats for hire on the canal: ‘It is not competent to create rights
unconnected with the use and enjoyment of land, and annex them to it so as to
create a property in the grantee’. As against the canal company, Hill has the
exclusive right to put pleasure boats on the canal but it was enforceable only
against the canal company, not against Tupper. It was a personal right, not a
property right.
Consider for example, Gregory S. Alexander, “Time and Property in the
American Legal Culture” (1991) 66 N.Y.U. L. Rev. 273 at 277 contends that
“property is inescapably relational. When the state recognizes and enforces one
person’s property right, it simultaneously denies property rights in others. Thus, the
owner’s security as to particular assets comes at the expense of others being

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vulnerable to the owner’s control over those assets. Ownership is power over
persons, not merely things.”
2. Identifiability of subject matter
It follows from the principle of general enforceability that if a right to a thing is to
be a property right, it must be possible to identify the thing in question. Because a
property right in a thing is enforceable against everyone who comes into contact
with the thing, it must be possible to identify whether or not any particular thing
has become burdened in this way. It would be difficult to assign or transfer rights
in a thing when potential buyers are unable to establish whether the thing is
burdened by a property interest held by a third person. But the other aspect is that a
property right cannot attach to a thing in any meaningful way until the thing has
been identified.
One qualification to the identifiability principle is that it is possible for a
fluctuating body of assets to be viewed as a whole, as an abstract thing, which
continues to exist in an identifiable form even though the component assets making
up the thing change over time. The property interest then attaches to the abstract
whole rather than to the fluctuating component assets.
In a trust fund, trustees hold a portfolio of assets for the benefit of beneficiaries,
but with the power and the duty to sell any of the assets at any time and replace
them with others as and when necessary to maintain or increase the value of the
fund as a whole. In such circumstances, it is useful to regard the abstract thing-the
fund-as a thing in its own right and to treat the beneficiaries as having a property
interests in the fund rather than in any of the individual assets making up the fund
at any one time.
Another example of fluctuating assets is the floating charge. By a floating charge a
business can give a charge to a lender over all its assets of a particular type, rather
than over the specific assets it happens to own at any particular time. The
advantage of a floating charge is that it does not give the lender a property interest
in any particular asset, so the company is free to carry on its business without
having to ask the lender any time it wants to dispose of the assets.
The charge floats over the whole body of assets, without attaching to any particular
one at any particular time. Admittedly this is not of much use to a lender as it has
no sufficient property interest in any specific asset to enable it enforce its security
in it and pay off the debt. However, on the happening of a specified event

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-liquidation, default on loan repayment, etc.-the floating charge over the

fluctuating assets crystallizes and is transformed automatically business at that
time. The lender can then sell each asset as chargee if it wants, or exercise any of
the remedies available to a chargee.
3. Significance of alienability
A right or interest is alienable if it is capable of being transferred from its current
holder to someone else, so that the transferee steps into the shoes of the transferor.
An alienable right or interest is thus not personal to the holder. Alienation may take
the form of deliberate transfer, or transfer by operation of law or the automatic
passing of the property right on the death of the holder.
Economists and others who regard the creation of a free market in resources as the
central rationale for the existence of property rights, regard alienability as the
central feature of an efficient property system. It has also been stated that
alienability is an essential characteristic of a property right: Lord Wilberforce in
National Provincial Bank v. Ainsworth [1965]AC 1175. However, some
communal property rights are not alienable. If the community consists of a
fluctuating body of individuals, no one individual can alienate her own interest,
and generally the community as a whole cannot alienate its communal interest
either.
Secondly, inalienable property rights are often created by legislation, which create
status rights that the holder holds personally by virtue of the unique status he has
and which cannot be transmitted to anyone because the status is personal to him.
For example, a statutory tenant with inalienable property interests whereby the
tenant is in possession with an interest enforceable against the whole world but the
interest is inherently inalienable.
Thirdly some property interests can only be held as appurtenant to other property
interests: they cannot be transferred separately from the property interests to which
they are appurtenant. This mostly applies to interests in land for example an
easement which is a right to make a particular use of the land of another. The
easement can only be held by someone who also owns neighboring land which
benefits from the easement.
Subject to the foregoing exceptions, alienability is an inherent characteristic of
private property interests, so firmly embedded that the holder of an alienable
property cannot shed the power to alienate his interest. Even a contractually

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binding agreement not to alienate the interest is ineffective, and if the rights holder
nevertheless goes ahead and transfers her interest to a transferee, the transfer is
fully effective to move the interest from the transferor to transferee although the
transferor will be in breach of contract and may be liable in damages, and in the
case of some property interests such as a tenancy, to termination by forfeiture.
4. Requirement of certainty
Just as the subject matter of a property interest must be certain in the sense that it
must be identifiable, the identity of the interest holder, the duration of the interest,
and the precise time when the interest begins and ends must also be certain. It must
be possible to say at any given time whether or not at that time that particular
interest is attached to a particular thing and who holds it.
5. The numerus clauses of property interests
There is an almost infinite variety of non -property rights that can be created in
relation to a thing, bounded only by human ingenuity. However, for property
rights, only a small range of types of property interests is known to the law.
Different interests are recognized in relation to different types of things.
6. Vindication of property rights
This characteristic of property interests applies in most jurisdictions and is partly
responsible for the reluctance by courts to recognize new types of property
interests. It is sometimes said that what distinguishes a property right from a
personal right is the availability of specific performance- the court will order
specific performance of an enforceable promise to transfer or grant a property
interest in a thing but not a personal right in the thing. This is however only
partially true as courts will only order specific performance in contracts involving
land or other unique things where damages are not an adequate remedy. However
not many other things are regarded as unique in this way.
The converse is also generally true that courts are unlikely to order specific
performance of a promise to transfer or grant a personal right in a thing even if the
personal right relates to land. This remains an important consequence of a decision
to categorize a right to occupy land as a lease (property interest) or a licence
(purely personal right). However, even here there are exceptions. In Verrall v.
Great Yarmonth Borough Council [1980]1 All ER 839, the Court of Appeal
granted the National Front specific performance of a two-day licence of a hall that

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the Conservative controlled council had granted to them for their annual
conference, and which the new Labour controlled council wanted to revoke.
The court rejected an argument that specific performance of a licence can never be
ordered. It seems that whether the interest is personal or proprietary, where
damages would not be an appropriate remedy the court will grant specific
performance.
7. Termination
Some property rights continue indefinitely while others are limited in duration, to
continue either until a particular date or until the happening of a particular event. A
property interest is generally not personal to its holder, and so nothing happens to
the interest when its holder dies or ceases to exist. The property interest simply
passes on the next person entitled. There are however three ways in which property
interests can end prematurely:
o Abandonment
Abandonment applies to all types of property interest. It is however surprisingly
difficult to abandon a property interest: non-use is not sufficient of itself.
o Waiver
Any type of property can also be given up by a formal procedure known as
disclaimer, but this is available only to a company in liquidation or a bankrupt
individual’s trustee in bankruptcy or to a person who has become entitled to a
property interest on intestacy or under a will.
o Forfeiture
Forfeiture is a right reserved by the grantor of a property interest to take the
property interest back from the grantee on breach of one of the terms of the grant.
In principle, any property interest may be made forfeitable by the reservation or
grant of such a right. When the forfeitable interest is a lease of land or a possessory
interest in goods (i.e., a bailment) the right to forfeiture is exercised by the right
holder either physically re-entering/retaking possession of the land or goods, or
applying to court for an order that will have the effect of terminating the forfeitable
interest and /or ordering its return to the right holder.
The first feature of the right of forfeiture is that the right to forfeit another property
is itself a property interest (usually called a right of re-entry). It is inherently

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assignable like most other private property rights. When it is exercisable over a
lease of land, the right of re -entry is appurtenant to the landlord’s interest in the
land.
The second feature is that rights of re-entry are usually exercisable only where the
holder of the forfeitable interest has committed some breach, and the holder of the
right will usually exercise it only where the breach has caused or is likely to cause
her harm. Because of the potential for unfairness there is a long established general
equitable jurisdiction to grant relief against forfeiture, and in general relief against
forfeiture will almost always be granted if the holder of the forfeitable interest
remedies the breach. The right to apply to court for relief against forfeiture,
especially where the forfeitable interest is an interest in land, a property interest in
its own right.
Property rights and insolvency
Probably the most important difference between proprietary rights and non-
proprietary rights is the difference in the way they are treated on insolvency. When
an individual goes bankrupt or a company goes into insolvent liquidation, all their
property is taken from them (subject to a few exceptions). The property is then sold
and the proceeds of the sale are divided among the creditors, proportionately to the
amount of their claims.
Since the debtor who has gone into bankruptcy or insolvent liquidation is by
definition insolvent, the total amount of the claims against the debtor will exceed
the total proceeds of sale of all the assets of the debtor. Consequently, each person
who has a personal claim against the debtor will inevitably receive less than full
payment of their claims on insolvency. If, however a creditor has a property right
or claim enforceable against the debtor, and the creditor can show that he has a
property interest in any asset apparently held by an insolvent debtor, that property
interest never forms part of the debtor’s property in the first place, so it is never
made available to be distributed between the debtor’s general creditors. The effect
is that a creditor with a property claim is always paid in full.

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Special features of communal property rights

While communal property rights share most of the characteristics of private
property, there are important differences. Whenever communal property rights are
exercisable over a particular piece of land, there will either be an owner of the land
or the underlying ownership will be vested in the state through a state agency.
1. Rights of common
In this type of limited access communal property, the community entitled to make
communal use of the resource consist of ascertainable individuals who hold the
right either by virtue of their ownership of adjoining land, or (if the right has been
severed from the benefitted land) by transfer from someone who owned the
adjoining land or could trace their title back to such an owner. This type of
property is very much like the model Hardin had in mind in ‘The Tragedy of the
Commons’.
Its present nature and function were reviewed by the House of Lords in Bettison v.
Langton [2001] UKHL 24. This type of communal property closely resembles
private property. The important feature of rights of common is that the members of
the rights holding community can always be identified at any particular time, and
each of them has a distinct right which he can deal with without reference to the
others.
Some rights of common are appurtenant to the ownership of other land: grazing
rights over a particular pasture, for example, will usually be held by the owners of
adjoining farms. If the rights is appurtenant to other land in this way and is not
severable from it, the right cannot be dealt with separately from the land to which
it is appurtenant, so in this sense it is not alienable. It can however be surrendered
back to the owner of the land over which the right is exercisable, and if this
happens the right is extinguished. If the right is not appurtenant to other land (said
to be ‘in gross’) or if it is appurtenant but severable, it can be freely alienated in
much the same way as a private property right.
Rights of common are, therefore, communal property only in the sense that they
involve communal use of a resource. Regulation of the communal use to avoid
Hardin’s tragedy of the commons will usually regulate use either by the underlying
owner of the land over which the rights are exercisable, or by the users themselves.
Self-regulation by the users themselves is made easier by the fact that they are all
readily ascertainable at any one time.

