introduction to general property concepts prof cameron stewart

Introduction to General Property Concepts

Prof Cameron Stewart

The Blind Men and the Elephant• John Godfrey Saxe • And so these men of Indostan

Disputed loud and long,Each in his own opinionExceeding stiff and strong,Though each was partly in the right,And all were in the wrong!

• So oft in theologic wars, The disputants, I ween, Rail on in utter ignorance Of what each other mean, And prate about an Elephant Not one of them has seen!

What is property?

What is Real Property?

• Corporeal hereditaments ‘such as affect the senses, and may be seen and handled by the body; incorporeal are not the subject of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation’- Blackstone

What is Real Property?

• Real Property – property recoverable under the real writs - realty, interests in land – land is three dimensional space located by reference to a point on the earth’s surface – fixtures – in the past only land was recoverable

• Real Property is also split into two categories – corporeal and incorporeal hereditaments (a right capable of being devised to an heir)

What is Personal Property?

What is property? Real & Personal

• Personal Property – catchall• (a) Chattels real – leasehold and other

interests in land that are less than freehold – distinction drawn because of an institutional definition of rights – only freeholds were enforceable by real actions for recovery

• (b) Chose in possession – a movable corporeal thing – eg goods

What is property?

(c) Chose in action – a movable incorporeal thing - rights which are enforceable by action – eg shares, patents copyrights, equitable securities, contractual rights, promissory notes, cheques, mere equities

Test:(i) Enforceability(ii) Incorporeal and intangible(iii) Bare right – not occupation and enjoyment

Common terms - Interest

• The conventional term for the bundle of rights which a person has in an object.

• Eg interests in land (covenants, easements, caveats, contract for sale) v ownership of land

Ownership

Knapp v Knapp [1944] SASR 257 at 261 per Mayo J:

"The general right of ownership embraces subsidiary rights such as exclusive enjoyment, to destroy, to alienate or to alter, and, of course, the right to maintain, and to resume and recover possession from other persons"

Ownership

Ownership indicates the relationship between a person and a corporeal or incorporeal legal object. It confers a bundle of rights to enjoy, use possess, dispose of and alienate a "thing" as well as the capacity to ward of any encroachment on the thing. Ownership can be limited by other rights but is not dependent on other rights.

• Ownership is therefore the subsidiary right that is left when all other interests in the property have been taken away (Campbells Hardware & Timber Pty Limited v CSD (Qld) (1996) 96 ATC 4348)

Title

• Title is the measure of the strength of an interest. It provides a yardstick to measure the strength of competing claims of interests in property

Possession

• No complete, logical and exhaustive definition of "possession" has ever been given for the common law – United States of America & Republic of France v Dollfus Mieg et Cie SA & Bank of England [1952] AC 582 at 605

• "Possession connotes a relationship between a person and some material object. It is a relation subsisting in fact. The ‘right’ of the possessor to the chattel arises out of the factual situation" – Button v Cooper [1947] SASR 286 at 292

Possession defined

• Two elements are necessary – (1) control (corpus possessonis) – some exercise of power over the goods or land

• (2) intention (animus possidendi) – an attitude in the mind of the actor denying the rights of other to have access to the land or goods

Possesory Title

• Possession confers a possessory title – possession is a root of title – possession is not only evidence of title but is a form of title itself – hence you have a claim against the whole world barring the true owner – title is relative

What are the characteristics of "property"?

• Possession• Physical control - corporeality - what about all

the incorporeal forms of rights which are also property?

• Exclusion• The right to stop others from enjoyment of

the thing• Backburn J in Milirrpum v Nabalco


• Enjoyment and use• Property rights are also use rights - but there may

also be rights to enjoy which are not "property" - rights to use public space - do you have a right to enter a national park - generally yes, but you do not "own" that right

• Some rights of enjoyment can be transferred into property - fishing and hunting rights can fructify into property (eg when the animals and fish are killed or captured they become property)


• Other enjoyments rights might have some proprietary characteristics - eg a business telephone number:

• Rahne v Telstra Corporation (unreported, Young J, 8 June 1995)


• Definable and Identifiable• You have to be able to recognise it for you to

enjoy the rights of protection and use• But property on the fringe is becoming vague -

colors (Eagle Boys pizza), sounds (Harley Davidson)

• The Colour Purple - Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 and subsequent litigation, eg Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited [2009] FCAFC 8


• Durable• Does property have to last? In general it

would be hard to say that something which disappeared or was destroyed after a short time could be owned or enjoyed as property - but durability is a poor indicator of property given the explosion in the number and types of choses in action - these have no physicality and hence don't exist in the real world at all


• Transferable/assignable;• Alienation - If a thing can be sold then it is

most likely to be considered as property• Is it merely personal to the right holder or can

the right holder trnafer the right to another? King v David Allen & Sons

• Gordon Laidler and Associates Pty Ltd v Hocking - Young J 6 march 1995 – fishing licence


• Dominion – right against the world (in rem)• Blackstone - what restrictions exist for

property owners today?


