The Extent to Which the Bundle of Rights Is an Accurate Description of Ownership of Land in England and Wales - Term Paper Example

THE EXTENT TO WHICH THE TERM “BUNDLE OF RIGHTS” IS AN ACCURATE OF OWNERSHIP OF LAND IN ENGLAND AND WALES Introduction Property can be defined as the legal relationship with a thing, the power that can be exercised over the thing, and is not the thing itself. Property rights are those which govern the use and ownership of a resource. The term is most commonly associated with the use and ownership of land. Property rights legally involve a combination of rights, obligations and duties. This is sometimes known as a “bundle of rights” which include “the right to possess, the right to manage, the right to receive income from, the right to be secure from interference from others, and the right to transfer to a chosen successor”. Duties include the duty to prevent from harm and the liability of having the property expropriated by the government or to pay debts1. Thesis statement: The purpose of this paper is to determine the extent to which the term “bundle of rights” is an accurate description of ownership of land in England and Wales. Discussion The constuction of a coherent, legal regime for land has evolved over a millennium, resulting in the distinctive corpus of legislation found mainly in the property statutes of 1925, now supplemented by the Land Registration Act, 2002 and the Commonhold and Leasehold Reform Act, 2002. The definition of land in England and Wales involves a consideration of the nature and scope of the territory. The legal concept of land includes several surprising components with some features which remain pragmatic or uncertain in their function2. Property is a socially constructed concept; and former perceptions of property as a monopolistic right of control and exploitation have long since been eroded by wider conceptions of the public good. The purchase of a “bundle of rights” in land “necessarily includes the acquisition of a bundle of limitations”3. Some of the limitations include impermissible arrogations of proprietory power in the resource of land, as stated in the European Convention on Human Rights, public interest controls on property in land, which is curtailed both by human rights considerations and by the impact of an extensive range of planning and environmental controls which regulate the development of the urban and rural landscape. Land Ownership as a “Bundle of Rights” in England and Wales Land is commonly characterized as a bundle of rights, rather than more simply as a producer or consumer good. There are a number of such rights that pertain to land, in the context of a Neo-classical economic interpretation of property rights. These are the right to use land, the right to transfer or transact land, the right of enforcement of legal arrangements over the land and the right to exclude people from the land. These rights are part of owning the land. A collective right is held not by the occupier but by the public at large, in respect of a range of interests in the land. Development rights also in England and Wales, as in New Zealand, are held mainly not by the occupier nor by the public, but by the state, through the medium of the local planning authority. In relation to land as environmental and cultural capital, conceptualizations of rights have been more fully grounded in social processes, often being characterized as rights of citizenship4. Access rights for outdoor recreation in England and Wales include: The statutory collective rights in perpetuity for: the rights of way system, open country, common land, state land purchase for recreation, and rights for navigation. The voluntary collective rights in perpetuity for: dedications under CroW Act, 2000, planning agreements and public path orders. The state economic collective rights for a fixed time period for leases to the state, agri-environment agreements, and other written agreements. Citzenship rights in perpetuity for: millennium greens, town and village greens, and community forests. State economic exclusionary rights for a fixed time period for licenses and permits from the state, user charges to state facilities. Private market exclusionary rights for a fixed time period for: market provision, de facto access with voluntary payments, and access through weekly or annual memberships. Access rights also include privileges for de facto access with the permission of the landholder, and access by tradition5. The property absolutism of a bygone era has been to a great extent replaced by a property relativism, which believes that the estate owner’s “bundle of rights” contains no entitlement to ruthlessly exploit land resources regardless of the communal good. Central to contemporary environmental law is the proposition that the estate owner’s “bundle of rights” is intrinsically demilited by social or community-oriented obligations of a positive nature (2.4 of the Town & Country Planning Act, 1990, Part III). According to this line of argument, the owner’s “bundle of rights” is inherently restricted by communitarian concerns for environmental integrity6 The relativist view of property is consistent with the major theme of modern property theory. Land property correlates with varying degrees of socially approved power exercisable over the resource of realty. Distinctly measurable areas of property in the same land can be distributed simultaneously among a number of persons and entitities, including the state. The amount of property that individuals can assert either in