Property Law, Commentaries on the Laws of England - Assignment Example

Name Tutor Task Date Introduction “There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercise over the external things of the world, in total exclusion of the right of any other individual in the universe.” (Blackstone Commentaries on the Law of England) (CB 37). These are words as brought out by William Blackstone in trying to create an understanding of property rights and its significance on the lives of people. This paper looks the various features as brought out by the Blackstone commentaries. It then analyses the property law of Australia and identifies if the law contains the various features as those cast in the commentary. The paper also seeks to identify any other important features that would be useful in identifying new forms of property. Property Law Property can be defined as the enforceable claim to a specific benefits related to something. This could be individually or as a partnership or corporate. It is an association between powers, rights, obligations and disabilities and which guides the existing relationship between two or more persons in relation to the process of accessing and controlling valued resources which may be tangible or intangible. Property differs from possession though a possession can be regarded as property. In the case of a house for example, having a legally attained title to the house gives one the right to utilize it in any way chosen and at the same time forbids any one else from controlling it. With every right to own property comes a limitation that hinders the other person from using that property. Property law can in this case be defined as that which governs or guides the different ways through which real and private property is owned. In the case at the US Supreme Court, between Scranton v. Wheeler, the judge regarded the word property as that which refers to every item that is subject to ownership.. There are three main types of property that includes common, private and state or public property (Waterman, 64)1. Common property refers to the rights a made by as country or state. This accorded right allows every one to use the property and is not in exclusion of any individual. The property is in this case not owned by any specific individual but is created to benefits every one. This means that no individual is allowed to personalize the property at any given time like for example, build a house on a common land. There are two main forms of common –property; full and open public access such as roads, parts and air and those that are held by a particular group of individuals like for example swimming pools and gyms in condominiums (Marshall, 125-32)2. Another type of property is private property whereby individuals are granted rights by the state to own personal property and to prevent others from benefiting from the property or utilizing it. Other than individuals, private property can be owned by corporations as well. State or public property refers to that which no individual rights are accorded. The property is in this case owned by the state. Real property refers to the property that is immovable such as land and real estates while personal property refers to movable property. The ownership of these kinds of property is inclusive of all the related obligations and rights. This therefore means that by gaining ownership to a particular property one has the obligation and right to use it in any he or she prefers or finds favorable. Having ownership to property should therefore be taken to refer to what right that ownership provides or what the individual owning it is allowed to do (Fruehwald, 22)3. Commentaries on the Laws of England Blackstone is regarded as being the first person after Henry de Bracton during the thirteenth century to bring out an all around English law treatment. The commentaries emerged, between the years 1765 and 1769, from the several of Blackstone’s lectures at the university (Croft and Hanak, 59)4. The commentary represents change from the traditions legal thought which tended to treat the law as a list of unrelated statutes and writs. Through the various ideas brought out by the commentaries, Blackstone created a connection between the various intellectual traditions that guide the common- law with traditions that guided the English- political ideas or philosophy between the seventeenth and the eighteenth century. Through this Blackstone sought to create an understanding for the legal order at the time (Waterman, 348). In treating law, Blackstone brought out the need to have a difference between municipal or positive and natural law by enhancing on the maintenance of natural- law and insisting that municipal law does not fall in line with the natural one and hence should not be regarded as being law. He however felt that positive law deals with a number of various principles and issues that natural law remains silent on (Cairns, 208)5. He for example regarded gravitational, natural and England law as being some of these principles which represents an imposition of regulations to follow on individuals by a power that is superior to them. By positive law, Blackstone referred to a just rule or right that calls for right to be done and forbids wrong doings. According to him, the rights enjoyed by the English men were those proclaimed by the common law. This is contrary to the common belief that the Englishmen’s main reason for creating the common- law was to be able to claim their various rights (Croft and Hanak, 61). Blackstone main basis is on the theory of Single variable essentialist where by the main issue of concern and importance is the right of exclusion. He strongly regards the right of exclusion as being the required and efficient property condition (Croft and Hanak, 63). Australian Law of Property: Features as those in the Blackstone commentaries The Australian law of property refers to the structure of laws that regulates and prioritizes the