Property Law

This entry for the forthcoming The New Palgrave Dictionary of Economics (Second Edition) surveys the economic analysis of five primary fields of law: property law; liability for accidents; contract law; litigation; and public enforcement and criminal law. It also briefly considers some criticisms of the economic analysis of law.

CHAPTER SIX GEDIK: A BUNDLE OF RIGHTS AND OBLIGATIONS FOR ISTANBUL ARTISANS AND TRADERS, 1750-1840 Engin Deniz Akarli Law plays an important role in society not only in the regulation of human relations and transactions but also in providing a sense of ...

This article analyses two cases brought by aboriginal Australians against the Australian government acquisition of long leases of their land under the Northern Territory National Emergency Response Act 2007. These leases are conspicuous, particularly in that the government always made it clear that it would not take up its right to exclusive possession of the leased land, and has not done so. The leases have not been used to evict residents, as some feared; nor to pursue mining or agricultural activity. Socio-legal theories centered on the right to exclusive possession cannot account for these leases. The article explores the use of property under the 2007 Act, the legal geographies of the areas subject to the leases and the political potency of property beyond exclusive possession, and suggests an understanding of property as a spatially contingent relation of belonging. Specifically, the article argues that property is productive of temporal and spatial order and so can function as a tool of governance.

Artykuł prezentuje budzące liczne wątpliwości w literaturze oraz rozbieżnie oceniane w orzecznictwie zagadnienie związane ze stosowaniem mechanizmu komunalizacji mie-nia nieruchomego na terenie Warszawy. Chodzi o przyjęte przez komunistyczne władze w dekrecie z 26 października 1945 r. o własności i użytkowaniu gruntów na obszarze m.st. Warszawy 1 (tzw. dekret warszawski) wymaganie, aby osoby ubiegające się o ustano-wienie prawa powierzchni (dawniej) [heritable building rights of superficies], a współcześnie użytkowania wieczystego [right of perpetual usufruit] były posiadaczami [possessors] swoich dawnych nieruchomości. Dekret bowiem komunalizował (nacjonalizował) wszystkie grunty na terenie Warszawy w celu odbudowy miasta ze zniszczeń wojennych. Osoba spełniająca waru-nek posiadania albo jej przedstawiciel prawny mogli złożyć w terminie 6 miesięcy od objęcia gruntu w posiadanie przez gminę wniosek o ustanowienie prawa umożliwiającego korzystanie z przejętej przymusowo nieruchomości. Przyznanie możliwości składania wniosków o usta-nowienie prawa powierzchni miało służyć umożliwieniu ich dawnym właścicielom [former owners] uczestnictwa w odbudowie stolicy. Samo przyznanie prawa wiązało się z istotnymi obowiązkami, np. w postaci wzniesienia budynku lub innego urządzenia, a także ich utrzy-mania w odpowiednim stanie. Kontrowersja zasadnicza dotyczy tego, czy nakaz posiadania jako warunek przyznania prawa korzystania z gruntu przez gminę dotyczy dawnych właś-cicieli czy wyłącznie ich następców prawnych (w tym przede wszystkim spadkobierców). Jeżeli zainteresowany nie posiadał nieruchomości, to wówczas nie mógł skutecznie docho-dzić ustanowienia prawa powierzchni. Wymaganie posiadania jako możliwości efektywnego władania nieruchomością było oceniane pod rządem obowiązujących na ziemiach centralnych Polski przepisów Kodeksu Napoleona, później zaś nowego polskiego prawa rzeczowego z 1946 r. Posiadanie jako warunek nabycia prawa powierzchniowego służyło ustaleniu możli-wości współuczestniczenia w odbudowie zniszczonych budynków i innych urządzeń, a także umożliwiało ustalenie, czy osoby uprawnione żyją czy też utraciły życie wskutek zawieruchy wojennej (w szczególności w Holokauście). W artykule prezentowane są argumenty za przy-jęciem konieczności analizy istnienia posiadania po stronie dawnych właścicieli (a nie tylko ich następców prawnych). Problem ma także współcześnie istotne znaczenie praktyczne. Także obecnie rozstrzygane są bowiem złożone jeszcze w latach czterdziestych XX w. wnioski, a niewykazanie wówczas posiadania przez ubiegających się o przyznanie prawa powierzch-niowego właścicieli skutkuje także dziś koniecznością odmowy ustanowienia użytkowania wieczystego. Słowa klucze: komunalizacja, nacjonalizacja, posiadanie i własność nieruchomości, nieruchomości warszawskie, prawo powierzchniowe, przemilczenie, Code civil Napoleon 1 Dz.U. poz. 279 z późn. zm.