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The majority decision in Bettison v. Langton that all appurtenant grazing rights of
common are now severable is likely to have significant effects on self-regulated
grazing commons.
2. Customary rights
In limited access communal property involving customary rights, property rights
can only be acquired by custom, they are not expressly granted. This is because the
community in this type of communal property right consists of a fluctuating body
of individuals, defined by reference to a general characteristic, usually residence of
a locality, and the law has no mechanism for granting rights to fluctuating bodies
of individuals.
The fact that the community consists of a fluctuating body of individuals defined
by status has other implications. First, neither the rights of the individuals nor the
rights of the community as a whole can be alienated. An individual member of the
community has no power to transfer his share because he has no power to transfer
the status to someone who does not have it.
The fact that the community itself prima facie cannot alienate its interest is of more
practical significance. The problem is that the present members of the community
have no power to extinguish the rights of future members of the community. This
means that once customary property rights have come into existence there is no
way in which they can be terminated or varied. Lord Denning in New Windsor
Corp v. Mellor, and Lord Hoffman in R. v. Oxfordshire County Council ex
parte Sunningwell pointed out that customary rights cannot be extinguished by
abandonment, and there is no suggestion in either case that present inhabitants
have any power to vary or extinguish them. Unless the law provides some
mechanism for freeing the resource from the use such as that the right can be lost
by abandonment, or extinguished by surrender or transfer agreed by the majority of
the present members, the resource will be perpetually tied to its present use.
This form of communal property therefore has distinct advantages if conservation
of the resource in its present state is an overriding objective. There is no
mechanism for capping the number of those entitled to use a resource where rights
are held by a fluctuating body of individuals. If the number of users can increase
without limit this increases the danger that the resource will be exhausted. This is
why customary rights that allow users to take finite resources from the land are
rare. Such rights to take resources from other people’s land (profits á prendré or

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just profits) are much more likely to exist as private property rights, or as rights of
common where the number of communal users is fixed.
English law maintains a general rule that profits cannot be held by a fluctuating
body of individuals, but has developed mechanisms to circumvent the rule in order
to legitimize long established customary uses.

OWNERSHIP
Ownership is the ultimate property interest and the means by which the person or
persons with primary control of a thing is signified. Property encompasses any
interest in a thing whereby the interest holder acquires rights enforceable beyond
the original parties to the transaction (or other means) by which the interest was
acquired. Thus, property extends to diverse interests such as easements (such as a
right of way over land) and choses in action (such as the benefit of a contract
which is normally assignable and may thus be enforced by someone other than a
party to the original contract).
In contrast, ownership is a particular type of property interest in which the person
designated as owner is deemed to have the greatest possible interest in the thing.
As a subset of property, ownership is concerned with two quite separate relations:
the first is the ownership relationship with other people, and the second is the
owner’s relationship with the thing itself.
Ownership is an organizing concept used to signify the bond that exists between a
person and a thing. The owner is the person whose decision as to what should or
should not be done with a thing is regarded as socially conclusive. Thus, it fulfils
the primary role by providing a simple, readily understood notion of what it means
to be an owner of a thing. Normally the amorphous concept of ownership provides
a simple test that invariably provides non-lawyers with a means of establishing
what they can and cannot do with a particular thing, no matter how complex the
actual property relationship involved. However, ownership is one of those
‘concepts whose proper use inevitably involves endless disputes about their proper
use on the part of their users’: Gallie, ‘Essentially Contested Concepts’.
Ownership and People
The concept of ownership is built upon the right to possess, which in both the
private and communal property contexts are two individual rights which together

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enable the owner to protect and maintain his possession and hence his ownership.
Against the non-owner, the owner has a primary right to exclude them from the
thing owned and, as against fellow owners, a primary right not to be so excluded.
In private ownership the right to exclude is the most important because there will
be many non-owners of the thing. In contrast in communal ownership the right not
to be excluded is equally important.
Ownership and things
Ownership provides a bond between the individual and the animate. As Hegel
noted, private ownership is an assertion of personality whereby the person ‘has as
his substantive end the right of putting his will into any and every thing and
thereby making it his’: Hegel, Philosophy of Right, Section 44.
The different meanings of ownership
The meaning of ownership varies according to its context. William Blackstone
defined ownership as ‘that sole and despotic dominium which one man claims and
exercises over the external things of the world, in total exclusion of the right of any
other individual in the universe’, Blackstone, Commentaries, Book II, Chapter 1,
p.2.
This varies with the modern habit of conceiving of ownership in terms of a bundle
of separate (but related) rights including the rights to use, possess and destroy.
Waldron on the other hand suggests that ownership ‘expresses the abstract idea of
an object being correlated with the name of an individual’: Waldron, The Right to
Private Property, p. 47.
He notes that the liberties conferred by ownership are not unlimited as Blackstone
appears to suggest. Nonetheless, Blackstone did not regard ownership as a single
all-embracing right, but rather ‘a complex of different rights not accounted for by
the simple notion of ‘sole and despotic dominium’: Whelan, ‘Property as Artifice’,
p. 119.
Grey’s thesis is the notion that the modern concept of property ‘fragments the
unitary conception of ownership into a mere shadowy ‘bundle of rights’: Thomas
C. Grey, ‘The Disintegration of Property’ in Nomos XII: Property (New York:
New York University Press, 1980), Chapter 3, pp. 69-71 and 72-3.
Thus, the conception of ownership as a ‘bundle of rights’ is the one constant to
which most commentators subscribe. The term ‘ownership’ is thus used to link the

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property rights that exist in a thing to the person or persons in whom those rights
currently vest.
The division of ownership
English law recognizes that different types of ownership interests might exist in the
same thing. For example, in a trust, ownership is split between the trustee and the
beneficiary with the various attributes of ownership divided up between them.
Broadly, the trustee is given the right to manage the property on behalf of the
beneficiary who has the right to enjoy it.

The contents of ownership

While the process of analysis of ownership had been set in motion by Hohfeld’s
analysis of rights, it was Honore’s essay on ownership that evoked rigorous
scrutiny of the concept of ownership. Honore identified eleven ‘standard incidents
of ownership’, and explained the rationale thus: ‘The standard incidents of
ownership...may be regarded as necessary elements in the notion of ownership in
the following sense. If a system did not admit them, and did not provide for them
to be united in a single person, we would conclude that it did not know of the
liberal concept of ownership, though it might have a modified version of
ownership, either primitive or sophisticated. But the listed incidents, though they
may be together sufficient, are not individually necessary conditions for the person
of inherence to be designated owner of a particular thing...for...the use of ‘owner’
will extend to cases in which not all the listed incidents are present.”
Thus, Honore is providing a template in which he lists those incidents with which
any system claiming to embrace a liberal notion of ownership, and does not
preclude the possibility of other forms of ownership, be they ‘primitive or
sophisticated’, which do not correspond with the template.
The eleven standard incidents of ownership:
1) The right to possess
The right to possess is an expression of the law allocating exclusive physical
control of a thing or to have such control as the nature of the thing admits. It has
two elements: the right (claim) to be put in exclusive control of a thing, and the
right to remain in control, that is, the claim that others should not interfere without
permission. It is a right in rem, available against persons generally.

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2) The right to use the thing

Honore confines use to personal use and enjoyment, and thus the right to use
something involves making whatever personal use and enjoyment (besides harmful
use) of the thing at the discretion of the owner.
3) The right to manage
This is the right to control the use of the thing in the sense of being entitled to
licence others to make personal use of it. The owner has the right to decide how
and by whom the thing shall be used.
4) The right to the income of the thing
This covers both naturally occurring profits as well as what Honore describes as ‘a
surrogate of use, a benefit derived from forgoing the personal use of a thing and
allowing others to use it for reward’, for example income produced from capital a
person invests, or rent received from a flat let out.
5) The right to the capital
This is the right to deal with the thing in a way a person chooses (excluding
harmful dealing). This right consists in the power to alienate the thing and so he
can sell or give it away, and the liberty to consume, waste damage or destroy the
whole or part of it, or to dictate who should have it when the owner dies.
6) The incident of transmissibility
One of the main characteristics of the owner’s interest is its duration. What is
called unlimited duration as at least two elements: that the interest can be
transmitted to the holder’s successors, and so ad infinitum; and, that it is not certain
to determine at a future date. The incident of transmissibility is a right that
concerns the interest a person has in a thing rather than the thing itself.
Interest is transmissible if it is capable of being transferred intact to someone else,
in the sense that the consequence of the transfer would be that the transferee would
acquire all the rights and claims the transferor had in the thing, and the transferor
would cease to have them. In other words, a transmissible interest is the antithesis
of an interest that is purely personal.
7) The incident of absence of term

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This is the second element of duration. The rules of a legal system usually provide
for determinate, indeterminate and determinable interests. Determinate interests are
certain to determine at a future date or on the occurrence of a future event which is
itself certain to occur. Indeterminate interests are those to which no term is set.
However, since human beings are mortal, his interest will last for life, and
therefore the notion of indeterminate interest in the full sense requires the notion of
transmissibility.
In essence, indeterminate interests are really determinable. With respect to
determinable interests generally, the legal system always provides for some
contingencies such as bankruptcy, sale in execution or state expropriation on which
the holder of an interest may lose it.
8) The right to security
This is the right to remain owner indefinitely if he chooses and if he remains
solvent. It involves an immunity from expropriation based on rules which provide
that apart from bankruptcy and execution for debt, the transmission of ownership is
consensual.
A general right to security availing against others, is consistent with the existence
of a power in the state to expropriate or divest, and when that occurs, adequate
compensation should be paid.
9) The duty to prevent harm
An owner’s liberty to use and manage the thing owned as he chooses is subject to
the condition that not only may he not use it to harm others, but he must prevent
others using the thing to harm other members of society.
10) Liability to execution
The owner’s interest is liable to be taken away from him for debt either by
execution of a judgment debt or on insolvency. Without such a general liability the
growth of credit would be impeded and ownership would be an instrument by
which the owner could freely defraud his creditors. This incident, executability,
constitutes one of the standard ingredients of the liberal idea of property.
11)Residual character of ownership
Each of the standard incidents of ownership can apply to the holder of a lesser
interest in property. A lesser interest means rights vested in others which restrict

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the owner’s rights in the thing without bringing his actual ownership into question.
It is characteristic of ownership that an owner has a residuary right in the thing
owned. In practice, legal systems have rules which provide that on the lapse of an
interest, rights, including liberties, analogous to the rights formerly vested in the
holder of the interest, vest in or are exercisable by someone else. That person may
be said to acquire corresponding rights. It is necessary but no sufficient condition
of being an owner that, either immediately of ultimately, the extinction of other
interests in a thing would inure to his benefit.

