The Idea of Property in Land - Essay Example

The Idea of Property in Land Introduction In the modern legal context there are many arguments about property. In accordance with a well-known claim developed by Professor Lawson: there is "a world of pure ideas from which everything physical or material is entirely excluded with abstracted principles which seem to move among themselves according to the rules of a game which exists for its own purposes1. The Professor applies this concept to the property of land. It should be mentioned that a conceptualization of property is a complex and challenging process. There are many fragile concepts, which are often misinterpreted in terms of property ideas. Further on in this paper we will try to identify the concept of "property", relate it to land ownership and consider these issues in the existent legal paradigm of Britain and America. Identification of Property As a rule, a thing, which is the object of "ownership", refers to property. Actually, one should know that property is not a thing but rather a relationship which is established in the result of property existence. For 'property' we can relate words, which describe a certain degree of power over some things and resources. In the legal context "usage property is not the land or thing, but is in the land or thing"2. We can illustrate the example of property with the word combination "a proper thing". When someone has particular resources at a particular time it means that a thing owned is of infinitely gradable quality. Actually, interrelated relations define a myriad of property's characteristics. Legal rights dictate the rights, which define if land belongs to our "owners" or "strangers". It is possible to give a straightforward analysis of 'property' in land. It can be claimed vice versa that to identify "property" one requires a certain degree of time and skills. Different perspectives can play a decisive role in legal nature identification. There are different ways of English law context identification and the main roles and models of "property" identification should be taken into account. Under conditions of common law "property" can be understand as a certain allocation of social utility. The psycho-social nature of "property" understanding can be clarified under conditions of some hypothetical variants. To describe "possession" one can claim the following things: "a conclusion of law defining the nature and status of a particular relationship of control by a person over land"3. Concerning etimology of word "property" it is possible to say the following thing: such terms as 'property', 'proper', 'appropriate', and 'propriety' underline the value-laden complexity of the inter-relating issues in the theme of property. It is necessary to differ between property use and an overall territorial control4. It should be mentioned that even for the modern courts identification of the concept of "property" is rather challenging. For example, the "property" enjoyed by a leaseholder and a fortiori by the freeholder is characterized by a certain degree of freedom, when each of them can call this place to be his own. Coke CJ underlined many years ago in Semayne's Case,"the house of everyone is to him as his castle and fortress". The essence of leasehold estate is currently defined by Lord Denning as a "stake" in the premises, which is distinct from a mere "permission for himself personally to occupy"5. In the context of English land law the operative concept has been more focused on possession rather than ownership. Nevertheless, the "property" of estate ownership is derived from "exclusive possession", which stands for not only a unique factual presence upon land but also a certain degree of inner assumption that the power relations are generated in terms of this presence. Thus, the lodger, unlike the tenant, is subject to the supervisory authority of the owner, who at all times "retains his character of master of the house, and ... retains the general control and dominion over the whole house"6. On the contrary, "[a] licensee lacking exclusive possession can in no sense call the land his own." 7 The main scope of issues considering definition of "property" in English law can be considered in terms of the following claim: "Exclusive possession de jure or de facto, now or in the future, is the bedrock of English land law" 8 Under conditions of English law, any person possessing land has a fee simple estate in the land otherwise it is shown on the contrary. Property, if it is related to land, can be defined as a scope of rights applied for land. 9 "Property" as a Fact and "Property" as a Right These approaches to definition of property have much in common. For example, in terms of law of adverse possession, 'property', is considered as a fact and it is supposedly generates "property" as a right. In some other contexts this right can be described as the right which ordinarily generates the fact. The threshold question is, however, whether 'property' is conceived as an abstract right or as the raw emanation of a constituted fact. In accordance with Walsingham's Case (1573)10, "the land itself is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time ... "11. Different interpretations of "property" can be explained either in terms of jural abstractions or on the basis of physically verifiable phenomena. It is possible to identify a clear-cut quality of "property" and the rights to which 'property' is more related to hard-edged definitional integrity related to the intellectual orderliness. Lord Wilberforce underlined that before the interest or right is referred to property, it must be "definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.12" In terms of Civilian systems of property law ownership is defined as absolute jural relationship between a person and a thing. It dates back to the Roman law, where the great codes of continental law identify "property" in more abstract terms of dominium –the right to enjoy and dispose of it in the most absolute manner. Currently it is difficult to consider a concept of "property" in a certain context. It is more appropriate to focus on recent case law developments and consider this concept from different perspectives. Thus, in terms of common law it is possible to identify "property" in the following way: the "sliding scale test" can be applied13. This test underlines that in case private property is on the sliding scale, there is a counterbalancing between expressional and property rights. "Property" as Responsibility Land can be turned to advantage in many related ways; different actions are connected with the features of property possession, such as occupancy, consumption, exchange, empowerment etc. Nowadays it is often claimed that "property" is only a