By demanding stewardship of natural capital over exploitation, sustainability envisions a property regime less committed to individual property rights than are the traditional and economic theories of property. While the traditional property theories of Blackstone, Locke, and U.S. constitutional doctrine tolerate restrictions on private property rights for the sake of public welfare, they resist the strongest versions of sustainability, which promote generational and social justice. Similarly, an economic analysis of property recognizes the values of resource conservation and welfare for future generations, but only to the limited extent the economist can calculate future value. As a result, economic analysis may overlook or undervalue the interests of remote generations. Moreover, the goal of a more egalitarian distribution of resources, which informs the social justice model of sustainability theory, runs counter to the dominant economic analysis of property. Only relational principles at the fringes of property theory in the United States can fully embrace the strongest versions of sustainability. Thus, absent an unlikely theoretical revolution in the U.S., the sustainable development agenda cannot succeed in this country at the level required by the international community.

In this article, we present a perspective on the interaction between formal and informal institutions in spatial planning in which they transform each other continuously, in processes that can be described and analyzed as ongoing reinterpretations. The effects of configurations and dialectics are often ambiguous, only partially observable, different in different domains and at different times. By means of analyses of key concepts in planning theory and practice, this perspective is illustrated and developed. Finally, we analyze transformation options in planning systems, emphasizing the limits of formal institutions in transforming formal/informal configurations, and stressing the importance of judgment and conflict.

This article deals with copyright regulation meeting the quite rapid societal changes associated with digitization, and it does so by reinterpreting Karl Renner's classical texts in the light of contemporary cognitive theory of conceptual metaphors and embodiment. From a cognitive theory perspective, I focus on the notion that the legal norms only appear to be unchanged—the Renner distinction between form and function. This includes social norms, technological development, and changes in social structures in general, which create a social and cognitive reinterpretation of law. This article, therefore, analyzes the contemporary push for copyright as property, which I relate to historical claims for copyright as property as well as de facto legal revisions in intellectual property faced with the challenges of digitization. Of particular relevance here is what Renner described in terms of property as an “institution of domination and control,” and thus the increased measures for control that are added to a digital context in the name of copyright.

The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of landholding, which are entrenched in notions of community consensus and existing occupation. The discrepancy between such orally recognized antecedents and the written word of law have been at the heart of the recent wave of dispossessions that have swept across the country. Contra the standard critique that corruption has set the tone, this paper argues that evictions in Cambodia are often literally underwritten by the articles of law. Whereas ‘possession’ is a well-understood and accepted concept in Cambodia, a cultural basis rooted in what James C. Scott refers to as ‘orality’, coupled with a long history of subsistence agriculture, semi-nomadic lifestyles, barter economies, and–until recently–widespread land availability have all ensured that notions of ‘property’ are vague among the country’s majority rural poor. In drawing a firm distinction between possessions and property, where the former is premised upon actual use and the latter is embedded in exploitation, this article examines how proprietorship is inextricably bound to the violence of law.

This article reviews the main scholastic norms relevant to property and land rights in ancient and medieval India, and then surveys a range of inscriptions that illustrate the contours of land law in practice.  The evidence suggests that India developed a sophisticated concept of landed property from earliest history, with conceptual tools and legal instruments to define the rights of owners vis-à-vis rulers, rival claimants, and holders of subordinate interests (such as tenants, cultivators, mortgagees, etc.).  It further shows that although earlier inscriptions deployed those tools and instruments in a narrow range of transfers between rulers and Brahmins or other religious groups, subsequent periods provide evidence of an increasingly wider application, including gifts by non-elite donors, ordinary contractual land transfers, and resolution of property disputes.  In some cases, the implication seems to be that the legal framework was more widespread in practice but generated durable records (in metal or stone) only for elite actors; in many cases, it seems likely that elite legal resources became more widely available over time.  Moreover, documents sometimes bring to the fore aspects of property law — the role of councils and arbitrators in administering the law (rather than the king or his officers), or the use of documents to carve out special rights — that are less prominent in scholastic treatments such as Dharmaśāstra.