Limitation of ownership
Ownership in practice never invests the owner with complete control over the thing
owned. All ownership of things is subject to limitations which differ in accordance
with the practical, social and historical circumstances surrounding the particular
object of property in question.
The negative restrictions to which ownership is subject are as much an aspect of
ownership as the positive rights normally associated with the term. Limitations as
to the use of property exists both in public and private law, and are normally
imposed as a matter of public policy but can on occasion arise by agreement.
a) Nuisance
Public nuisance is historically the common law’s response to problems arising out
of land use where the effects were too diverse and indiscriminate to expect any
individual to take action on his own. In accordance with its underlying rationale in
protecting the interests of the community, public nuisance is a crime for which the
perpetrator may be prosecuted. If criminal sanctions are inadequate, a civil action
may be brought by the A-G or the local authority. However, in the absence of
particular damage individuals are not permitted to bring a civil claim in respect of
such a nuisance as that would open the door to a multiplicity of actions where, by
definition, the harm causes have been suffered by the public in general.
On the other hand, where a person’s use and enjoyment of land or some right
connected with it has been unlawfully interfered with, he may bring an action for
private nuisance: Read v. Lyons & Co. Ltd [1945] KB 216 at 236 per Scott L.J.
the interference normally comprises a continuous or recurrent activity or condition
which may take three forms: causing or permitting a thing to encroach on land,

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direct physical injury to neighbouring land where it is continuous or interference

with use and enjoyment of land.
Private nuisance is concerned with balancing the rights of adjoining occupiers of
land. It is important to note that conceptually, someone without an interest in land
does not have rights against the world in respect of that land. In Hunter v. Canary
Wharf [1997]AC 655, the House of Lords rejected the attempt by the Court of
Appeal to widen the class of persons capable of suing in private nuisance to
include individuals who resided in a locality yet had no proprietary interest in the
land they occupied.
The court also considered the nature of ‘use and enjoyment’ and held that the right
to use and enjoyment of land does not include the right to an unobstructed view.
Thus, the complainants had no property in the reflected light travelling towards
their land, and by analogy no property in similarly directed television signals.
b) Restrictive covenants
A restrictive covenant is a private law device whereby land use is restricted.
Initially the device was no more than a contractual undertaking in which the
purchaser of a portion of land agreed with the vendor to certain restrictions on how
the purchased land would be used. As a contractual right the restrictive covenant
was however of no avail once a subsequent title holder who was not a party to the
original contract entered the situation.
In an agrarian and static society where there was a technological limit on what a
landowner could do with land so as to affect a neighbour, and little, if any,
demographic pressure, this did no great harm and there was consequently no need
to extend it beyond its contractual limits. When the industrial revolution came, and
with it, demographic upheaval, the spread of freehold ownership and the
technology to blight neighbouring land, the law was compelled to respond.
Activities on neighbouring land could inhibit alienation of land. A vendor had no
means of protecting the land he retained from being affected by developments on
the land he had parted with, and every incentive to retain rather than sell any
portion of his land. The recognition of the proprietary status of restrictive
covenants thus became an economic imperative freeing up the market in land. A
series of cases culminating in Tulk v. Moxhay [(1848)1 Ph 774] established the
restrictive covenants as a species of property rights and thus provided a mechanism
whereby it was possible to sell a portion of land safe in the knowledge that

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subsequent owners of the plot could not do something that would spoil the
enjoyment (economic worth) of the plot retained.
The principle established in the case is that once two plot owners enter into an
agreement restricting the use of one plot of land for the benefit of the other, then,
provided certain conditions are satisfied, that agreement will be enforceable
between all subsequent owners of the two plots. While Tulk v. Moxhay proved the
high watermark in the development of this principle, in later cases the courts took
care to confine it so that now fairly detailed requirements must be satisfied before a
restrictive covenant can be enforced between successors in title.
By far, the most important limitation is that it applies only to negative obligations-
promises not to do something. To enforce positive covenants against subsequent
owners would place too great a burden on the land, making potential buyers liable
for difficult to quantify expenses, and thereby undermining the marketability of
land, and the basis of recognition of covenants as proprietary interests in the first
place.
Although the covenant in Tulk v. Moxhay itself was couched in positive terms -a
promise by the purchaser of Leicester Square positively to maintain it in its then
state as an ornamental garden square- the seller in that case sought only to enforce
its negative elements, i.e., to prevent the purchaser’s successors from using it for
anything else. He did not try to enforce the positive obligations undertaken to keep
the iron railings in repair, maintain the gardens, etc.
More recently the House of Lords in Rhone v. Stephens [1994]1 WLR 229
reaffirmed that no matter how the covenant is worded, a positive obligation is
never enforceable between anyone other than the original parties. So, Mr. Tulk and
his successors could not make subsequent owners of Leicester Square use it as a
garden square, they could only stop them taking positive steps to use it for any
other purpose.
The scope of restrictive covenants has now been extended by the courts so that it
can now provide a local regulatory law enforceable by and between all neighbours
in an area. This extension involves a relaxation of the rule that the only people who
can enforce a restrictive covenant are those who can prove that they now own at
least part of the land which was;
 owned by the promisee at the time when the promisor made the promise; and
 intended to be benefited by the restriction.

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Thus, in a ‘building scheme’ or ‘scheme of development’, provided there is an

intention to impose a scheme of mutually enforceable restrictions on all land
within a clearly defined area, the entire development is subject to the scheme from
the moment the vendor sells the first plot. From then on, each owner is entitled to
enforce the restriction against every other owner within the designated area.
The essential element is reciprocity: the courts must be satisfied not only that the
seller intended to setup such a mutually enforceable scheme, but also that the
original buyers bought on the understanding that the restrictions would be mutually
enforceable between themselves: Emile Elias & Co. Ltd v. Pine Groves Ltd
[1933]1 WLR 305, PC. For this reason, even the seller becomes bound by the
scheme once it has crystallized on the first sale: thereafter he can be restrained
from using any as yet unsold land within the area in breach of the restrictions, and
all subsequent sales he makes must be subject to similar restrictions: Brunner v.
Greenslade [1971] Ch 993.
Building schemes appear to be highly effective with developers routinely imposing
them in new housing and industrial estates, presumably because their existence
enhances the value of the industrial units. The potential for restrictive covenants to
inhibit the development of the restricted land and reduce its marketability, whether
or not they form part of a building scheme is checked by two factors. The first is
that a restrictive covenant will not be enforceable against a subsequent buyer of the
burdened land unless he had notice of it when he bought the land, a requirement
now taken care of by registration.
The second is that statutory machinery now exists to eliminate or modify
restrictive covenants that have outlived their usefulness.

Fragmentation of Ownership 1
The rights and obligations which Honore described need not be held by the same
person at the same time, and may be shared between and distributed among any
number of different people in a number of different ways. Since ownership can be
fragmented in a variety of ways to form a complex of interlocking interests, it can
be sliced across time so as to have future and present interests, it can be split at a
qualitative level so as to have legal and equitable components, it can be divided via
mechanisms that from a functional perspective separate management from
enjoyment.

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The unifying factor is that in each case ownership has been split in such a way as
to create two or more interests that are conceptually and functionally quite distinct
from the other. However, fragmentation of ownership is highly systematized.
While an owner can by contract give any person any of his ownership-type rights
and obligations in any way, for any purpose and for any length of time there are
only strictly limited ways in which ownership type rights can be sub-divided and
redistributed so as to leave each right holder or group with a distinct property
interest as opposed to merely personal rights.
This formalized structure of interdependent property rights is the subject of
fragmentation of ownership.
1. Present and future interests
Present interests give a present right to have enjoyment of a thing now, while
future interests confer a present right to have enjoyment of it at some point in the
future. It is not only possible to limit the length of time for which a property
interest will last but also create a property interest where the enjoyment of the
thing is deferred, so that enjoyment will not commence until a future date. Thus,
the enjoyment of the thing can be divided up into time slices.
Present rights to present enjoyment are said to be ‘in possession’, whereas present
rights to future enjoyment are either reversionary (‘in reversion’) or ‘in
remainder’. The distinction between reversionary interest and a remainder interest
is that a reversionary interest involves enjoyment reverting back to the holder of
the larger interest out of which the reversionary interest was carved out, whereas a
remainder interest involves a movement of enjoyment forward to someone else.
When rights to enjoyment are divided up into timelines, the ending of one person’s
right to present enjoyment and the beginning of the next one’s are made to depend
on the happening of a future event.
Some future events are certain to happen such as death, or the arrival of a specified
date. If the commencement of the right to present enjoyment is dependent on the
happening of a future event that is certain to happen, then the interest is said to be
absolute. The interest is absolute even if we do not know in advance when the
future event is going to happen, provided that it is certain that it will happen. On
the other hand, the commencement of enjoyment may be made dependent on the
happening of a future event which is not certain to happen, but which may or may
not happen.