• Public interest – benefits v detriments of recognizing property rights

• There will be some property interests that will not be recognised because of the public interest

• Some historical examples:• The quasi proprietary nature of familial

services

Property theory

• John Locke• Bentham• Karl Marx• Hohfeld• Rawls• Nozick• CB MacPherson

Examples of things falling out of “property”

• Slavery - the common law was uncomfortable with the slave as property because of the traditions of habeus corpus - but it had no problem with recognising slavery in the colonies - Sommerset's case 1772 – 1807 manumission

Examples of things falling into “property”

• Native title?• Milirrpum• Mabo

Yanner v Eaton [1999] HCA 53; 201 CLR 351

• Yanner – member of the Gunnamulla clan of the Gangalidda tribe – crocodile meat

• The Fauna Conservation Act 1974 (Qld) provided, by s 54(1)(a), that: "A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act."

• Did this effectively take away all rights to hunt and vest ‘ownership’ of the fauna in Qld?

• Was the right to hunt a native title right protected by Commonwealth law?

Gleeson CJ, Gaudron, Kirby and Hayne JJ

17. The word "property" is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, "property" does not refer to a thing; it is a description of a legal relationship with a thing[26]. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of "property" may be elusive. Usually it is treated as a "bundle of rights"[27]. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said[28], that "the ultimate fact about property is that it does not really exist: it is mere illusion". Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by "property" in a subject matter[29]. So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of "property" as an analytical tool[30]. No doubt the examples could be multiplied.

Gleeson CJ, Gaudron, Kirby and Hayne JJ

The Fauna Act did not cobnfer a full, absolute beneficial ownership on the Crown. There were exceptions for fauna taken or kept in hunting seasons. The Act contained forfeiture provisions which would not be needed if the Crown owned the fauna. The Act also created a royalty system for the exploitation of fauna as a resource. All these factors indicated that what was vested in the Crown was an aggregate series of rights of executive control designed to underpin the licence system.

Therefore, the Crown’s interest in fauna did not extinguish native title.

Human tissue – falling into property?

• Modern example - human organs, tissue and corpses• Background• Burial rights, the definition of death and the invention and

perfection of transplantation• Blackstone wrote (15th ed, 1809, Book II, Ch. 28, pp 428-9) that: • "…though the heir has a property in the monuments and

escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. [But] if any one in taking up a dead body steals the shroud or other apparel, it will be felony; for the property thereof remains in the executor, or whoever was at the charge of the funeral."

• Resurrectionists, Burke and Hare – moral panic

Scenario 1

• Car accident• You are thrown from the vehicle• Your right arm is severed• You stem the bleeding• A man walks past picks up the arm and walks

off• Can you get the arm back?

Scenario 2

• You are dying of lung disease• You are a racist• Your other organs are fine and you wish to

donate your kidneys :– one to your daughter who has polycystic kidney

disease; and– the other to “any white child”

Scenario 3

• You and your partner had a young child of 12 weeks who died from a rare disorder

• After a postmortem examination the body is returned to you and you bury your child

• 5 years later you go to an exhibition of anatomy specimens and you see a child’s heart and lungs on display with your child’s disease. Later inquiries confirm that it is your child’s organs.

• What can you do?

Res nullius• Human tissue cannot be the subject of propertyProfessor Loane Skene (2002; 2007) is a leading advocate of why

property rights should not be recognised in human tissue. She states that following public policy issues justify the law’s failure to recognise property rights (2004: 166):– emotional (a repugnance at people selling their bodies and

body parts);– familial (stored genetic material should be available to blood

relatives for their own testing, not subject to veto by one person);– pragmatic (the possible consequences of such a principle for

hospitals and laboratories); – economic (undue fettering of teaching, research and

commercialisation of biological inventions); and – social (maintenance of museum collections and educational

institutions)

Res nullius and the labour theory• Doodeward v Spence (1908) 6 CLR 406• Dobson v North Tyneside Health Authority [1997]

1 WLR 596• R v Kelly [1999] QB 621• Moore v Regents of University of California 793 P

2d 479 (Cal 1990)• Greenberg v Miami Children’s Hospital 264 F

Supp 2d 1064 (2003)• Washington University v Catalona 437 F Supp 2d

985 (2006)

Organ Donation

Living donationPosthumous donationHuman Tissue Acts - consent or senior available

next of kinAdults and children?Conditional?Directed?