Bu çalışmada, öncelikle, hava araçlarının, taşınırlara ilişkin genel hukukî rejimden farklı olarak, neden sicile kaydedilerek rehnedilmesi gerektiği üzerinde durulmuştur. Ardından hava araçları üzerinde tesis edilebilen bazı teminatları uluslararası düzeyde koruyan Cape Town Sözleşmesi'nin ve buna ilişkin Protokol'ün etkileri ele alınmıştır. Sonrasında, Türk Sivil Havacılık Kanunu'na göre hangi hava araçları üzerinde ipotek kurulabileceği incelenmiş ve hava aracı ipoteğine hâkim olan ilkeler irdelenmiştir. Devam eden bölümlerde, sözleşmeye dayanan hava aracı ipoteğinin tesisinden sona ermesine kadar olan tüm süreç ortaya koyularak tartışmalar ve sorunlara ilişkin değerlendirmeler yapılmıştır.

Access to housing is a crucial issue worldwide. It is still under discussion whether collaborative economy is enhancing or, on the contrary, constraining access. In this context, the concept of 'collaborative housing' (collaborative economy applied to the funding, access and organisation of housing) arises to address a range of situations that might potentially help people to access housing, such as co-housing or the so-called 'intermediate tenures'. Disintermediation through blockchain technology, and the resultant effect of a reduction in the transaction costs of access to housing, is one of those trends regarding collaborative housing. Accordingly, the adaptation of the disintermediation mechanism to the real estate conveyance and land registry, as in many other sectors of the collaborative economy, is timely. This can be achieved by exploring the potential of this mechanism in enhancing traditional methods of this sector through possible technological solutions. This paper presents a preliminary discussion on the different types of collaborative

The pervasive and important territorial dimensions of property are understudied, given the tendency to view territory through the lens of the state. Viewing both property and territory as relational, and mutually recursive, I introduce the practical work of property’s territory, the historical moment in which it was produced, the powerful metaphors that work through it, and the habits and everyday practices it induces.  The territory of property, I suggest, has a specificity, a presence, and a consequentiality all of which demand our attention.

In British Columbia, Canada’s westernmost province, unresolved Aboriginal claims to land remain highly contentious. Since the early 1990s, a unique treaty negotiation process has sought to resolve questions about land ownership and establish a new relationship between Aboriginal peoples and the Crown. After almost two decades, the limitations of this treaty process are increasingly evident and answers to the land question remain elusive. This article examines this treaty-making process through a property lens, focusing on how particular models of property are privileged by and produced through this approach to treaty. I argue that the treaty process, as currently structured, works to entrench dominant Western forms of property across Aboriginal territories in a highly separate and unequal manner, and as such, serves to re-inscribe asymmetrical relations of power between Aboriginal peoples and the Crown. To a considerable extent, this asymmetrical approach to property making explains the lack of progress towards treaties. The final part of the article explores alternative approaches to treaty proposed by Aboriginal groups. I argue that these proposals, which reflect Aboriginal understandings of property, offer a new and more promising direction for treaty making. In particular, the emphasis on sharing lands and resources, as well as the wealth generated from these, provides a path to reconcile competing property interests and to build a new and more respectful relationship between the Crown and Aboriginal peoples. I suggest that the difficulties of treaty making in British Columbia reflect broader challenges associated with land restitution and reconciliation in settler colonies.

As a way of celebrating its centenary, I sketch out a vision of how to
revitalize land use and zoning law. Such a vision is called for not merely because of
the marking of 100 years of zoning. Due to the immense impact land use laws have
on human lives and their surroundings, it is crucial to regenerate the land use law
system and to ground it within an ethical foundation. A land use law system should
be based on an ethical commitment to fairness and sustainability. It should be guided
by principles of democracy and transparency; by norms of accessibility, diversity,
and density; and by a requirement to preserve a fair ratio between the distribution of
burdens and the allocation of bene!ts. This chapter’s focus is on the latter principle,
which is demonstrated by two examples: on how to substantiate development agree-
ments, and on how to analyze the distributive effect of eminent domain.

As fear of financial market turbulence reaches its most severe level since the lead up to the Great Recession in 2007, this article revisits the topic of real estate securitization while broaching a broader concern with the inadequacy of how property theory has reckoned with major changes in the post-war economy since the 1970s. To do so the article highlights a new form of securitization—of rental payments from single-family homes—that has been emerging in the United States since 2013. It discusses the new class of securities that such single family rental (SFR) payments support as one example of the economy’s ever shifting overreliance on debt-based forms of financial asset property more generally. The article situates real estate securitization in specific and financial asset property in general in relation to our reinvigorated debate in law about property as an in rem right to exclude versus a versus a bundle of social relations making democratic community possible. Arguing that neither side in the debate has been well equipped to account for financial asset property, the article makes a normative case against the renewed resort to securitization in the real estate market. Using SFR-backed securities as an example, it argues that we can better understand debt-based property derived from real estate value according to a long-standing conception in law and economics of property as a means of extracting economic rent from land. Neglected by recent theorists on all sides, this conception of property-as-rent dates to the origins of classical economic thought and remained highly influential for early institutional economists and their legal realist inheritors in the United States. Its distinguishing feature was an underlying idea of rent that concentrated attention on land control as a means of garnishing unearned revenue from production so as to inhibit rather than promote economic well being. As renewed debate in property theory has instead focused on other concerns, we have missed the key role that financial ownership claims on land’s scarcity value have continued to play in our actual economy, steadily re-directing income and investment from productive to speculative use since the 1970s. In pressing the case for the conception of property-as-rent, the article closes by drawing on a novel data set to disaggregate the relative share of land versus built structure values in the long-term composition of housing prices in the United States. By doing so, the article shows how contingent securitization is on extracting—and transforming into bondholder interest—rentierist scarcity premiums from land, which the data demonstrate to comprise much/most of the increasing value of residential real estate in the last half-century.