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The interest is said to be contingent -future enjoyment is not certain, but

contingent on that thing happening. If a person has a contingent interest-interest
where the commencement of enjoyment is contingent on the happening of an event
which may never happen-then it must follow that someone else will simultaneously
hold the mirror-image contingent interest-an interest where enjoyment is dependent
on that event not happening. If no one is specified as the holder of this mirror-
image contingent interest, it will belong to the grantor.
In contrast to contingent interests where the happening of the contingency triggers
of the commencement of enjoyment, contingencies may mark the end of an interest
as well as its beginning. An interest of contingent duration (a right to something
until the happening of an event which may never happen, or subject to forfeiture if
it happens) can be carried out of a fixed duration interest as well as out of an
interest of indefinite duration. In both cases the principle of residuality applies, in
just the same way as when an interest of a fixed duration is carved out of a longer
interest or one of indefinite duration. For every interest of contingent duration,
there exists in the wings another interest where the commencement of enjoyment
depends on the happening of the contingency which will end the contingent
duration interest.
There may come a point when it is certain that the contingency can never occur. If
and when that happens the alternative interest lapses, and the contingent duration
interest loses its limitation-there will be nothing to stop it continuing indefinitely.
There are two ways in which an interest can have a contingent length like this. The
first is where the duration of the interest is from the outset measured by reference
to the happening of the future contingent event. This is a determinable interest. The
distinguishing feature of a determinable interest is that on the happening of the
future contingency the determinable interest itself automatically expires, and the
alternative reversionary/ remainder waiting in the wings is automatically converted
into an absolute unconditional entitlement.
The second is where the interest is made terminable on the happening of the
contingency. This is an interest subject to a condition subsequent. An interest
subject to a condition subsequent is an interest of a specified duration (perpetual,
life long, or for a period of years) which will become terminable prematurely if and
when a future event occurs. The conceptual difference from a determinable interest
is that whereas in the latter the contingency measures the duration of the interest, in
the former it defeats or of forfeits an interest prematurely. However, practically
such an interest automatically confers on someone else a right of re-entry (right of
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forfeiture) and the happening of the contingency makes that right of re-entry or
forfeiture exercisable. Unless and until it is exercised, the original interest
continues.
Requirement of certainty
Whether a contingency trigger off enjoyment, measures the duration of an interest,
or confers on someone a right to terminate it prematurely, the contingency must be
certain, if it is not, it will be void. The contingency must be certain in the sense of
being objectively ascertainable as a matter of fact, even if difficult to prove in
practice.
2. Legal and equitable interests
Whenever a new property interest is created by statute, it will be expressly stated
whether the interest is to be legal or equitable. Secondly, some long established
property interests have recategorized, especially interests in land. Thus, in order to
limit the number of legal interests that could co-exist in any one piece of land, the
UK law of Property Act 1925 recategorized some legal interests as equitable and
produced a short, definitive and closed list of interests that could be legal, for
example a life estate in land can now only be equitable.
3. Fragmentation of management, control and benefit
This entails three mechanisms for fragmenting the management, control and
beneficial aspects of ownership.
 The first is corporate property holding where property is held by an artificial
person such as a company.
 The second is managerial property holding where property is held by a non-
beneficial owner. In other words, held or controlled by one person for the
benefit of another. For example, where property is held by trustees.
 The third category is group property holding where property is held not by a
single person but by a group of people for their own benefit, whether as co-
owners or as communal owners.
4. Concurrent interests
Only legal entities can hold private property rights. It is possible for two or more
legal entities to hold the same private property interest simultaneously through
private co -ownership. Private co-ownership must be distinguished from public
ownership and communal ownership. Private co-ownership resembles communal

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ownership in that co-owner can be excluded from use and benefit by another co
-owner, and no co-owner has a separate interest during the co-ownership.
However, it differs from communal ownership in that, in general in private co-
ownership each co-owner has a separable share in the co-owned property, and once
it has been notionally separated off, that share can be sold or bequeathed to
someone else, who thereby becomes a new member of the co-ownership group. By
the same token, every private co-owner continues to have a proprietary entitlement
unless and until it is positively transferred to someone else or a joint holder dies.

Co-ownership
Co-owners must comprise a fixed (as opposed to fluctuating) group of ascertained
legal entities. The hallmark of co-ownership is that ownership has been split at a
quantitative, and not aa qualitative level.
Essentials of co-ownership
Essentially, co-ownership involves two or more persons enjoying what are called
concurrent interests. All concurrent owners are entitled to possess and use the
property. If it produces an income, they share it equally (when joint), or in
proportion to their holdings (in common). To alienate the property, they must all
agree and must concur in physical division. The Common Law recognized five
types of concurrent interests; namely
Coparceny
tenancy in partnership
tenancy in common
joint tenancy
tenancy in entirety
Coparceny and Tenancy in partnership
At Common Law under the system of primogeniture the eldest son was the heir. If
a decedent had only daughters, the daughters took as coparcentors. Coparceny was
similar to but not identical with a tenancy in common. This type of concurrent
interest is of no importance as primogeniture as well as coparceny never took hold
in Kenya. Tenancy in partnership was largely superseded by statutory partnership
law.

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Ownership in common
In ownership in common (also called ‘tenancy in common’) each co-owner has a
separate but undivided (and not necessarily equal) interest in the property.
Traditionally it is called ‘undivided’ share meaning that while the share itself is
separate from the others, it does not entitle its owner to a particular physical part of
the asset. But the ‘undivided’ share is descendible and can be alienated without
needing the consent of the other co- owners and may be conveyed by deed and
pass by will or on intestacy.
There is no survivorship rights between tenants in common. For example, T
devices Blackacre “to A and B”. A and B are tenants in common. If A conveys his
interest to C, B and C are tenants in common. If B then dies, B’s heir is a tenant in
common with C. Each tenant in common owns an undivided share of the whole.

Fragmentation of Ownership 2

Joint ownership
Joint ownership (also called ‘joint tenancy’) involves a situation where each joint
tenant is fully entitled to the whole of the co-owned interest subject only to the
exactly similar entitlement of each of the other joint owners. By a Common Law
fiction, joint tenants together are regarded as a single owner, and each tenant is
seised per my et per tout (by the share or moiety and by the whole). In theory
then, each owns an undivided whole of the property. That being so, when one joint
tenant dies, no interest jointly owned descends under the deceased’s will or by
intestacy, rather the estate simply continues in survivors freed from the
participation of the decedent, whose interest is extinguished. The interest will vest
in the surviving tenant or tenants jointly. Furthermore, no individual joint owner
can sell or give away his joint ownership interest.
However, he can always convert his joint ownership interest into an interest in
common. Since the original notion was that all joint tenants were seised together as
one owner, the common Law insisted that their interests be equal in all respects. In
particular, four unities were essential to a joint tenancy- time, title, interest and
possession. Thus, joint ownership is commonly said to comprise four unities of
possession, interest, title, and time, while only possession is a necessary

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precondition for a tenancy in common. Dean J. in Corin v. Patton (1990) 169

CLR 540 at 572-3 cautioned how the ‘traditional ritual’ of the four unities ‘cloaks
some obscurity of precise meaning, some overlapping between the unities and
some conceptual difficulties about the essential character of joint tenancy’.
Unity of possession is critical to co-ownership because possession is a component
of that shared right. It expresses the idea that all co -owners have the same right to
use the thing as their fellow co-owners. Each must have a right to possession of the
whole. After a joint tenancy is created, however, one joint tenant can voluntarily
give exclusive possession to the other joint tenant.
Unity of interest goes beyond the unity of possession signifying not only that all
the co -owners have the same right to use the co -owned thing during the currency
of their co-ownership but that the right to use arises from the same interest. It is in
many respects the one unity that differentiates joint tenancies from tenancies in
common.
Thus, under a joint tenancy all co-owners own the same shared Interest, undivided
and identical, rather than separate shares in the same interest which is the hallmark
of a tenancy in common. Bagnall J. noted in Cowcher v. Cowcher [1972]1 WLR
425: ‘[a] joint interest in equal shares is a contradiction in terms’ because each
joint tenant is joint owner of the whole rather than an individual owner of his share
in the whole.
From the unity of possession requirement, the interests of the tenant in common
have not been divided up (‘undivided share’) but it is nevertheless a share in the
whole rather than a shared whole that they each own. It follows that the quantum
of each share can (but does not have to) vary under a tenancy in common.
Unity of title is concerned with how the interest originally arose and requires each
joint tenant to derive his interest from the same act or document. All joint tenants
must acquire title by the same instrument or by joint adverse possession. A joint
tenancy can never arise by intestate succession or other act of law. The courts have
little difficulty side- stepping the formalistic implications of this unity. Thus, in
Antoniades v. Villiers where two separate but identical leasehold agreements each
signed by one of two purported tenants in common were construed as two parts of
the same document granting a joint tenancy to the pair.

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Unity of time simply requires that the interest of each owner must be acquired or
vest at the same time which of course follows from their each owning the same
interest derived from the same title.

Right of survivorship
The single most important factor distinguishing joint tenancies from tenancies in
common is the right of survivorship, which flows logically from the joint tenant’s
unity of interest. Under the right of survivorship, the interest of a joint tenant who
predeceases one or more surviving joint tenants simply ends with his death. It does
not pass to the remaining joint tenants, nor anyone else for that matter, but is
simply determined by his death with a consequent reduction in the number of joint
tenants until only one remains. At this point the joint tenancy comes to an end,
enabling the sole survivor to do as he wishes with his property, including of course
the right to pass his title by will or on intestacy.
When joint tenants die in a common disaster, the Uniform Simultaneous Death
Act (USDA) enacted in various states in the US provided that under circumstances
where there is no sufficient evidence of the order of death, the jointly owned
property would be distributed one half as if one joint tenant had survived, and one-
half as if the other joint tenant had survived. This half and half approach led to
litigation in which the representative of one of the individuals attempted, through
the use of some gruesome medical evidence, to prove that the one he or she
represents survived the other by an instant or two.
The USDA was revised to provide that unless a governing instrument such as a
will provides otherwise, the half and half approach is applicable in the absent of
clear and convincing evidence that one of the joint tenants survived the other by
120 hours: USDA, § 4 (1993).
If one joint tenant murders the other, the American Uniform Probate Code §2-
803(c)(2) (2008) provides that the murder severs the joint tenancy and converts it
into a tenancy in common. The killer loses his right of survivorship in the
decedent’s share.
Joint tenancies are popular particularly between husbands and wives because a
joint tenancy is the practical equivalent of a will but at the joint tenant’s death
probate of the property is avoided as no interest passes on the joint tenant’s death

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since the decedent’s interest vanishes, and the ownership of the whole continues
without the decedent’s participation.
Moreover, a joint tenant cannot pass her interest in a joint tenancy by will.
Inasmuch as the joint tenant’s interest ceases at death, a joint tenant has no interest
that can pass by will. The idea that a joint tenant’s interest ceases at death also has
important consequences for creditors. If a creditor acts during a joint tenant’s life,
the creditor can seize and sell the joint tenant’s interest in property, severing the
joint tenancy. If the creditor waits until the joint tenant’s death, the decedent joint
tenant’s interest has disappeared, and there is nothing the creditor can seize.