relation to their own land or in relation to somebody else’s is determined by a range of factors, some of which emerge from the law of torts, particularly the law of nuisance and negligence, and some from within land law itself. The law of easements can effect a marginal shift in the property implicit in a landholding, for example where one estate owner grants a right of way, drainage or support to his neighbour. Thus, modern environmental regulation involves the voluntary re-allocation of various “sticks” within the property “bundle”, or even the profound recognition that the state has always held a retained stick in the bundle of rights7. In contrast, many scholars insist that property rights are neither static nor absolute. The recognition of private property interests involves compromising community values and egalitarian goals; hence, it is necessary that the exact composition of the bundle of sticks must be recognized as a mediation between these interests. Further, the balance struck is always tentative, subject to constant re-evaluation in view of current perspectives and norms. The relative stability of property rights over time is not only fair to those who strive to obtain them, but is also necessary for society to function. However, some development in the conception of the proper scope of property rights is both inevitable and desirable. Based on how the buyer wishes to own property, the purchase of property can take different forms. However, there may be circumstances in which it is not even possible to own the property at all. Theoretically, all land belongs to the Crown. This concept dates back to 1066, and is theoretically true even today. What people own is an estate in land which is a “bundle of rights” to that land. The two different estates in land are mentioned in the Law of Property Act 1925 (LPA). Section 1(1) Subsection (a) mentions “an estate in fee simple absolute in possession”; this is a freehold. Subsection (b) mentions “a term of years absolute”; and this is a leasehold8. In England and Wales, freehold title is the closest that people come to owning land. This is where the owner has all the rights and obligations traditionally associated with owning a piece of land. Leasehold title is considered to be a more inferior estate in land. Unlike freehold which has no time limitations, leasehold is for a term of years absolute: the estate lasts only for a certain period of time. The length of time a leasehold title will last is determined by the document creating the leasehold interest. “A leasehold title must last for a definite period and not for any period which is contingent upon uncertain events, such as an interest for the duration of a war”9 Estates in land being “bundle of rights” in relation with that land, there will also be cases when people will want bundle of rights which are not freehold or leasehold estates. In this respect, easements and covenants are estates in land with rights which allow people to do something, or restrict people from doing something over a piece of land10. The new “right to roam” established by CroW can be fully understood only in the context of Britain’s complex history of public access rights. Also, British culture values public access to and the full enjoyment of the amenities offered by the countryside. Before the enclosure period, British commoners enjoyed a variety of rights to use common land, which were terminated when the land was converted to private land. Both access to footpaths and roaming rights are considered important public access rights. Although several footpath easements criss-cross private lands, and were preserved for public use by enclosure orders, the general right to roam freely over the mountains and moors was not. The public campaigned to restore those roaming rights, first through the courts with limited success, and ultimately through Parliament11. Under the Countryside and Rights of Way (CroW) 2000 Act, about 12% of land in England and Wales covering millions of acres in England alone, qualify for access to registered “common land” and land classified as open country, consisting of mountain, moorland, heath and downland, constituting scenic real estate and vast land holdings. However, not all land is eligible for public access. The CroW 2000 exempts land that is ploughed or used as a park or garden; and land within twenty metres of livestock buildings, land covered by buildings, quarries, golf courses and race courses. However, the declaration of public access rights does not include any right to compensation, except where vehicular access over common lands has been provided12. Anderson13 in her article on comparative perspectives on property rights, refers to the evolutionary nature of property rights, where the exact composition of the bundle of sticks has to represent a societal balance of interests, and should be subject to constant re-evaluation and revision according to the current needs and norms. On the other hand, in order to encourage investment and to enable society to function, there are benefits to maintaining the relative stability of property rights over time. Legislative Changes to Open Access Rights Countryside Commission initiatives such as Countryside Commission 1989, 1992 and 1993, the introduction of the Rights of Way Act in 1990 as specific legislation to protect public rights of way, and a noticeable rise in litigation in which the main issue has been public access to land, are the sources giving rise to growing social and legal importance of public access to land. If Part V of