Property Law: Concept, Rights, and Protection

This article provides an in-depth analysis of property law, including the concept of property, its rights, and the need for protection. It explores the different forms of property and the role of possession. The article also discusses the Australian property law system, its regulations, and the importance of intellectual property rights and tenant protection laws.

Property Law
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Table of Contents
Introduction...........................................................................................................................................3
Main context.........................................................................................................................................3
Conclusion.............................................................................................................................................9
References...........................................................................................................................................10
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Introduction
The concept of property is incidental to our lives and legal system. Property protects and
separates individuals from the collective sphere1. Property can be tangible or intangible in
nature. The rights and interests a man has in his lands or chattels to the exclusion of others.
Property is a physical or virtual entity that is owned by an individual or collectively by a
group of individuals. Property is a legal domain which constitutes the idea of ownership.
Professor Underkuffler has stated that property is considered to be a medium through which
struggles between collective goals and individual have changed direction. The property
reflects the tension between the individual and the collective. The concept of property is so
powerful that it holds a fundamental place in the constitution. The property has been the
reason for struggles between individuals and communities. The statement of Professor
Underkuffler is true as for safeguarding the possession of the owner numerous laws are being
passed by the legislature. Property is a mediating factor between government power and
individual rights. Property rights have never contained or encouraged individual protection
over collective goals. No property right is absolute in nature. Right to enjoyment in property
is subject to certain limitation2. The form of property right is determined by the type of the
property. Property holds a very special place in law and hence required protection against
violation.
Main context
Analysis of the statement of Laura S Underkuffler
According to Professor Laura S Underkuffler, the property has served a media between
governmental power and individual right. It neither encouraged nor contained individual
1Kathy Bowrey et al, Australian Intellectual Property (Oxford University Press, 3rd ed, 2015).
2 Bowrey, Kathy, Michael Handler and Dianne Nicol, Emerging Challenges In Intellectual Property (Oxford
University Press, 5th ed, 2011)
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protection over the collective goals. Men clashes amongst themselves because of property3.
Many philosophers have defined property in numerous ways. During the American
foundation era, the property is not an external object but also includes power, human rights,
liberties, and various other freedoms. In Yanner v Eaton case the high court has stated that
Property is a legal relationship with a thing but not a thing itself. It further stated that property
is a bundle of rights4. The bundle of rights can be divided between those recognized by
common law and those by equity. The bundle of rights can also be divided between an owner
and a tenant. Possession is a different concept. The two essential elements of possession are
physical control and intention to possess. When goods are in custody of another we say goods
are in that person's possession.
In the case of Powell v MC Farlane the court has stated that the person who is the owner of
the land is said to be in possession of the land only if he has the title deeds of that land along
with him. In the case of Leigh v Jack the court has distinguished an intention to occupy from
an intention to possess5. To prove possession or occupation it will be taken into consideration
whether the claimant has trespassed the land or has entered with permission. The main role of
possession is to be a root of the title. In Allen v Roughly it was held that it is rare in the world
to prove that the title of the land is the best and conclusive. The type of property determines
the form of property right. The rights are the right to enjoy the property, the right to exclude
others from enjoying the property, the right to sell the property6. On seventeen century a new
form of intangible property is created by the statute which is known as intellectual property
rights. A specialist body governs the creation and transfer of intellectual property. In the case
of Asher v Whitelock, it is stated that possession is good for all except the one who can sue a
3Laura s Underkuffler, "On Property: An Essay."
4lawteacher.net, "Yanner V Eaton [1999]", Lawteacher.Net (Webpage, 2018)
<https://www.lawteacher.net/cases/yanner-v-eaton-1999.php>.
5e-lawresources, "Powell V Mcfarlane", E-Lawresources.Co.Uk (Webpage, 2019) <http://e-
lawresources.co.uk/Land/Powell-v-McFarlane.php>.
6 Bradbrook, Adrian J and Adrian J Bradbrook, Australian Real Property Law (Lawbook Co., 6th ed, 2011)
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good title. This prevents wrongdoers to take possession of land or goods because the owner
can take action against any person who interferes with his possession of land or goods. The
limitation act states that an action cannot be initiated to recover a land if twelve years have
passed since the land was in some other person’s possession.
In the case of McPhail v persons unknown, it has been held that the owner of the land can
turn the trespassers out even without the help of law by applying reasonable force. However,
the force applied must be reasonably necessary7. Yes, Professor Laura S Underkuffler has
stated it correctly that property is the root cause of all problems. Those having property as
well as those not having property are equal sufferers. Those having property are in constant
fear that someone will misuse his property or will wrongfully take possession of his property.
Property is the main cause of struggle between individuals and community. The constitution
has laid down provisions to safeguard one’s property and protect it from illegal trespassers.
The limitation act has also been incorporated to protect the property owners. The property has
a very powerful image which holds a very special place in law, society and republican theory.