defeasible privilege for the citizen. Thus, it turns into a state-directed responsibility of the citizens and different resources of property are correlated with the common welfare. It is more not about right, but about a restraint. In terms of the classic liberal image of "property" this concept is considered as a socially constructed privilege of use. There is a combination of an individualized power and efficient mechanism of promoting ecologically sound community. Eric Freyfolge develops an interesting approach to definition of property. He claimed: "[a]utonomous, secure property rights have largely given way to use entitlements that are interconnected and relative ... Property use entitlements will be phrased in terms of responsibilities and accommodations rather than rights and autonomy. A property entitlement will acquire its bounds from the particular context of its use, and the entitlement holder will face the obligation to accommodate the interests of those affected by his ... use."14 We can correlate a famous case Tesco Stores Ltd v Secretary of State for the Environment [1995]15, when the House of Lords considered these consideration as a potential "material" for planning a certain application. The applicant had to provide additional benefits for the community, such as an additional link road to facilitate the city's congestion. There are different recipients of property, who can either follow or not this particular regulation A modern vision about property Nowadays the concept of 'property' in land refers to nothing more but a user-privilege. When property dimension is recognized it is possible to focus on environmental concerns. Nevertheless the majority of English courts do not acknowledge "property" in these terms. For example, in a famous case R v Thurrock Borough Council, ex parte Blue Circle Industries 16a local authority had been was able to release a tenant company from a leasehold covenant for money. This would require the usage of only high-density baled domestic refuse at a landfill site. However, the Court of Appeal denied holding that the proposed facilitation of the leasehold conditions would constitute a "disposal" to the tenant of "any interest in or over land"17 claiming that this issue is covered only "some altogether more fundamental surrender of proprietorial rights"18. It is possible to provide some other arguments concerning the concept of "property" such as severable utilities rather than pragmatic rights. The main part of the governmental activities nowadays involves not the direct compulsory acquisition of a fee simple or leasehold interest by the state, but the introduction of serious society and community-focused restrictions concerning free enjoyment of estate ownership. Currently, law jurisdictions are challenged with the question if the introduction of a wide scope of environmental regulation can ever replace a substantial acquisition or taking away "property" from the citizens, which needs payment of publicly funded compensation. For example, the government can put on the list some "conservation areas" or buildings of a "special historical value or interest". Property owners near the Environment Agency privatized Water Company experience a constant noise, water pollution and other inconveniences. It is relevant to conduct compensable policies in this case, but these policies should be developed with respect to "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole"19. If one follows the words of Justice Holmes, it is possible to see that it is difficult for the government to follow its principles in case the values of property are diminished. Under certain conditions both the public and landholder should have benefits of environmental concerns followed by the landowners. Neither morals nor environmental issues should be violated in terms of property establishment. Therefore, public interest is one of the first and foremost concerns for the modern governments. The proprietary utilities relevant to a landholder are incurred by a community-focused obligation to preserve and support fragile features of the environment. It can be very difficult and very challenging for the modern land owner to follow these modern takings of law. There is one of the most famous cases, when a property owner was forbidden to build more luxurious houses. This case is known as Lucas v South Carolina Coastal Council and the reason for forbidden building and construction can be explained in the following way: the Supreme Court of South Carolina made this challenging decision because it was a kind of a hazardous development of environmentally sensitive building. This can be explained not only in terms of community concerns, but also in the interests of an individual. One of the most recent explanation in the American legal system is the following: "the question is simply one of basic property ownership rights: within the bundle of rights which property lawyers understand to constitute property, is the right or interest at issue, as a matter of law, owned by the property owner or reserved to the state?"20. This close relation to South Carolina's coastline can be correlated with storm damage and occurrence of hurricanes and other environmental hazards. There are many different nuances of property, but individualistic and environmental concerns should be the basic ones for identification of property ownership. On the other hand, it is inappropriate for the State or the government to transform public property into public one. It is appropriate for the State to claim that the Beachfront Management Act should be taken into account for sure. Moreover, very often the social and moral restrictions limitations of "property" prove the fact that in any case property in land is finally infected with extensive public law significance. Conclusion This paper was focused on different approaches and identifications of "property". Very often the concept of "property" can emerge as a self-constituting fact. Nevertheless, various approaches and alternative models cannot exist in a resolute opposition, because they are closely related to a total richness of the existent land law. There is a close relation between time and place and each of these two basic pillars is decisive factor in development of property concerns. The role of states in the issues related to property can be explained in the following way: they perform a critical role though they do not play a vital role in property equation. Property is only one realization of possible power-relations allowed in the society. There is no doubt that society and government play decisive roles in the concept of property development and these crucial factors should be considered in the modern legal context of the countries as the dominant ones. Read More