Severance at common law

The English Common Law disliked division of land into smaller parcels (a policy
also underlying primogeniture) and, therefore, favoured joint tenancies over
tenancies in common. If an instrument conveying property to two or more persons
were ambiguous, a joint tenancy resulted.
However, Equity has a distaste for the inequities of joint tenancy and has created a
presumption whereby a tenancy in common arises in certain types of co-ownership
such as business partnerships: Malayan Credit v. Jack Chia-MPH Ltd [1986]
AC 549. In addition, today the presumption favouring joint tenancies has been
abolished in most countries with statutes providing that a grant or devise to two or
more persons creates a tenancy in common unless an interest to create a joint
tenancy is expressly declared.
The Darwinian logic of a principle in which the spoils go to the fittest (or at least
the longest surviving) is often said to be ameliorated by the ease with which a joint
tenancy can be severed, allowing the joint tenant henceforth to hold his interest
under a tenancy in common. It is usually said that there are three ways of severing
at common law: acting on one’s share, mutual agreement, and mutual conduct.
Page Wood VC in Williams v. Hensman (1861) 1 J & H546 at 557-8; 70 ER
862 at 867 stated: “A joint tenancy can be severed in three ways: in the first place,
an act of anyone of the persons interested operating upon his own share may create
a severance as to that right. The right of each joint tenant is a right by survivorship
only in the event of no severance having taken place of the share which is claimed
under the jus accrescendi [i.e., the right of survivorship]. Each one is at liberty to

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dispose of his own interest in such manner as to sever it from the joint fund-losing,
of course, at the same time, his own right of survivorship.
Secondly, a joint tenancy may be severed by mutual agreement. And, in the third
place, there may be a severance by any course of dealing sufficient to intimate that
the interests of all were mutually treated as constituting a tenancy in common.
When the severance depends on an inference of this kind without any express act
of severance it will not suffice to rely on any intention with respect to the particular
share declared only behind the backs of the other persons interested. You must find
in this class of cases a course of dealing by which the shares of all the parties to the
contest have been effected as happened in the case of Wilson v Bell and Jackson
v Jackson.”
Acting on one’s share is an expression of the general principle that the destruction
of any of the unities of interest, title or time destroys the very basis of joint
tenancy. Thus, a joint tenant can unilaterally convert a joint tenancy into a tenancy
in common by conveying his interest to a third party. The joint tenant destroys one
or more of the unities in this way. In Riddle v. Harman 162 Cal. Rprt. 530 R,
deceased purported to convey her interest from herself as a joint tenant to herself
as tenant in common.
The court noted that an indispensable right of each joint tenant is the power to
convey his or her separate estate by way of gift or otherwise without the
knowledge or consent of the other joint tenant and to thereby terminate the joint
tenancy. However, at Common Law one could not create a joint tenancy in himself
or another by a direct conveyance. It was necessary for joint tenants to acquire
their interests at the same time (unity of time) and by the same conveyancing
instrument (unity of title).
Therefore, in order to create a valid joint tenancy where one of proposed joint
tenants already owned an interest in the property, it was first necessary to convey
the property to a disinterested third party, a ‘strawman’, who then conveyed the
title to the ultimate grantees as joint tenants.
However, the court further noted, in California, the unities requirement has been
disregarded as one of the obsolete ‘subtle and arbitrary distinctions and niceties of
the feudal common law’. Californian law, therefore, allows the creation of a valid
joint tenancy without the use of a strawman. The Court held the conveyance by R
effective, and that one joint tenant can unilaterally sever the joint tenancy without
the use of an intermediary device.
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Mutual agreement is a recognition that joint tenants if they wish can agree to sever
the joint tenancy and henceforth co-own as tenants in common while still
maintaining unity of possession but no longer subject to the lottery of survivorship.
Mutual conduct focuses on the course of dealings between co-owners and takes
account of their mutual assumptions and aspirations in respect of the co-owned
property.
Tenancy by the entirety
A tenancy by the entirety is created only between husband and wife. It is like a
joint tenancy in that the four unities and a fifth, the unity of marriage, are required,
and the surviving tenant has the right of survivorship. However, husband and wife
are considered to hold as one person at Common Law. They do not hold by the
moieties; rather both are seised of the entirety, per tout et non per my.
As a result, neither husband nor wife can defeat the right of survivorship of the
other by a conveyance of a moiety to a third party, only a conveyance by husband
and wife together can do so. Neither the husband nor wife acting alone, has the
right to judicial partition of property held as tenants by the entirety.
Divorce terminates the tenancy by the entirety because it terminates the marriage
which is a prerequisite for a tenancy by the entirety; absent some agreement to the
contrary, the parties usually become tenants in common.
In the case of husband and wife, the Common Law presumed an intention to create
a tenancy by the entirety, absent some clear indication to the contrary. The
presumption still has force in some countries that have the tenancy, but in others, a
conveyance to husband and wife is presumed to be either a tenancy in common or
joint tenancy.
Other forms of co-ownership
1. Commonhold
Commonhold is a new mechanism for managing property that is co-owned that
was introduced in the UK to alleviate the problems faced by owners of flats
particularly in multi-unit developments where the leasehold model has not
generally proved a success in providing effective management of the common
areas and resources.

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Commonhold uses the company structure to provide the freehold owners of

individual units with membership of a commonhold association with its own legal
personality in which the common parts of the development are vested.
Only the unit holders are permitted to belong to the association which is governed
according to rules and regulations agreed by the membership and publicized.
2. Unincorporated associations
Unincorporated associations lack a corporate identity and have no legal
personality. They occupy a twilight legal world in which their existence is admitted
but not wholly catered for. When property is purportedly given to such an entity,
the problem is how to vest property in them. The simplest method was to regard
the property as a gift to the existing members of the association, a method which
has its problems.
The other method was to gift the property on trust for purposes of the association
or for present and future members.

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PROPERTY THEORY

Possession
Possession is the intentional exclusive physical control of a thing. A person who
takes physical control of land or goods, with the intention of excluding all others
from it or them, acquires possession of it or them as a matter of law. This is the
case even if the taking of control was unlawful.
Relationship of possession and ownership
In his essay ‘Ownership’, Honore puts the right to possession as the first of his
necessary ingredients in the notion of ownership, and describes it as ‘the
foundation on which the whole superstructure of ownership rests’. Thus, in a sense,
possession is simply an ingredient of ownership, and it is inherent in our idea of
ownership that an owner of a thing has the right to take and keep physical control
of it, to the exclusion of all others. However, the interrelationship between the two
is more complex.
Possession
Procedurally, English law is more concerned with possession than ownership. The
law regards any person who is in fact in possession of land or goods as lawfully in
possession, and any invasion of that possession as unlawful unless made by
someone with a better right to possession. In other words, once a person has
acquired possession, by any means whether lawful or unlawful, they thereby
become entitled to possession as against everyone except a person with a better
right to possession.
Possession plays a key role in proving entitlement to a thing. It is much easier to
prove possession than ownership. Most things-even tangible things-are not
authoritatively labelled with the name of the owner, and there is no gigantic
universal register on which ownership of all things is recorded, so there is no
obvious way of proving conclusively non-ownership of a claim to own a thing.
Possession on the other hand is relatively easy to demonstrate by showing
exclusive physical control of a thing with the intention of excluding all others from
it.
Possession is also a reasonably good indicator of ownership because as a matter of
observable fact, in the vast majority of cases, possession coincides with ownership.

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Consequently, in our legal system, the basic principle that has evolved is that
possession is prima facie proof of title. A possessor is assumed by law to be the
owner in the absence of evidence to the contrary.
Since possession of a thing is a right in relation to the thing enforceable against
third parties, it is by definition proprietary. It is also proprietary in the sense that
the right acquired by taking possession is transmissible: Pollock and Wright,
Possession in the Common Law, state: ‘ the Qualified right of property which
arises from possession must therefore be a transmissible right, and whatever acts
and events are capable of operating to confirm the first possessor in his tenure must
be capable of the same operation for the benefit of those who claim through him by
such a course of transfer as would be appropriate and adequate, if true ownership
were present in the first instance, to pass the estate or interest which is claimed.’
Ingredients of possession
In order to determine whether the control over, or the use to which a person puts a
thing is such that that person can be said to be in possession of a thing, the law
looks at two aspects of the relationship between the person and the thing.
 First the nature and degree of physical control exerted by the person over the
thing, and
 secondly, the intention with which that control is exerted (animus
possidendi).
Thus, what is required is that the person should have effective control of the thing
with the intention of excluding the rest of the world from it.
i. Factual control
The nature and degree of factual control required varies depending on several
factors. While it is said that control must be exclusive so as to exclude others from
the use of thing, this requirement varies depending on the circumstances. Pollock
and Wright state that ‘physical possession is exclusive, or it is nothing.’
a. Relation of title and factual control
First, a person with the better title will find it easier to prove factual control than a
person with a weaker title or no title at all. In Jones v. Maynard, 1849, it was said:
‘if there are two persons in a field, each asserting that the field is his, and each
doing some act in the assertion of the right of possession, and if the question is,

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which of those two is in actual possession, I answer, the person who has the title is
in actual possession, and the other person is a trespasser.’
It follows that different degrees of factual control are required of different parties,
depending on the circumstances. It is easier fora rightful taker to prove she is in
possession than it is for a wrongful taker. It is also difficult for any taker to prove
sufficient acts of intentional exclusive control for as long as the rightful possessor
is still trying to exert some degree of control, however slight.
b. The nature of the thing possessed
Secondly, the nature and degree of control required varies depending on the nature
of the thing said to be possessed. Some things are more susceptible to exclusive
physical control than others, and in such cases a person claiming to be in
possession is likely to have to demonstrate total physical control by showing that
they can prevent all others from using or intruding on the thing.
In the case of other things, however, it may be impossible, pointless or
unnecessarily expensive to ensure that all outsiders are excluded. In such cases,
very attenuated physical control may suffice. Thus, in Fowley Marine
(Emsworth) Ltd v. Gafford [1968]2 QB 618 CA, the Plaintiff was held to be in
possession of the bed and foreshore of a channel of tidal water over which there
were public rights of navigation. Since there was no question of the Plaintiff being
able to exclude anyone from the channel, the court accepted that the fact that the
Plaintiff had laid (and licenses others to lay) permanent moorings in the bed was
sufficient to establish possession.
c. The purpose for which the thing is used
If the use to which a thing is put does not require exclusion of others from its use,
can there be possession? It may be that the answer is yes, if, even though they do
not wholly exclude others all the time, it can nevertheless be demonstrated that
they have an ability and intention to prevent others making use of the property.
It may also be that possession is simply an inappropriate concept in the context of
such use of things, and that a more simple and fruitful way forward would be to
recognize that in such cases, possession is not an appropriate prerequisite for title.
d. Control through agents and control of contents
Finally, a person can be in possession of a thing without personally having any
physical control over it, if someone else has physical control on his behalf. Also,

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the person in possession of a thing is also prima facie in possession of all its
contents. However, complications arise when the possessor is unaware of either the
existence of the contents or their precise nature.

ii. Intention required

a) Intention to exclude
There must be an intention ‘in one’s own name and on one’s own behalf, to
exclude the world at large, including the owner with the paper title if he be not
himself the possessor, so far as is reasonably practicable and so far as the processes
of the law will allow’: Slade J. in Powell v. McFarlane. What is required:
First, it did not matter that the acts of possession were performed in the mistaken
belief that the actor was owner, for such a person can have no intention to exclude
the true owner. He does however have the intention to exclude the whole world,
and that is all that is required. Those who take possession in the mistaken belief
that they are entitled to do so are as much in possession as those who consciously
take as trespassers.
Secondly, it is not necessary that the person assumed control with the intention of
acquiring or assuming ownership; what is at issue is possession.
b. Effect of ignorance
At first sight, the necessary element of intention might appear to be wholly lacking
in a situation where a person is in possession, i.e., in intentional physical control of
something, whose existence he is unaware. In most cases a person in intentional
control of a thing can be safely assumed to intend to control its contents, and
difficulty only arises when the contents prove to be different from those
anticipated, or wholly unexpected.
On the other hand, there are circumstances where it would be inappropriate to
assume that a person in control also intends to assert control over the contents for
example, goods abandoned in the public part of a shop, or an airport lounge open
to the public.