This paper discusses the changing urban policy framework in Turkey through a detailed analysis of a unique coupling of neoliberalism and Islamism. In this, rather than political projects with clear ultimate ends, both neoliberalism and Islamism are approached as distinct political rationalities aiming to reconfigure all aspects of social life. Turkey’s Justice and Development Party has successfully established networks of economic and political interdependence (or has tapped into existing networks) by appeasing both the emergent Islamic capitalist class through lucrative contracts and business-friendly reforms, and the urban poor through gracious gestures ingrained in traditional Islamic community values and morality. The working of this co-articulation is examined in the case of an urban renewal project in a peripheral
neighbourhood in Istanbul.

This article explores different understandings of reconciliation within the context of modern treaty making in British Columbia, focusing on the role of the BC treaty process in resolving the longstanding dispute between Aboriginal Peoples and the Crown over rights to land. Although the treaty process was created to reconcile competing interests in the land, Crown and Aboriginal negotiators often have contradictory understandings of how this reconciliation is to take place. Drawing on a case study of the Hul’qumi’num Peoples, a group of Coast Salish First Nations, I examine how different understandings and approaches to reconciliation impede progress at the treaty table. I conclude that progress towards treaty and reconciliation in this case will require coming to terms with the Hul’qumi’num territory's colonial history and geography, something that the current treaty process actively avoids, plus the crafting of a treaty agreement that allows for a more equal sharing of the burden that colonialism has created in this place. More particularly, meaningful reconciliation will require a fuller recognition of Aboriginal title and rights across the breadth of the territory and a commitment to meaningful compensation of Hul’qumi’num Peoples for the wrongful taking of their lands.

The international investment regime is probably the most controversial area of international law today. This article argues that looking at the interpretation of foreign investor rights can help us to better understand this regime and the challenges it poses to states and local actors. Relying on property and contract law theory, this article shows that the arbitral interpretation of foreign investor rights privileges wealth maximization over propriety. This leads arbitrators to draw on particular theories of property and contractual reliance. The analysis of these interpretative moves brings to the front crucial normative and distributive implications of the international investment regime.

The start of the twenty-first century is marked by new levels of globalization, environmental degradation, and social conflict that are endangering the cultural landscapes and agrarian heritage of rural areas. In the wake of these threats, heritage professionals are imagining new, holistic models for shared cultural and natural heritage protection that support active community engagement around issues of cultural identity, material and ecological sustainability, and shared ethical values. Agricultural land conservation is fertile terrain in which to theorize how heritage protection can contribute to the mobilization of social cohesion to restore a balanced human ecology. Agrarian land tenure challenges heritage advocates to bridge the conventional binary of nature/culture that has divided heritage resource protection strategies and to support the protection of working, populated cultural landscapes. Over the past 35 years in the United States, a number of agricultural land protection programs have emerged that depend upon a complex web of cooperation among landowners, governments, and private land trusts to purchase development rights on farmland. I propose that such programs are both symptoms of and coping strategies for broader processes of socio-economic alienation. This paper focuses on a New England case study to explore the potential for agricultural land protection as a framework for shared heritage protection. Based on the results and research connected with this case study, I offer a theoretical and ethical framework of heritage protection as a culturally mediated discursive practice of community-building—one that references the past in order to intervene in present alienating processes and secure a recognizable future.