responsibilities, interests and rights of people in terms of things which include property and the rights to own or possess a particular object (Waterman, 354). The law of property Act 1924 classifies property as being tangible and real. Land is for example grouped as intangible or as being personal while tangible refers to things such as a seat and prioritizes or orders rights related to this property. Debates have constantly arisen over what is actually regarded as property as well as when a person or group of people or corporate acquires priority in terms of interest for the thing. Here various ways through which property law can be organized. Such ways include the distinction accord, the nature of the things upon which rights are to be accorded as well as the rights relating to a particular subject (Harward, 292)6. Many of the obsolete categories that were designed very many years ago also distinguish property law from other different kinds of law. The various categories of property law in Australia have been found to conflict with the various community practices and norms. In personal or real property, the distinction is placed on the basis of the nature of the related right but not on the particular thing or object. The various property land rights referred to as real property- b/c right holder is likely to bring about real action aimed at recovering land that could be in possession of another person ho is not entitled to it or who has acquired it illegally. Private property does not contain such remedy or real action but has a personal- action that allows for compensation for all the loss brought about by the individual who unlawfully meddled with the property and right (Miles, 27)7. Distinction is still seen in terms of goods and land such that all the real rights to property are rights to ownership of land while the rights to private property are not. There is however rights of property to land that are not really real property like for example leases where an individual does not actually have ownership to the land. The ownership is in this case only temporary and on contract basis. New action in the case of ejectment can act as a way through which tenants that have been disposed can repossess their rented land. This remedy is seen as being better and more efficient as compared to real actions. Property rights are inmost cases created through consent such as that of the selling of goods. It can as well be created through wrongdoing like for example in the situation where an employer posses the right to obtain bribe that has received from his or her employees. Unjust treatment is also another way through which property rights can be created. A good example of this is with the recovery of goods or land that has been mistakenly transferred. The Law of Land in the Australian Property Law Land makes the key most division in the law of property. It is clarified as natural, stationary and permanent contrary to most goods. The western law of property and especially that of the Australian law highly focuses on land. The legally undertaken developments within this sector are more than those within other sectors of property law mainly because of the high value that land possesses as compared to other kinds of property. While the Roman as well as that of various European nations group things as either being immovable or movable, the Australian law identifies them as being real or personal. This categorization does not however fall in line with accurate precision. In every Australian state, a different kind of rule has been given for the bureaucratization and control of land. Though it makes a big part of the statute law, land law is still capable of being highly influenced by the various principles from the history of Australia as a UK colony where the law of estate and land was created through feudalism. Other than this, the law is still likely to be influenced as well as by the common- law. The Real Property Act of 1925 allows for a system of evidencing, identifying as well as giving title to a land to be done and in turn allows it to be used for economic gains. Other property law instruments that influence commercial and private land dealings include lease, mortgage, easement and covenant (Blackshield & Williams, 96)8. The legislation of property in every state is based on the Torrens rule of title registration provided in the Torrens title Act of 1858. This is to mean that every state holds a common register for all the lands within it which also indicates who owns the land. The creation of this system was with the aim of reducing land related fraud cases that was done by individuals falsifying title deeds that granted them false ownership for someone else’s land. The system also makes it possible for other land entitlements like for example mortgage, through which land acts as a security for a loan, to be registered. Another key rule in this system relates to title indefeasibility one has a right to the land by registration. The right can in this case cannot be taken by any other person unless in specific circumstances. This principle as a key feature of the Australian law of land as a property is as brought out by Blackstone’s commentaries on the Law of England. The registration of land and the provision of a title to an individual for ownership of the land, gives the individual the right to the land which excludes all others from using or gaining any benefits from the land (Bant, 72-5)9. The law of Australia in terms of chattels and goods Chattels and goods refer to other items other forms of property which are not intellectual property and that are not land. The Australian law related to these items is similar to that of the UK. The difference in the systems of common law is created between chattels (personal) property and real property like land. Prior mid nineteenth century, the various rules guiding real and personal property devolution were found to differ. The differences were most especially because