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Possession of land
Whereas possession means intentional exclusive physical control, it is possible to
be in intentional exclusive physical control of land without being in possession of
it. The essential distinction is between possession and occupation.

Possession and occupation

A person granted the right to possession of land acquires a proprietary interest,
whereas a person granted a right to occupy it-even if it is exclusive occupation-
acquires only a personal right. An absolute owner of land can of course grant
someone a personal right to occupy the land fora limited period without granting
him possession of the land. Such a right-a licence -might be exclusive in the sense
that it gives the grantee a personal right to exclude the owner for the duration of
the permission. Nevertheless, the right is purely personal and not proprietary and it
will not be enforceable against anyone other than the grantor (Hill v. Tupper).
The distinction is important because a lease characteristically of private property
interests, is in principle assignable and enforceable against third parties whereas a
licence is not.
Secondly, as regards statutory protection of occupiers has traditionally been
available only to tenants, and not licensees. Thirdly, it is sometimes said that
licensees, unlike leases are revocable by the grantor. However, the truth is that in
cases of leases there are strict legal rules governing the permissible duration of the
lease and the mechanisms by which it can be terminated. In the case of licensees,
the duration of the permission to occupy and the question of whether it can be
withdrawn depends entirely on the contract agreed between the parties.
Lastly, the caveat emptor-buyer beware- principle generally applies to leases, but
not licences. Thus, a landlord, subject to a few exceptions gives no warranty about
the state and condition of the land or that it is fit for the purpose for which it is let.
This is not true in relation to licences, so that in this respect at least licenses of land
can be in a stronger position that lessees.

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Protection of possession
To a large extent, English law protects property rights by protecting possession
rather than protecting ownership. In this respect, among the peculiarities of the law
is that the main mechanism for dealing with complaints about infringement of
property rights is the law of torts. So, although property law provides a direct
action for the recovery of possession of land, there is no equivalent action for
recovery of goods. Instead, when wrongfully deprived of goods, an action will be
in conversion. Similarly, an action for damage to goods or interference with use
and enjoyment of goods will be dealt with by the tort of trespass to goods (and
possibly negligence).
The problem is that in tort, the emphasis is on the commission of a wrong by the
defendant, and this gives rise to a significant complication in many areas of the law
relating to goods and to necessary differences between rules applicable to land and
those applicable to goods.

TITLE
Goode in Commercial Law at 52-54 states of title: ‘A person’s title in an asset
denotes the quantum of rights over it which he enjoys against other persons,
though not necessarily against all other persons. His title measures the strength of
the interest he enjoys in relation to others.’ Title can be legal or equitable.
Equitable interests arise where the legal title holder intends to transfer or grant a
legal estate or interest to the grantee but for some reason or another has not yet
completed the process necessary to carry out the intention. When this happens, the
intended transfer is effective in equity although not yet effective in law. Thus, the
grantee has an equitable interest in contrast to the legal interest he intended to get.
In our legal system, it is particularly important to distinguish a person’s entitlement
to an interest from the interest itself because our system is primarily concerned
with relativity of title rather than with absolute title. In other words, when a person
claims to be entitled to a particular interest in a thing, it is usually sufficient for
him to prove that his entitlement, or title, to the interest is better than that of the
person disputing the claim; it is rarely necessary for him to prove absolute
entitlement.
When two or more people have titles to the same interest in a thing, the rival titles
will be recognized by law, but they will have different relative strengths, and in a
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dispute about entitlement to the thing (or more accurately entitlement to ownership
or to some other interest in a thing) between any two of them, the court is
interested only in the relative strengths of their titles. In other words, one need only
show that he has a better title than the other party to the dispute, not that he has a
better title than anyone else in the world.

Acquisition of title
The person with the inferior title will not usually be able to defeat the claim of the
other by demonstrating that there is a third party, not party to this dispute, who has
the best title of all. The possibility of rival titles arises because titles can be
acquired not only be derivative acquisition, but also by original acquisition.
a. Derivative acquisition
Derivative acquisition covers those cases where the title is derived from that of the
previous title holder. This can be by way of a disposition such as selling or giving
or by way of inheriting. Alternatively, the interest may derive from that of the
predecessor by grant-retaining the interest but granting a lesser interest carved out
of it. For example, the holder of a freehold may grant a lease in it. In most cases a
property interest passes from one person to another, or is carved out of a larger
property interest because the parties intend this to happen and deliberately take
steps to achieve it.
How property interests pass from one person to another whether it involves a gift
or is part of a bargain or inheritance is essentially a matter of formalities, the
formal requirements that the law imposes for a property interest to pass from one
person to another. The classic function of formalities was provided by Lon Fuller
in ‘Form and Consideration’ (1941) 41 Columbia Law Review, 799, where he
stated that formalities perform three functions: evidentiary function, cautionary
function and ‘channeling’ function.
For the evidentiary function, the formal requirements such as writing or attestation
by a witness provides evidence of the happening and meaning of the event, for
example contract or transfer of an interest in land. This is for the benefit of the
parties themselves and their successors should there later be disagreement, because
it means there will be adequate evidence which courts can adjudicate. Other writers
have said that formalities such as witnesses and signatures can also provide

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evidence of the identity of the parties and that they knew what they were doing and
did it intentionally rather than inadvertently.
As for the cautionary function, many formalities are intended to put people into
extra trouble so that they are made aware of the significance of what it is they are
doing. This will force them to stop and think and guard against ‘rash and ill-
considered decisions that they may regret later’: Patricia Critchley, ‘Taking
Formalities Seriously’ in S. Bright and J.K. Dewar, Land Law Themes and
Perspectives, Oxford University Press, 1998, Chapter 20. She also says that the
unfamiliar formality might also prompt people to seek legal help in completing
documentation, and the lawyer might be able to give them general advice about the
implications of the purposed transaction and ‘should be able to detect and prevent
the application of external pressure’.
As to the channeling function, rules stating that transactions will not take legal
effect unless put in a legal form offer ‘channels for the legally effective expression
of intention’. They tell those who do not want transactions to have a particular
legal effect how to avoid that happening, and they also tell those who want them to
have particular effect how to achieve that end. The message can be read both by
courts in disputes and by third parties affected by the interests. Joseph Perillo, ‘The
Statute of Frauds in the Light of the Functions and Dysfunctions of Form’, (1974)
43 Fordham Law Review, 39 at 49 makes the point that formalities can have the
advantage of ‘earmarking’ the point at which promise and negotiation turns into
obligation.
Critchley identifies two other functions. First, formalities help in clarifying the
terms of the transaction because ‘the very fact of reducing the agreement to writing
will help to highlight gaps or uncertainties in its terms’. Secondly, publicity, that
some interests such as mortgages and charges pose such threats to prospective
purchasers that it is justifiable to insist that they should be put in such a form that
the existence and terms of the interest are made apparent to the whole world.
Requirements of writing and registration can also provide both a paper record of
transactions on which tax can be levied, and also data from which statistical
evidence can be gathered.
The main disadvantage is that the strict implementation of formalities can lead to
unjust outcomes in individual cases. As Lord Nicholls said in Wilson v. First
County Trust (No. 2) [2003] UKHL 40, ‘[t]he unattractive feature of this
approach is that it sometimes involves punishing the blameless pour encourager les

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autres’. Individuals are made to suffer undeservedly, or are allowed to break

promises, defeat legitimate expectations or keep undeserved benefits, solely in
order to preserve the integrity of the system.
The other disadvantage is that formalities add to costs of transactions, not so much
because they involve direct expenditure, but because they are designed to put
people into extra trouble. Also important is the point at which property in
derivative acquisition passes from one person to It is essential that property should
pass at a fixed and ascertainable point so that everyone knows whether or not, at
any time a thing is or is not affected by interest.
b. Original acquisition
Title can be original in the sense that it is not derived from anyone else’s title.
Original acquisition occurs in three types of situations.
i. Original interest holder
First, is when someone becomes the first ever (hence original) interest holder in the
thing. The law treats a person as having an interest in a thing by virtue of having
created it or mixed her labour with it in the Lockean sense, or by having taken an
unowned thing and reducing it into private property by taking possession of it.
ii. Title by possession
A new title to a thing can arise notwithstanding the fact that someone else already
has a title to that thing. The new title does not derive from, but is independent of,
the pre-existing title. The most significant way of acquiring a new title to a thing to
which someone else is already entitled is the same as the way of acquiring a title to
an unowned thing, i.e., by taking possession of it.
It is central to our property law system that possession is itself a root of title, and
this applies not only to unowned things but also to things to which someone else
already has title. The basic principle is that, by taking possession of a thing, a
person becomes entitled to possession of it against everyone except a person with a
better right to possession. The title acquired is a new one and is not derived from
any previous or current interest holder. It is not effective against a pre-existing title
holder but is effective against everyone else.
It is important to note that a title acquired by taking possession can be defeated
only by someone with a better right to possession of the thing in question, it cannot
be defeated by someone who has a pre-existing interest in the thing which does not

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carry with it the right to possession. The person who is dispossessed thereby
acquires a right to recover possession.

