Kennaway and Thompson - Essay Example

Traditional theories of private property ownership involve the recognition of absolute possession to the exclusion of all others. However, other theories of private property ownership recognize that there are limits to the exclusivity of private property ownership. Both the exclusivity and limits to that exclusivity are captured by Protocol 1 and Article 8 of the European Convention on Human Rights 1950 which is now a part of law in England and Wales pursuant to the Human Rights Act 1998. The limits to exclusivity in private property ownership are necessitated by a number of competing rights: the public interest in encouraging productive activities, the rights of others and the right to the reasonable use and enjoyment of one’s property.

Thus from an economic perspective private property ownership necessarily involves trade-offs and a balancing of rights. The tort of nuisance is demonstrative of the economic approach to balancing the competing interest in private property ownership. Much of the law relative to the limits of exclusivity in private property ownership under the tort of nuisance was established under the common law and typically refers to a number of activities. The rule in Rylands v Fletcher in was established to deal with a single act of nuisance giving rise to interference in the use and enjoyment of one’s land.

The rule of law in Rylands establishes liability where activities conducted by one owner/occupier causes damages to the use or enjoyment of property owned or occupied by another. 7 The rule in Rylands and the rule applicable to nuisance generally have since been expanded to limit liability to the extent