business law 700 words
Property Law and Business Property Law and Business MP123 2021 Lecture 7 1 1 Concept of Property What is property? A common response is to list examples: Things (goods) Land Copyright (the product of artistic or skilled endeavour) Shares Contractual rights (e.g. debts) © Dominic Cudmore 2020 2 Concept of Property What is property? A common response is to list examples: Software Air Water Minerals Indigenous rights (to hunt,, hold ceremonies, reside etc.) © Dominic Cudmore 2020 3 Concept of Property What is property? Legal rights that enable people to make use of ‘things’ Not everything can be subject to property rights Most tangible ‘things’ can be subject to property rights © Dominic Cudmore 2020 4 Concept of Property Most tangible ‘things’ can be subject to property rights e.g. car © Dominic Cudmore 2020 5 Concept of Property Most tangible ‘things’ can be subject to property rights e.g. dog © Dominic Cudmore 2020 6 Concept of Property Most tangible ‘things’ can be subject to property rights e.g. clothes © Dominic Cudmore 2020 7 Concept of Property Most tangible ‘things’ can be subject to property rights e.g. home (of some sort) © Dominic Cudmore 2020 8 Concept of Property Most tangible ‘things’ can be subject to property rights e.g. money © Dominic Cudmore 2020 9 Concept of Property Most tangible ‘things’ can be subject to property rights e.g. food © Dominic Cudmore 2020 10 Concept of Property Many (but not all) intangible things can also be subject to property rights e.g. song © Dominic Cudmore 2020 11 Concept of Property Many (but not all) intangible things can also be subject to property rights e.g. invention © Dominic Cudmore 2020 12 Concept of Property Many (but not all) intangible things can also be subject to property rights e.g. company shares © Dominic Cudmore 2020 13 Real Property and Personal Property Property can be: Real property Personal property What is the difference? © Dominic Cudmore 2020 14 Real Property and Personal Property There are a variety of property rights However, they all have 2 essential characteristics: They always relate to and depend upon the existence of a thing They are enforceable against a wide range of people, not just specific people © Dominic Cudmore 2020 15 Look at examples in Chambers p 8 15 Real Property and Personal Property Essential characteristic No 1 – existence of a thing Property rights must relate to things that are separate and apart from ourselves Property rights do not cover: My body My reputation unless the ‘intrinsic connection’ to me has been broken © Dominic Cudmore 2020 16 If A lends B $20, A has the right to be paid $20 by B, and B has the corresponding responsibility to pay $20 to A. 16 Real Property and Personal Property Essential characteristic No 2 – enforceability All legal rights (in rem or in personam) have corresponding responsibilities Like other legal rights, property rights are enforced against persons Unlike other legal rights, no specific person is responsible for the fulfilment of property rights © Dominic Cudmore 2020 17 If A lends B $20, A has the right to be paid $20 by B, and B has the corresponding responsibility to pay $20 to A. 17 Real Property and Personal Property 3 other characteristics shared by most (but not all) property rights Alienability Excludability Value © Dominic Cudmore 2020 18 A non-assignable residential lease is not transferrable but it is still a property right. 18 Real Property and Personal Property Alienability Shared by most, but not all, property rights Only an essential component if we accept the wide definition of property rights, but not if we accept the narrow one All property rights are ‘disposable’ but are not necessarily ‘transferable’ © Dominic Cudmore 2020 19 A non-assignable residential lease is not transferrable but it is still a property right. 19 Real Property and Personal Property 2. Excludability Shared by most, but not all, property rights It means that the holder of the property right is able to exclude others from making use of the thing that is the subject of the property right © Dominic Cudmore 2020 20 But this does not apply to a right of way to cross a neighbour’s land – but the right of way is still a property right. 20 Real Property and Personal Property 3. Value Shared by most, but not all, property rights However, some things are valueless but there may still be property rights in them Some rights in personam also have value © Dominic Cudmore 2020 21 Real Property and Personal Property The legal insight is that property is not so much about things, but rather about the relationship of people to things A concept frequently espoused by lawyers is of property as a bundle of rights – or think of a bundle of sticks © Dominic Cudmore 2020 22 Real Property and Personal Property This bundle of rights constituting property rights includes: Right to exclude others from the property Right to alienate the property to others Right to use and enjoy the property (profit from it) Right to possess the property Responsibility to maintain, use and (depending on the legal system) share the property or its fruits with others © Dominic Cudmore 2020 23 Property v Other Rights Property is a different kind of right to those protected by the law of torts or the law of contract In negligence, the relationship