Title, eminent domain, function of property

Adverse possession
The right to recover possession will be lost if not exercised within the limitation
period. In this context, a title lost because it has not been exercised within the
limitation period is extinguished; it is not transferred to the usurper. The title the
usurper acquired by taking possession in the first place simply becomes no longer
subject to challenge from the person whose title is extinguished. Those entitled to
possession will be deprived of all entitlement without compensation merely as a
result of neglecting to take action against usurpers in time.
The adverse possessor acquires title by taking possession, and a claimant can only
succeed if she can demonstrate that she has indeed been in possession for the
requisite period. In J.A. Pye (Oxford) Ltd v. Graham [2003] UKHL, the House
of Lords, per Browne Wilkinson, L.J. emphasized that the only question is
whether the squatter has been in possession in the ordinary sense (paragraph 35).
At paragraph 40 he stated: ‘To be pedantic the problem (by definition) could be
avoided by saying there are two elements necessary for legal possession:
 A sufficient degree of physical custody and control (‘factual possession’)
This generally means that the factual possession must be open and notorious, so
that they would put reasonable and attentive property owners on notice that
someone is on their property, and continuous for the statutory period. If the adverse
possessor’s entry were not reasonably observable, the owner could not be blamed
for being dormant. Moreover, continuous entry for the statutory period does not
mean literal constancy. An adverse possessor is permitted to come and go in the
ordinary course, given the nature of the property in question. The continuity
principle reflects, harmoniously, both the earning and sleeping principles.
In Ewing v. Burnett 36 U.S. (11 Pet.) 41 1837, adverse possession of an improved
lot in Cincinnati, used principally for digging sand and gravel, was established
when the claimant paid taxes on the lot, from time to time dug sand and gravel on
it, permitted others to do so, and brought actions for trespass against others for

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doing so without his permission. Thus, adverse possession may exist even if the
occupant does not reside on the property and for long periods does not use it at all.
The sort of entry and possession that will ripen into title by adverse possession is
use of the property in the manner that an average true owner would use it under the
circumstances, such that neighbours and other observers would regard the occupant
as a person exercising exclusive dominion. In this respect, an entry onto land
adverse to the rights of the property owner creates the cause of action -for trespass
-and thereby triggers the statute of limitation. It also helps to stake out what it is
the adverse possessor might end up claiming.
 An intention to exercise such custody and control on one’s own behalf
and for one’s own benefit (‘intention to possess’)
This signifies that the possession should be adverse and under a claim of right, or
as otherwise expressed, hostile and under a claim of title. “...any entry and
possession for the required time which is exclusive, continuous, uninterrupted,
visible and notorious, even though under mistaken claim of title, is sufficient to
support a claim of title by adverse possession”, Mannillo v. Gorski [Supreme Court
of New Jersey, 1969, 255 A. 2d 258].
It is crucial to understand that, without the requisite intention, in law there can be
no possession. The intention as well as the paper owner’s knowledge of the adverse
possession are irrelevant, and time begins to run as soon as adverse possession is
taken, whether or not the paper owner is aware of it.
While an adverse possessor does not take over the paper owner’s interest,
nevertheless rights in the land enforceable against the paper owner will also be
enforceable against the adverse possessor, just as they would be against anyone
else who acquires an interest in the land without paying for it.
As to the theoretical justifications of adverse possession, John Stuart Mills, in
Principles of Political Economy, Book II, Section 2, argued that there comes a
point when possession has been established for such a long period that it would be
unjust to interfere with it, even in favour of someone who can prove that it was
wrongly taken from him or his predecessors in the first place.
Margaret Jane Radin, “Time, Possession, and Alienation” (1986)64 Washington
University Law Quarterly, 739, on her part states that this is because of the
importance of the bond between persons and possessions which justifies not only
rewarding the first taker, but also protecting her against even the ‘true’ owner once
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the bond between true owner and possession has been slackened by time to the
point that it is now weaker than the bond that has been built up between the
wrongful taker and the possessions. Holmes also explains that:
“A thing which you have enjoyed and used as your own for a long time, whether
property or an opinion, takes root in your being and cannot be torn away without
your resenting the act and trying to defend yourself, however you came by it”,
Oliver Wendell Holmes, “The Path of the Law”, 10 Harv. L. Rev. 457, 476-477
[1897].
All the principles allowing possessor to acquire titles in possession, and
extinguishing paper titles after long adverse possession apply with more or less
equal force in relation to goods. However, there are three differences between land
and goods. First, the law of theft applies to goods and all other property, but not
land. ‘Bad faith’ takers of goods are therefore treated significantly differently from
bad faith takers of land. The second difference is that legal title to goods is
protected by the law of torts rather than the law of property. The only action
available to owners seeking to recover their goods are tort actions. There is no
property action equivalent to the action to recover land.
The most important difference is that whereas in actions to recover land time
begins to run when the taker takes possession, in the case of the equivalent actions
relating to goods time does not start to run unless and until the tort of conversion is
committed. A further complication is that time never runs in favour of a thief
although it will run in favour of a good faith purchaser from a thief. Another
important difference is that questions about possessory title to goods tend to arise
when the true owner has lost the goods, something that cannot happen in the case
of land.
iii. Innocent purchaser for value
Thirdly, someone with no title at all to a thing nevertheless may purport to transfer
title to an innocent purchaser. In Bishopgate Motor Finance Corp Ltd v.
Transport Brakes Ltd, [1949]1 KB 322, 336-7, it was said: ‘In the development
of our law, two principles have striven for mastery. The first is for the protection of
property: no one can give a better title than he himself possesses. The second is for
the protection of commercial transactions: the person who takes in good faith and
for value without notice should get a good title.’

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The general rule in English Law is -nemo dat quod non habet-no one can give a
better title than he himself has or has the authority to confer. However, there are
exceptions to the nemo dat rule, and when they apply the purchaser acquires a title
which is not only good against the rest of the world but will also defeat pre-
existing title.

Relativity of title
In property disputes, the question at issue tends to be whether one party has a
better claim to a property interest than another, and not whether either of them is
the absolute or ‘true’ owner of it. What each party has to prove is that he has a
better title than the other, not that he has a better title than anyone else in the whole
world. And, as a general rule, the holder of the better title will win against the
holder of the lesser title, even if the holder of the lesser title can prove that
someone else who is not a party to the litigation is the true owner of the interest.
Property interests are after all abstract things, even though the subject matter of the
interest may be concrete enough. In principle, three things are relied upon to prove
entitlement to an abstraction: possession, provenance and registration.
a. possession
Being in possession of a thing gives a good title to an interest in the thing, effective
against all except those who have a better title. The rule that possession confers
title is central to our title proving system. The effect of the rule is that the outside
world can, for the most part, safely assume that apparent owners are actual owners.
b. provenance
The prospective seller who is in possession of a thing can best show that there is
unlikely to be anyone anywhere with a better title to it if she can show its
provenance-if she can explain the origin and subsequent history of the thing,
tracing the devolution of her title down from that of the original interest holder.
c. acquisition by other methods
There are a number of ways by which titles to, and other interests in things can be
acquired and lost other than express grant or transfer. Titles and interests can arise
by implication of law such as estoppel, or resulting or constructive trust or through
the presumed intention of the parties. Also, titles and interest can automatically

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pass from one person to another by operation of law, for example on death or
bankruptcy.
Interests can also arise without an express grant by long user. An interest in
someone else’s property can be acquired by prescription, a process which involves
using someone else’s property in a particular way for a sufficiently long period.
The process applies not just to private property rights, but also to communal
property rights and public rights such as public rights of way.

Distinguishing possession and prescription

English law never treated long enjoyment as a means of acquiring title. In English
law non- owners instantly acquire titles to land and other tangibles by the mere fact
of taking factual possession, and the only function of lapse of time is to bar the true
owner from his right to object and extinguish his better rival title. The adverse
possessor’s title is choate and complete from the outset: it is not acquired by long
use.
However, while ownership cannot be acquired by long user, particular user rights
can. If a particular use is made of someone’s land for a sufficiently long time, and
the use is of a type, falling short of possession or occupation, that could have
constituted a property right if expressly granted, then the use will ultimately be
legitimized. So, while in adverse possession law long use merely operates to
eliminate rival titles, prescription is a means by which proprietary rights are
acquired over a long period of time, by passage of time, the right in question
remaining inchoate until the appropriate time has elapsed.
In Dalton v. Angus (1881) LR 6 App. Cas. 740 the claimant bought one of two
adjoining houses and converted it into a coach factory, which involved increasing
the weight thrown onto a stack of brickwork within the building. Twenty-seven
years later, the stack collapsed, bringing the whole factory down with it, when the
adjoining owner demolished his house and excavated the land under it to a depth of
several feet. The claimant was held entitled to damages from the adjoining land
owner and his contractor.
It was common ground that ownership of land automatically carries with it a
‘natural’ right for the land itself (as opposed to any buildings on it) to be supplied
by adjoining land, so that any action on adjoining land that causes the land to
collapse will be wrongful. The rationale for this rule is that the physical stuff of
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land is interdependent, each piece of soil dependent for support on all adjoining
pieces of soil.
However, and this was also common ground, there is a further rule that a
landowner has a similar right of support for ‘ancient’ buildings on the land
(buildings more than 20 years). Thus, it was accepted that any action on adjoining
land that causes the collapse of an ‘ancient’ building is similarly wrongful. The
majority rationale was that the right of support for buildings which have been there
for twenty years is an easement arising by prescription, but that this and all other
prescriptive rights were founded on a presumed grant by the neighbouring owner
whose land provided the support. Thus, prescription is founded on a ‘revolting
fiction’ of a presumed but now lost grant (per Lush J. at first instance). There was
no evidence in the case that the claimants had sought any promises from the
Defendant when it carried out the works twenty years earlier, and none of the
judges expressed the slightest interest in finding out what had actually occurred at
that time.
Prescription does not enlarge the category of particular use rights which have
proprietary status. It can only legitimize use of land if the right to make use of the
land could have existed as a proprietary right if it had been expressly granted.
There are some use rights that can be granted but not acquired by prescription.
Negative particular use rights that can be acquired by prescription include a right
of support for buildings on one land from another land (Dalton v. Angus) and
rights to the passage of light and air through specific windows and defined
channels.
Negative rights that cannot be acquired by prescription include a right of prospect,
i.e., a right not to have a land owner’s view over the adjoining spoilt or interrupted
by anything done on the adjoining land, a right to receive light or air over
adjoining land other than through defined windows or defined channels (Hunter v
Canary Wharf), a right to receive television or radio signals over one’s land. All
these rights can however be expressly conferred on a landowner such as by a
restrictive covenant.
Blackburn L.J. in Dalton v. Angus gave compelling reasons why as a matter of
policy, such rights should not arise by long enjoyment, but no reasons at all as to
why it is justifiable, as a matter of evidence, to infer a prior valid authorization
from long user in the one case but not in the other. In distinguishing a right to light
through a specific window and a right to a view, he said: ‘...while on the balance of

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convenience and inconvenience, it was held expedient that the right to light, which
could only impose a burthen upon land is very near the house, should be protected
when it had been long enjoyed, on the same ground it was held expedient that the
right of prospect, which would impose a burthen on a very large and indefinite
area, should not be allowed to be created, except by actual agreement.’