Property entitled protection. The property requires a protection violation of which can cause a
far-reaching effect. When an absolute approach to property combines with absolute
constitutional guarantees a problem arises8. Property rights are absolute in any society.
According to Hamilton, one of the objects of government is the security of property and
personal protection. Fisher Ames stated that it is the government's duty to protect property.
The most common source of faction is the inequality in the distribution of the property. They
have formed distinct interests in society those who have property and those who do not have
properties.
7swarb.co.uk, "Mcphail V Persons, Names Unknown: CA 1973 -
Swarb.Co.Uk", Swarb.Co.Uk(Webpage, 2019) <https://swarb.co.uk/mcphail-v-persons-names-
unknown-ca-1973/>.
8 Kirton, John J and Jelena Madunic, Global Law (Ashgate, 4th ed, 2009)
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Madison published an essay named property in the year 1792. In that essay, Madison has
discussed the role of government in the protection of the property. When a man has a right in
a property he is said to have a property in his rights. The court's vision of property does not
change in accordance with goals or collective pressure. The effect of an absolute conception
of property can be seen in the damages claimed and awarded under the rule of liability. The
liability rule is largely flexible in its application and the computation of damages under them.
Recognition of any concept of property is regarding the balance between the individuals and
the collective interest. Property is an expression of self and the dichotomy between others and
self. The powerful image of property that is capable of giving an individual a separate
identity than his fellow had been cited as a central symbol between the collective life and the
individual. The comprehensive approach to the property recognizes the right of an individual
to develop self-capacities in relation to others. It stresses that social context and individual
autonomy are highly intermingled9. The collective context necessary to exercise individual
rights forces one to think about the relationship between individual rights and the community.
It is a step toward individual liberty, autonomy, and collective life. Historical theories provide
that a common understanding of constitutional order and political theory is important in
understanding the concept of property.
Australian Law
In Australia, there is no unified property law. All the states have different statutes of their
own but the jurisdictions are quite similar. Property legislation is based on torrent principles
of registration of title. Each state consists of a central register of all land and the register
depicts the name of the owner of that land. This system was incorporated for reducing fraud
by duplication of title deeds. This system also provides for registration of land for a mortgage
9 Patrick Parkinson, Tradition And Change In Australian Law (Thomson Reuters (Professional) Australia, 3rd ed,
2013).
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by which loan can be secured. In Australia private property was introduced in 1788. Before
that, there was an aboriginal law based on common ownership. The property rights had been
regarded as fundamental by the common law for long. The Australian human rights
commission has identified property rights as a key concern10.
According to Blackstone, conceptualization of the property will give rise to struggle between
the supremacy of parliament and the power of the monarch. After the second World War, the
first international expression of human rights has enshrined the protection of property from
interference. The universal declaration of human rights has stated that no man can be
deprived of property arbitrarily. Property and possessory rights are also protected by criminal
laws and tort laws. In the case of Entick v Carrington, it was stated that an interference with
the possession of real property may lead to guilty of trespass or nuisance. The common law
provides protection for the detention of chattels without any authority.
In the case of National Crime Authority v Flack the plaintiff was successful in recovering
back her money from national crime authority that they have seized from her house11.
Property in Australia was both a legal and social institution. In the case of Mabo v
Queensland, the high court of Australia gave recognition to the aboriginal customary rights
for the first time. Under the modern parliamentary system, many laws have been made that
violates the property rights. The focus is how much interference can be tolerated. According
to UDHR, the property right is an absolute right and the legislature has very limited power to
encroach it. The legislature can encroach the property rights only after giving reasonable
compensation to the victim. In the case of R & R Fazzolari Ltd v Parramatta City Council,
10Geoff Thomas, Cornerstone Law Series (Law Society of South Australia, 5th ed, 2010).
11findlaw.com.au, "Found A Fortune In Your Home And Didn’T Know How It Got There? How The
Cash May Still Be Yours", Findlaw.Com.Au (Webpage, 2019)
<https://www.findlaw.com.au/articles/4492/found-a-fortune-in-your-home-and-didnt-know-how-
it.aspx>.
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the court held that acquisition and compulsory acquisition of property are the creation of
statute.
Australian IP law governs the Intellectual property and other intangible assets. IP law is
designed to protect business and encourage innovation. Australia has signed a number of
agreements that protect intellectual property rights in other countries. The Australian
government agency IP Australia administers legislation and IP rights12. The Australian patent
law protects a patent holder by preventing other persons from manufacturing, selling or
giving a rent of the product. The patent office of IP Australia administers the Australian
patents. A trademark provides legal protection by preventing others from using the same
brand name as that of the trademark holder13.
