Introduction: Where does Prop Law (PL) fit into a general legal framework
Private law and how prop relates to it
– Property related to private law contracts wrt leases, bailment, etc.
– Prop related tort wrt to trespassing to chattel, etc. Many new claims to property rights are started in tort. (e.g. also misappropriation of personality)
Public law and how prop relates to it
– Constitution: no formal protection of prop rights in the charter. But there is protection against taking of prop by the state
– Protection of socio economic status by the gov’t – these the equality dimensions of prop
– Criminal law: a vast majority of crime in Canada is property related. E.g. theft. Raises Qs of social engineering, etc.
– Administrative law: mechanism how rights to benefits (like social assistance) are protected by the system
– Public international: disputes between states (at the macro level) over rights to property/land
Disciplines other than law
– Anthropology and PL
o How cultures and societies operate. Landholdings are central to an understanding of a culture. Cml PL is just one way of looking at the organization of property law – the English understanding of it. Ways of holding title in other places are very different – e.g. Cuba, Civil law property.
– History
o PL relies on certainty (stare decisis). Very important to property law b/c the stakes are very high. Need to know have certainty in the ownership of homes and things.
o History orders expectations for the future. Relying on history though can be risky though.
o What role does social convention have in regulating prop rights today? TP is very interested in this
o History is what makes PL a convoluted subject
– Economics
o Used to argue for certainty and economically stable outcomes.
Family resemblance v. purposive approach
Two fundamental views that influence decision making:
– Individual right or entitlement that must be defended… or… broad social and economic policy route
– Individual right or entitlement: args. From history, certainty, judicial parcimony (deciding only the narrowest issue necessary)
o Family resemblance approach: look to see whether there is a family resemblance to another property right. Reinforces status quo
– Broad social: distributive justice and the importance of equity.
o Functional and purposive approach. Very ends based. What is society trying to achieve and how can we structure prop rights around that view
Summary:
– Importance of history to the study of property law. Mainly b/c property law relies on settled expectations. Writing is most important but oral is also important.
– Importance of language of economics to an understanding and to justifying property allocation.
– There is no one defn’t of property
Chapter One: Property as rights not things
Rights over how things are used but not the things themselves
Take statement: “I own my house”
– Bank holds mortgage on 95% of the house
– Land on which house is built reverts to crown – and the crown can expropriate that land
– What does the homeowner own?
o Using, enjoying, improving, selling – need not ask the bank for permission to do any of these things
o These rights are recorded and formalized in the property rights system
o Even though the homeowner does not own all the rights, combinations of some of those rights are enough to make a person the owner
– This course looks at what combination of rights make someone the owner
Other examples:
– Sometimes the form of something is not worth anything but the rights that go with it are – e.g. a share certificate
– The Bushel example:
o E.g. a bushel of sticks in a bundle – as a bundle of rights. In the house example: each stick would represent a right. These include: the right to rent, to sell, to rent, to destroy. Can take sticks in and out of the bundle. Taking one of the sticks out does not destroy the bundle. So can give one stick to someone without losing the other sticks. We ask: when have you taken out so many sticks out that the whole bundle doesn’t exist any more?
Historically:
– Services to the feudal lord (e.g. being a knight) entitled someone to a share of land he could farm.
– McPherson – Today’s view
o Argues that over time, other things have become property. Services and benefits are provided. E.g. a pension. Don’t actually have anything that could be held, but it is still a right. E.g. a right to social assistance.
o Expectation of a benefit has become more important than things
Architecture – division between real (corporeal and incorporeal) and personal (in possession and in action)
Real property is land
– Subdivided into corporeal (land, estates) and incorporeal (bodiless, easements and covenants)
Personal property is everything else (not land)
– Choses in possession – things you can hold
– Choses in action – things you can’t hold like debts
Chattels (leases) have been left out – they are a unique interest. Type of property reflecting the unique nature of the lease: a right over land held personally
Sui generis interests – e.g. aboriginal interests to land (recent decision by SCC called this a third system of law)
Types of property – Private and Common
Private and common property distinction
– Undue attention has been focused on private
Common property – each member has an enforceable claim and no one person can be excluded (e.g. streets, air, ocean). This is where the term “tragedy of the commons” comes from.
State property – private property held by the state
– We will talk mostly about private property but do not forget that it also can apply to common property
Merrill “Property and the Right to Exclude”:
MAIN ARGUMENT: The right to exclude others is more than just ‘one of
s that would descend on malls if people could distribute pamphlets freely
– Avoids dealing with x. v. Right to picket. How? b/c he says the role of the courts is not to innovate. Mall owner was justified in stopping the picketer. Value picketing but shouldn’t enter the judge’s mind. Court should be applying fundamental principles – not making law. Bill of rights had a protection of property rights. The right to property was pre-eminent . right to picket is a right you are granted and not something you simply have.
Laskin (Dissent):
– Peters Decision: says this case was a different set of facts it was a boycott – not a labour dispute
o Peter’s decided a narrow decision. Not whether a shopping mall had the right to disrupt a lawful picketer
o Says to the majority: “I sat on Peter’s and it is not how the majority interpreted it”.
– Need to reconsider the issue – cannot apply trespass to new situations.
o Need to take a purposive approach and think about the social and economic impact of decisions
– Historical argument: In history, trespass only applicable to private property between two people. It protects rights to privacy – the injury is to one’s sense of privacy. Does a mall owner have a right to privacy like a person has when his house is trespassed upon? What right is being protected here? It is not the mall owner’s right to privacy. There is no threat to the title of the mall owner. Trespassing may not be the right cause of action here.
– Can eject people for engaging in illegal behaviour (e.g. damaging mall property). But extending this to granting mall owner the right to exclude anyone could lead to abuse. (personal element here for Laskin – as a jewish lawyer, he was excluded from certain law firms)
– Laskin would argue the role of the courts is to apply justice whereas here, Dickson would say the role of the court is to apply precedent.
– Sets out test: unlawful activity can be
See property as rights not things here.
– Different sticks being granted: Dickson would grant the right to exclude anyone from property. Laskin takes a broader view and limits this right to exclude to certain people.