Eminent domain
Eminent domain is the power of government to force transfers of property from
owners to itself. Its origins can be traced back to ancient Rome where property
could be taken for public projects, and the evidence suggests that owners received
compensation. English sovereigns enjoyed similar power but had no obligation to
pay compensation except in limited instances involving seizures of provisions for
the use of the royal household.
1 William Blackshire, Commentaries, 139 says: “So great... is the regard of the law
for private property, that it will not authorize the least violation of it; no, not even
for the general good of the whole community.” The rationales for the taking power
varied. Early civil law scholars like Grotius argued that sovereigns had original and
absolute ownership of property, prior to possessions by citizens, the idea of radical
title. From this perspective, individual possession derived from grants from the
state and was held subject to an implied reservation that the state might resume its
ownership.
Another rationale is that eminent domain is the natural consequence of royal
prerogatives that inhered in the concept of feudalism. The taking power is the
remnant of feudal tenure.
Finally, natural law theorists argued that eminent domain is an inherent attribute of
sovereignty necessary for the very existence of government. The public use
requirement of eminent domain has two basic opposing approaches. First, in the
broad view, the term means advantage or benefit to the public. In this view, the
public benefit test permits an act of condemnation so long as the objective it serves
is in the public interest, as an exercise of police power must be.
As a means rather than an end, the power of eminent domain is really necessary to
accomplish whatever aim the government intends. In the narrow view, it means
actual use or right to use of the condemned property by the public: Lawrence

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Berger, “The Public Use Request in Eminent Domain”, 57 Or. L. Rev. 203, 205,
209 (1978).

Recognition of new property interests

1. The function of property
The history of property bears witness to the constant expansion of the range of
property interests in response to society’s changing needs and increasing
complexity. However, the property concept is not extended and attached to certain
interests. The reasons are varied. The property concept performs three related
functions:
(a) as a means of allocating scarce resources
Property rights are a response to scarcity where it becomes important to demarcate
rules governing the use of finite resources, for otherwise there will be endless
disputes and conflicts in relation to how the particular resource should be
exploited.
(b)as an incentive to promote management
The institution of property enables rules to be established that prevent usurping and
so provide an economic incentive towards better husbandry of both existing and
new resources.
(c) as a moral philosophical or political statement
Property is one of the means by which moral, philosophical and political
perceptions are given tangible expression.
2. The danger of property
Property rights are dangerous because they have the power to bind third parties
who are not party to the legitimate processes by which interest holders acquire
their interest. Thus, a right holder’s interest will not be accorded the status of a
property right if the interest can be adequately protected without making the
interest binding on third parties (Hill v. Tupper).
3. The requirements of property

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Before an interest can be accorded property status, it must fulfil certain conditions.
If it lacks certainty, potential transferees will be reluctant to assume it. Moreover,
potential transferees of a different property interest in the same thing will be put off
acquiring that different thing because they will not know how the interest they are
acquiring will be affected by an uncertain interest. If an interest was difficult for
third parties to identify, potential transferees would have a disincentive in
acquiring anything which might have such an interest attached because there would
be no easy way of finding out.
This in part explains the law’s historical reluctance to welcome novel property
interests into the fold. If the system was too willing to do so, purchasers would be
more reluctant to acquire interests in things generally as they might later be
subjected to other conflicting interests that no one knew existed at the time of
acquisition but which the courts were subsequently willing to hold were subsisting
at that time. The pace of human development is such as to make the recognition of
new interests an economic and/or social necessity. As society changes the notion of
what is and what is not a useable resource capable of being the subject of property
also changes.

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John Locke’s Theory of Labour
Drawing on Locke’s Labour theory, explain what it means to say that private
property is a natural right.

 Natural rights are right which precedes the creation of the state and
laws; it is a right which exists in nature and is not dependent upon laws for
existence. Locke’s theory is a justificatory account about the legitimacy of
private property rights

 From the very beginning of the treaty (The Second Treatise of Government
1690), he places the right to possessions on the same level as the right to life,
health and liberty.

 Property originally comes about by the exertion of labour upon natural

resources. And thus, by virtue of labor expenditure, the laborer becomes
entitled to its produce, gathering apples from wild trees, tracking deer in the
forest, and catching fish in the ocean; labour ranges from simple acts of
appropriation to production involving planning and effort.

 John Locke, in arguing against supporters of absolute monarchy,

conceptualized property as a ‘natural right’ that God (Divine Providence) has
not bestowed exclusively on the monarchy. Influenced by the rise of
mercantilism, Locke argued that private property was antecedent to, and thus
independent of, government. He argues that God, or Divine Providence has
been equally generous to human beings.

 Locke distinguishes between ‘Common property’, by which he meant open-

access property; and property in consumer goods and producer-goods, the
latter of which referred to land. His chief argument for property in land was
improved land management and cultivation over common open-access land.

 According to Locke the right to property and the right to life were
inalienable rights, and that it was the duty of the State to secure these
rights for individuals. Locke argued that the safeguarding of natural rights,
such as the right to property, along with the separation of powers and other
check and balances, would help to curtail political abuses by the state.

 His attempt to ground the right to property in natural law was seen to be an
important device for asserting the rights of individuals against the state and
for limiting the moral authority of the state in a crucial area of human
endeavour.

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  Limits to possession of property: one’s right to property is only clear and
exclusive so long as it doesn’t jeopardize anyone else’s ability to create
equivalent kinds of property for himself.

 Mixing labour and acorns

Limits on Property in the State of Nature.

While Locke argues that men have a right to create and enjoy their property, he also
argues that there are limits to that right in the state of nature.

The first limit is alluded to when he describes how property is created. He says
‘Labour being the unquestionable property of the laborer, no man but he can have a
right to what that is once joined to, at least where there is enough and as good left in
common for others.’ The implication is that one’s right to property is only
clear and exclusive so long as it doesn’t jeopardize anyone else’s ability to
create equivalent kinds of property for himself.

Lockean theories of property rights have two parts. The first part grounds the
legitimacy of original appropriation and exclusion. The second part conditions
the legitimacy of original appropriation and exclusion.

Locke's answer, and the first part of his theory grounding the legitimacy of original
appropriation, is labor. He is proposing a unilateral account since it does not depend
on the imprimatur of a political authority or the consent or acknowledgment of a
community.

From the Lockean perspective, David Schmidtz argues that it appears logically
necessary that appropriating a resource from a common pool will leave fewer
resources for others, but that is false. In fact, in many cases, appropriating a
resource from the common pool will mean that the resource is preserved
rather than destroyed.

In other words, private property can prevent what Garrett Hardin calls a “tragedy
of the commons.” Specifically, Hardin argued that common pool resources, when
there is no way to prevent others from accessing and using them, have a tendency to
succumb to a tragedy of overuse (exploitation).

So Schmidtz argues that the control rights that are protected by the institution of
private property are justified – justified to everyone – because they prevent a
negative-sum game. We must appropriate resources from the common pool if we
want to leave those who will come after us with enough and as good.

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Schmidtz also argues that it is much easier to satisfy Locke’s proviso under a private
property regime. Privately owned resources tend to be allocated to their highest
valued uses and generate higher and higher levels of wealth.

Appropriation from the common pool leaves fewer things in it to appropriate, but
appropriation also makes more accessible more things that improve people’s lives.
For example, the first settlers in the New World appropriated vast pieces of unowned
land, leaving none for us to appropriate. They might be considered over-
appropriators relative to us, given our decidedly modest holdings in land. Even so,
we are certainly much, much better off than they were and we have no interest in
trading places with them.

Locke, therefore, argues that everyone has a legitimate entitlement ‘to so much out pf
another’s plenty, as will keep him from extreme want, where he has no means to
subsist otherwise.”

Do you agree with John Locke?

Since something that a person has earned by working becomes his, this constitutes
an emerging liberal individual with a sense of self-possession. Look at it from the
view that all external things are earned by labour and not just given by nature, the
theory seems to be fair.

He argued that property ownership derives from one’s labour, though those who do
not own property and only have their labour to sell should not be given the same
political power as those who owned property.

Criticisms

Locke's labour theory of property has been singled out for critique by modern
academics who doubt the idea that mixing something owned with something
unowned could imbue the object with ownership.

1) Jeremy Waldron believes that Locke has made a category mistake, as only
objects can be mixed with other objects and laboring is not an object, but an
activity.

2) Judith Jarvis Thomson points out that the act of laboring makes Locke's
argument either an appeal to desert, in which case the reward is
arbitrary-"Why not instead a medal and a handshake from the president?"-or
little different than first possession theories that existed before Locke.

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3) Ellen Meiksins Wood provides a number of critiques of Locke's labor
theory of property from a Marxist perspective.

a) Wood notes that Locke is not actually concerned with the act of labor or
improving the use value of property, but rather is focused on the creation of
exchange value as the basis of property.

b) “For one thing, it turns out that there is no direct correspondence between
labour and property, because one man can appropriate the labour of
another. He can acquire a right of property in something by 'mixing' with it
not his own labour but the labour of someone else whom he employs.

c) It appears that the issue for Locke has less to do with the activity of labour as
such than with its profitable use. In calculating the value of the acre in
America, for instance, he talks not about the Indian's expenditure of effort,
labour, but about the Indian's failure to realize a profit. The issue, in other
words, is not the labour of a human being but the productivity of property, its
exchange value and its application to commercial profit.”

d) In addition to the theoretical deficiencies of Locke's theory of property, Wood

also argues that Locke also provides a justification for the dispossession of
indigenous land and colonialism. The idea that making land productive serves
as the basis of property rights establishes the corollary that the failure to
improve land could mean forfeiting property rights.
e) Under Locke's theory, "even if land is occupied by indigenous peoples, and
even if they make use of the land themselves, their land is still open to
legitimate colonial expropriation."
f) Locke's notion that property "derives from the creation of value, from
'improvement' that enhances exchange value, implies not only that mere
occupancy is not enough to establish property rights, or even that hunting-
gathering cannot establish the right of property while agriculture can, but also
that insufficiently productive and profitable agriculture, by the standards of
English agrarian capitalism, effectively constitutes waste.”

g) This fits into a larger fundamental criticism of Locke's labor theory of property
which values a particular type of labor and land use (i.e. agriculture) over all
others. It thus does not recognize usage of land, for example, by hunter-
gatherer societies as granting rights to ownership.

h) In essence, the Lockean proviso depends on "the existence of a frontier,

beyond which lies boundless usable land. This in turn requires the erasure

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 (mentally and usually in brutal reality) of the people already living beyond the
frontier and drawing their sustenance from the land in question."
i) Locke's theories of property rights are often interpreted in the context of his
support for chattel slavery of "prisoners captured in war" as a philosophical
justification for the alleged enslavement and unsubstantiated genocides
committed by early American colonists.

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