Organ retention scandals

• Alder Hey Hospital• AB v Leeds Teaching Hospital NHS Trust

[2004] EWHC 644• McStay v Minister for Health and

Children [2006] IEHC 238• Stevens v Yorkhill NHS Trust [2006]

ScotCS CSOH 143

• organ retention scandals in Australia – Gelebe Morgue, SA Bone scandal

• wrongs regarding the corpse - UNSW

Posthumous property problems

Sperm bandits

Boris Becker and wrongful use of sperm? Conversion? Breach of Confidence?

Reproductive material and control

• Stolen sperm? • BM v DA (2007) 39 Fam LR 168. The couple had been in a relationship that

had broken down. After their breakup the woman told the man that she was pregnant and that she needed both a blood and semen sample for testing the baby for genetic abnormalities. A child was later born prematurely but at a much later date than would have been possible if she had been pregnant during the relevant time. The man alleged that the woman was not pregnant and had deceived him into providing sperm with which she later impregnated herself. It was later confirmed that the man was the genetic father of the child. The woman sought child maintenance orders from the man but the man argued that, as the child had been artificially inseminated, he was not the legal father. Henderson FM found for the man. As the parties were not married or in a de facto relationship no presumption arose that the man was the parent. Given the child was conceived through artificial insemination, the relevant state law applied, to the effect that, as a sperm donor, he was not the legal father of the child.

Disputes over embryoes

• Evans v Amicus Healthcare Ltd [2004] 3 All ER 1025

• Caufield v Wong 2005 ABQB 290• Family Law Act 1975?

Conditional Donation of Sperm

• Assisted Reproductive Technology Act 2007 (NSW) s17• (1) A gamete provider may give an ART provider that

obtains, or proposes to obtain, a gamete from the gamete provider a written notice setting out the gamete provider’s wishes in relation to the gamete (the gamete provider’s consent).

• (2) A gamete provider’s consent may address such matters as the uses that may be made of the gamete (or an embryo created using the gamete) and whether the gamete or embryo may be stored, exported from this State or supplied to another ART provider.

Racist gifts and public policyKay v SESAHS• I give the Children’s hospital at Randwick $10,000 for the

treatment of White babies• Racial Discrimination Act s 8(2)

This Part does not apply to: (a) any provision of a deed, will or other instrument,

whether made before or after the commencement of this Part, that confers charitable benefits, or enables charitable benefits to be conferred, on persons of a particular race, colour or national or ethnic origin; or

(b) any act done in order to comply with such a provision

Breakthrough?

• Jonathan Yearworth & Ors v North Bristol NHS Trust [2009] EWCA Civ 37 (04 February 2009)

• Negligent storage – bailment?

Breakthrough?• We conclude: • (a) In this jurisdiction developments in medical science now require a re-

analysis of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action in negligence) or otherwise.

• (b) The present claims relate to products of a living human body intended for use by the persons whose bodies have generated them. In these appeals we are not invited to consider whether there is any significant difference between such claims and those in which the products are intended for use by other persons, for example donated products in respect of which claims might be brought by the donors or even perhaps by any donees permissibly specified by the donors.

Breakthrough?(c) For us the easiest course would be to uphold the claims of the men to have had ownership of the sperm for present purposes by reference to the principle first identified in Doodeward. We would have no difficulty in concluding that the unit's storage of the sperm in liquid nitrogen at minus 196°C was an application to the sperm of work and skill which conferred on it a substantially different attribute, namely the arrest of its swift perishability. We would regard Kelly as entirely consistent with such an analysis and Dobson as a claim which failed for a different reason, namely that the pathologist never undertook to the claimants, and was not otherwise obliged, to continue to preserve the brain.

Breakthrough?(d) However, as foreshadowed by Rose LJ in Kelly, we are not content to see the common law in this area founded upon the principle in Doodeward, which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical. Why, for example, should the surgeon presented with a part of the body, for example, a finger which has been amputated in a factory accident, with a view to re-attaching it to the injured hand, but who carelessly damages it before starting the necessary medical procedures, be able to escape liability on the footing that the body part had not been subject to the exercise of work or skill which had changed its attributes?

Edwards; re the estate of the late Mark Edwards [2011] NSWSC 478

Back to the scenarios

• With property rights you can get the arm back, without them you can’t

• With property rights the directed donation is legal as is the racist condition, without property rights the kidneys cannot be taken

• With property rights you can sue for the return of the preserved organs and the emotional damages, without them you have no claim

introduction to general property concepts prof cameron stewart

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