protected is that of “neighbourhood” – the legal duty of care owed to other people as human beings In the law of contract, the relationship protected is that created by agreement of the parties themselves – it is quintessentially “private” because it only affects legal rights created by the parties themselves © Dominic Cudmore 2020 24 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Facts Cowell bought a ticket to the races at Rosehill Racecourse in western Sydney (near Parramatta) © Dominic Cudmore 2020 25 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Facts Cowell became a nuisance (the demon drink was involved) and was asked to leave the course Cowell refused and was then forcibly removed, using no more force than was necessary to do so Cowell sued the Rosehill Racecourse for damages for assault © Dominic Cudmore 2020 26 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Issue If Cowell had a right to be at the racecourse (e.g. an “irrevocable licence” as he claimed), then his removal would have been unlawful and would have constituted an assault If the licence had been validly terminated by the racecourse, then there was no assault as the force was no more than was necessary and therefore lawful © Dominic Cudmore 2020 27 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Held Cowell had a mere contractual right (licence) to enter the racecourse The mere contractual right (licence) was not irrevocable and could be withdrawn at any time The mere contractual right (licence) was not a proprietary right, because it was created by a contract and conferred no proprietary right © Dominic Cudmore 2020 28 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Held The important point to note here is that permission from the owner of a property to enter land for a particular creates no property right, unless it is coupled with something essentially proprietary in nature, such as: a lease (exclusive possession) © Dominic Cudmore 2020 29 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Held or an easement (a right to use the grantor’s land for a purpose benefitting land owned by the grantee) © Dominic Cudmore 2020 30 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Held The right to enter premises to view a spectacle is not such a proprietary right and therefore can be revoked even if granted by contract © Dominic Cudmore 2020 31 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Comment The distinction between contract and property is clear - Cowell was at most entitled to damages for breach of contract (probably limited to the price of his entry ticket) © Dominic Cudmore 2020 32 Property v Other Rights Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Comment If Cowell had a property interest, he would have been entitled to an injunction and damages for trespass to his person and possibly substantial consequential damages (perhaps he could sue for the winnings on the horse he was going to back in the next race?) © Dominic Cudmore 2020 33 Some Things Cannot be Property Certain things cannot be owned privately - res communes – access to air, running water, beaches, the sea The common law has traditionally regarded these as inviolable rights of the public to certain natural resources that make them incapable of privatisation The policy of the common law reflects that some resources may not be “propertised” because to do so would be contrary to fundamental moral assumptions and human freedoms (e.g. human body parts, slavery) © Dominic Cudmore 2020 34 34 Some Things Cannot be Property There are many policy debates about this A right to privacy, a right to human tissue reproduced via research to develop medical diagnostic tests or other products The idea of res communes derives from Roman law and the idea of common heritage Thus, for example, the resources of the high seas or outer space cannot be appropriated and the use of them belongs equally to all people Do you agree? © Dominic Cudmore 2020 35 35 Some Things Cannot be Property Can there be no property in a spectacle or a view? Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 Facts This case arose from the way in which races were broadcast from racecourses in the 1930s in Australia Racing clubs tightly controlled access to racecourses There was little media reporting – it was mainly in the form of newspaper summaries after the race © Dominic Cudmore 2020 36 Some Things Cannot be Property Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 Facts Victoria Park was a racecourse in Zetland - it was bordered by O’Dea Avenue, South Dowling Street, Epsom Road and Joynton Avenue It was privately owned and developed by Sir James John Joynton Smith (1858–1943), a hotelier, racecourse and newspaper owner In 1947 the racecourse was bought by businessman Lord Nuffield and it was used for a motor vehicle assembly © Dominic Cudmore 2020 37 Some Things Cannot be Property Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 © Dominic Cudmore 2020 38 Some Things Cannot be Property An aerial photo showing the Victoria Park Raceway in 1943 which was developed after the area — known as Waterloo Swamp — was drained of water © Dominic Cudmore 2020 39 Some Things Cannot be Property Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 Facts Taylor owned a house beside Victoria Park Racecourse Taylor