the 1949 Act is to play any part in addressing the contemporary social and legal concern over public access to land, it needs to accord a greater degree of legal protection, emphasis and support to the entitlement of the public to have access to open country; if necessary this would be at the expense of the traditional, exclusive private property rights currently enjoyed by the land owner. Property analysed as a “bundle of rights” over a resource such as land, and the argument that ownership is made up of a number of “essential incidents” are well-known concepts. Hence, both property such as land and ownership can be seen as relational14. The landowner is identified as the person with the strongest link with the particular piece of land in question, his rights over it minus his liabilities within the complex web of legal relationships existing between persons who are concerned with the land in question in some way. Alternatively, the land owner can be described as the person with the heaviest package of incidents in relation to land and first incident of possession, and thereby exclusion15. By strengthening Part V of the 1949 Act, and with the entitlement of the public to have access to open country would result in shifting some of the legal emphasis currently attached to the private, exclusive interests of the owners and occupiers of such land, in favour of attaching greater importance to the inclusive entitlements of members of the public to have access to it, and not be excluded from it. Such an approach may, in turn, start the process of reconceptualizing the nature of property and the respective weight accorded to the rights in the bundle making it up. This would result in individual property systems indicating a greater balance between private and public rights16. The conception of private property in England and Wales is vastly transformed with changes brought about in the legislation. In a small way they could affect the respective legal emphasis attached to various rights making up the property “bundle”, by shifting the emphasis away from private, exclusive rights traditionally enjoyed by owners, occupiers and “interest holders” over land, in favour of attaching greater importance to access rights of a wider, public, inclusive nature17. The 1949 Act is further strengthened by the changes introduced by Part V of the Criminal Justice and Public Order Act 1994, particularly ss70 and 71. These sections are of wider significance than the Criminal Justice and Public Order Act 1994, s68 which targeted saboteurs. Unlike aggravated trespass, there is no requirement of having an intention to intimidate persons engaging in lawful activity on land or to obstruct or disrupt that activity. Ss70 and 71 of the 1994 Act add new ss14A, 14B and 14C to the Public Order Act 1986 and confer on local authorities a wide power to make orders prohibiting what are referred to as trespassory assemblies and criminalising certain conduct associated with such assemblies18. Conclusion This paper has highlighted the concept of “bundle of rights”, and determined the extent to which it is an accurate description of ownership of land in England and Wales. It is seen that ownership rights are greatly determined by the sticks in the bundle of rights which include the right to use land, the right to transfer or transact land, the right of enforcement of legal arrangements over the land and the right to exclude people from the land. However, the public’s right to access to private property with scenic beauty for leisure purposes or for utilizing footpaths has been significantly emphasized, and implemented through changes in legislation. Policy changes affect the legal emphasis on various rights constituting the “bundle of rights”. Limitations imposed by environmental regulation involves not the direct acquisition of property by the state, but rather the imposition of substantial restrictions upon the free enjoyment of estate ownership. Since an estate owner does not actually have the right to exploit his land in an environmentally harmful fashion, regulatory control only renders more explicit those limitations on user which were already part of his title. Thus analysed, state regulation does not deprive the land owner of any of the sticks in his bundle of rights, and has therefore not caused him any net loss. The community is already entitled to a public-interest forbearance on his part19. References Anderson, J.L. (2007). Britain’s right to roam: Redefining the landowner’s bundle of sticks. Georgetown International Environmental Law Review, 19: 375-435. Anderson, J.L. (2006). Comparative perspectives on property rights: the right to exclude. Journal of Legal Education, 56 (3): 1-12. Barry, F.R. & Parry, N.D.M. (1996). Open access, rights and legislation. Web Journal of Current Legal Issues. Retrieved on 15th January, 2009 from: http://webjcli.ncl.ac.uk/1996/issue2/parry2.html Curry, N. (2002). Access rights for outdoor recreation in New Zealand: some lessons for open country in England and Wales. Journal of Environmental Management, 64: 423-435. Gray, K. & Gray, S.F. (2007). Land law. The United Kingdom: Oxford University Press. Honore, A.M. (1987). Making law bind. Oxford: Oxford University Press. Studentatlaw. (2008). Introduction to land law – estates in land Part 1. Studentatlaw.co.uk. Retrieved on 14th January, 2009 from: www.studentatlaw.co.uk Toner, J. (2006). Property rights: an analysis of their implications for understanding land rights in Australia. Extension Farming Systems Journal, 1 (1): 79-85. Read More