land cannot be moved hence its governing laws must also be different. The difference is also created by the fact that in most cases, legislation is done using traditional terminology (Blackshield & Williams, 116). There has been a lot of criticism on chattel and land as these two are regarded as being unsatisfactory to act as a base for creating a distinction between the property principles laws as it does not focus on the proprietary interests but rather on the various objects related to these interests. In addition to this, when we have fixtures for example, chattels which in most cases are fixed on land are likely to become parts of that land. This is as brought out by the case of Yates v. Milwaukee. In the case of intellectual property, Australia acts in line with the English traditions related to it. Being a Berne Convention for the Protection of Literary and Artistic Works signatory, Australia operates using an automatic copyright system. Other important areas related to intellectual property laws in Australia include patents and the rights related to design as well as plant breeders (Melville, 179)10. An Australian case on private property The case of Taylor vs. Victoria Park Racing and Recreation Grounds Ltd. High court of Australia (1937) In this case, the claims by the plaintiff are that the money expenditure has brought about a quasi property spectacle which needs to be protected by the law. The issue here is whether the owner of the racecourse is capable of hindering the defendant from broadcasting and watching the races and whether denying the plaintiff labors fruits should cause action. The reasoning for the case was in such a way that, the majority was not concerned with providing protection to the gained labor fruits. They felt that the owner’s property rights were not in any way interfered with and could only have been said to be so if the defendant was defaming him. The suggested solution was that the plaintiff should construct a fence that is higher. The court however maintained that the mere fact that the broadcast was done as a way of gaining profit and while doing this they inhibited the plaintiff from gaining profit does not create any changes. This means that denying one his fruits- of- labor does not equate to a cause- of- action. According to the Precedence the law does not contain anything that inhibits person from viewing or listening to an ongoing occurrence and passing word of the occurrence taking place at another person’s property. News broadcasters also do not own any spectacle of their own. Bundle of Rights: this relates to the rights to gain income from an owned thing or object. Making profits is one main reason why a person may own land. The gaining of profits through the land requires that all others be totally excluded except in selected situations such as in the case of payments. This is similar to the case of the Blackstone commentaries whereby ownership of property excludes all others from its use or acquisition of its benefits. The case of Victoria Park Racing and Recreation Grounds Ltd. vs. Taylor can be viewed as being more of unfair trade or competition rather than that of property rights. If disputes could be resolved and interests protected through other ways such as laws against competition, then property rights should not be extended. If we can resolve disputes and protect interests by some other means (e.g. anti-competition law, we should not extend property rights. The courts of Australia lacked a tort related to unfair competition though they had nuisance laws. In case the plaintiff was making reasonable and normal utilization of the possessed land while the defendant was abnormally using the land and in turn negatively impacting on the plaintiff by decreasing expected profits from the land, then this would have been regarded as being a cause –of- action. Conclusion From the above discussion, the Australian law of property contains many common features as those of the Blackstone commentaries. The law as that of the commentary focuses on ownership to property as aright which excludes other people from using or benefiting from the property. Property has been said to be either tangible or intangible with tangible referring to real property such as a car while intangible (personal property) refers to for example land. Land makes the key most division in the law of property. It is clarified as natural, stationary and permanent contrary to most goods. Ownership and right to it is granted through the issuance of a title deed as dictated by the Real Property Act of 1925. Acquisition of a title excludes others from utilizing it or benefiting from it. The law of land is still likely to be influenced as well as by the common- law. Works Cited Bant, E. An Introduction to Property Law in Australia. Melbourne University Law Review, 16(5): 45-76, 2002. Blackshield & Williams, G. Australian constitutional law and theory: commentary and materials. Sydney: Federation Press, 2006. Cairns, J. “Blackstone, An English Institutist: Legal Literature and the Rise of the Nation State". Oxford Journal of Legal Studies 4 (1): 200-237, 1984. Croft, E. and Hanak, A. "Human beings" as excluded subject matter for the purposes of the Patents Act 1990. Australian Intellectual Property Journal (AIPJ, 5(2):46-67, 1993. Fruehwald, E. "A Biological Basis of Rights," 19 Southern California Interdisciplinary Law Journal, 195: 16-30, 2010. Harward, J. “Blackstone Commentaries” The Cambridge Law Journal, 4 (3): 286-307, 1932. Marshall A. “Modern Intellectual Property”. The journal of world intellectual property, 6(2):123-156, 1994. Melville, L. Forms and Agreements on Intellectual Property and International Licensing .New York: C. Boardman Co., 1979. Miles, S. "Blackstone and his American Legacy". Australia & New Zealand Journal of Law and Education, 5 (2): 21-35, 2000. Waterman, S. "Mansfield and Blackstone's Commentaries". The University of Chicago Law Review, 1 (4):321-56, 1934. Read More