Under Australian The tenant protection laws in Australia are neutral. Residential tenancy act
protects the rights of both parties well. The landlord and tenant can freely agree on the
amount of rent payable in Australian states. In Tasmania, the increase in rent is assessed by a
magistrate but in all other places, it is reviewed by a tribunal. In order to get a rent increase
reviewed the tenant must make an application. The tribunal will take into account all relevant
factors like the proposed current rent, the term of tenancy, location of the property and the
state of the property to review the increase in the rent. Before the end of the first year of
tenancy, no rent can be increased. The rent cannot be raised more than once in a year. In
South Australia, Western Australia and Victoria the rent can only be increased at an interval
of six months. For increasing the rent the service of notice has to be effective. In states like
New South Wales, Tasmania, South Australia, Western Australia and Victoria there requires
a sixty days notice for any increase in rent14.
12 Roger Vickery and MaryAnne Flood, Australian Business Law (Pearson Australia, 4th ed, 2012).
13John J Kirton and JelenaMadunic, Global Law (Ashgate, 4th ed, 2009).
14Callie Harvey, Cornerstones Of Australian Law (Tilde University Press, 5th ed, 2009).
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The Northern Territory and Queensland require one month notice. The capital territory of
Australia requires a notice of eight weeks. The tenant has to deposit certain money as a
security deposit before the commencement of the tenancy. The tenant is also expected to pay
a rental bond. There are two types of tenancy in the country they are fixed term tenancy and
periodic tenancy. The landlord can revoke a tenancy either by notice or by the tribunal. The
legal system of Australia is very effective it takes a maximum of six days to enforce the
ruling. The tribunals and magistrates can order the eviction of the premises. The land
acquisition act is the only law concerned with Commonwealth property of land. The
Commonwealth can acquire only an interest in the land. The act provides a detailed outline of
the acquisition of land and protection. The act ensures that there is fairness in the compulsory
acquisition of land. The Commonwealth laws interfere with property rights are environmental
laws, native title laws, and criminal laws15.
Conclusion
Contemporary attempts have been made to define a property which protects and represents
the individual's autonomous sphere16. Professor Underkuffler is of view that property is the
main cause of conflict between individuals. The Australian law follows Underkuffler views
that the absolute individual right is not contained in the property right over collective goals.
Historical theories can provide insight and argument for political theory and debate. By
recognizing the right between the individual and collective the approach provides an
alternative that recognizes the independence of the self and others. The labour theory of the
property is also known as positive theory. This theory asserts that property is the result of
ones labour. The psychological theory claims that property comes into being as a result of
acquisitive instinct of individual. The functional theory also known as sociological theory
15Callie Harvey, Foundations Of Australian Law (Tilde UnivPr, 3rd ed, 2017).
16Adrian J Bradbrook and Adrian J Bradbrook, Australian Real Property Law (Lawbook Co., 4th ed,
2011).
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asserts that the concept of property should be treated as social institution. The property is
capable of undergoing changes with the changing norms of the society. Property came into
existence when laws are framed by the states.
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References
Bowrey, Kathy et al, Australian Intellectual Property (Oxford University Press, 3rd ed, 2015)
Bowrey, Kathy, Michael Handler and Dianne Nicol, Emerging Challenges In Intellectual
Property (Oxford University Press, 5th ed, 2011)
Bradbrook, Adrian J and Adrian J Bradbrook, Australian Real Property Law (Lawbook Co.,
4th ed, 2011)
Bradbrook, Adrian J and Adrian J Bradbrook, Australian Real Property Law (Lawbook Co.,
6th ed, 2011)
e-lawresources, "Powell V Mcfarlane", E-Lawresources.Co.Uk (Webpage, 2019) <http://e-
lawresources.co.uk/Land/Powell-v-McFarlane.php>
findlaw.com.au, "Found A Fortune In Your Home And Didn’T Know How It Got There?
How The Cash May Still Be Yours", Findlaw.Com.Au (Webpage, 2019)
<https://www.findlaw.com.au/articles/4492/found-a-fortune-in-your-home-and-didnt-
know-how-it.aspx>
Harvey, Callie, Cornerstones Of Australian Law (Tilde University Press, 5th ed, 2009)
Harvey, Callie, Foundations Of Australian Law (Tilde Univ Pr, 3rd ed, 2017)
Kirton, John J and Jelena Madunic, Global Law (Ashgate, 4th ed, 2009)
Kirton, John J and JelenaMadunic, Global Law (Ashgate, 4th ed, 2009)
lawteacher.net, "Yanner V Eaton [1999]", Lawteacher.Net (Webpage, 2018)
<https://www.lawteacher.net/cases/yanner-v-eaton-1999.php>
Parkinson, Patrick, Tradition And Change In Australian Law (Thomson Reuters
(Professional) Australia, 3rd ed, 2013)
swarb.co.uk, "Mcphail V Persons, Names Unknown: CA 1973 -
Swarb.Co.Uk", Swarb.Co.Uk(Webpage, 2019) <https://swarb.co.uk/mcphail-v-persons-
names-unknown-ca-1973/>
Thomas, Geoff, Cornerstone Law Series (Law Society of South Australia, 5th ed, 2010)
Underkuffler, Laura s, "On Property: An Essay"
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Vickery, Roger and MaryAnne Flood, Australian Business Law (Pearson Australia, 4th ed,
2012)
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