This article examines the World Bank's attempts to frame the relationship between states, markets, and citizens through its urban assistance programmes during the 1970s and 1980s. Drawing on internal memoranda, mission reports, and staff reviews, this study traces the bank's arguments about the ideal role of the state in housing and service provision. Over this period, the World Bank encouraged governments to withdraw from providing public housing directly and to act instead as an ‘enabler’ of market forces, with lasting economic and political consequences. The article concludes with a focus on South Africa in the early 1990s, when the World Bank (after two decades of practice in promoting privatised land and housing markets) counselled the African National Congress on its post-apartheid policies. In the years since, these policies have resulted in explosive confrontations with civil-society activists who remain committed to alternative visions of the role of the state in housing and service provision.

For centuries, transferring ownership of land under common law was a slow, complex process requiring the construction of a chain of paper deeds evidencing multiple decades of prior possession. In 1858, colonist Robert Torrens developed a new system for the transfer of land in South Australia, where the land was understood by colonial powers as 'new' and without history. With the intention of making land a liquid asset, Torrens' system of title registration shifted the legal basis of title from a history of prior possession to a singular act of registration. Analysing the structure and effects of title registration, engaging with interdisciplinary work on time, and taking H.G Wells' iconic time travel novella as a point of departure, I argue that title registries can usefully be understood as time machines. Like the machine H.G Wells imagined, title registries use fiction to facilitate fantastical journeys in which the subject is radically temporally dislocated from the material constraints of history. As with time machines, it tends to be a transcendental white male subject who is most likely to survive this dislocation. While based on fiction, the impacts of title registries are very much real, facilitating humanity's arrival at racist, dystopic landscapes in the here and now.

The Article analyzes the notion of legal " thinghood " in the context of the person–thing bifurcation. In legal scholarship, there are numerous assumptions pertaining to this definition that are often not spelled out. In addition, one's chosen definition of " thing " is often simply taken to be the correct one. The Article scrutinizes these assumptions and definitions. First, a brief history of the bifurcation is offered. Second, three possible definitions of " legal thing " are examined: Things as nonpersons, things as rights and duties, and things as property. The first two definitions are rejected as not being very interesting or serving any heuristic function. Conversely, understanding legal things as property is meaningful, useful, and helps to understand what it means to say that animals are legally things. Defining things as property has certain rather important implications, which are analyzed at the end of the Article. For instance, not everything needs to be either a person or a thing: The historical institution of outlawry involved treating individuals neither as legal persons nor as legal things. One must conclude that the person–thing bifurcation is less fundamental than is often assumed.

In colonial America, land acquired new liquidity when it became liable for debts. Though English property law maintained a firm distinction between land and chattel for centuries, in the American colonies, the boundary between the categories of real and personal property began to disintegrate. There, the novelty of easy foreclosure and consequent easy alienation of land made it possible for colonists to obtain credit, using land as a security. However, scholars have neglected the first instances in which a newly unconstrained practice of mortgage foreclosure appeared—the transactions through which colonists acquired land from indigenous people in the first place. In this article, I explore these early transactions for land, which took place across fundamental differences between colonists’ and native communities’ conceptions of money, land, and exchange itself. I describe how difference and dependence propelled the growth of the early American contact economy to make land into real estate, or the fungible commodity on the speculative market that it remains today.

This article continues the presentation of my work on legal history, related to the dichotomy between the "normative" and the "processual" approach, first formulated in the late 1970s. A relatively late development of that approach was a return to the question of the role and importance of norms—or, as their formalized subset, rules—in light of the significance of "process." This article presents a case study of norms as themselves a part of the legal process: norms are invoked, by the parties and others, as part of the complex behavior comprising a legal transaction or dispute. The approach is closely indebted to the work of John Comaroff, Simon Roberts, and Stephen D. White. This case study traces the invocation, use—and the ambiguities—of the formal distinction between inheritance ("patrimony") and acquisition, present in Polish land law, as a factor in the security and finality of land transfer.

Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces, to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this "tragedy" unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of "regulatory slippage"-when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry, and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.

This article analyses the temporal effects of title registration and their relationship to race. It traces the move away from the retrospection of pre-registry common law conveyancing and toward the dynamic, future-oriented Torrens title registration system. The Torrens system, developed in early colonial Australia, enabled the production of 'clean', fresh titles that were independent of their predecessors. Through a process praised by legal commentators for 'curing' titles of their pasts, this system produces inde-feasible titles behind its distinctive 'curtain' and 'mirror', which function similarly to magi-cians' smoke and mirrors by blocking particular realities from view. In the case of title registries , those realities are particular histories of and relationships with land, which will not be protected by property law and are thus made precarious. Building on interdisciplinary work which theorises time as a social tool, I argue that Torrens title registration produces a temporal order which enables land market coordination by rendering some relationships with land temporary and making others indefeasible. This ordering of relationships with

This paper takes a close look at some of the main tenets set out in the Department of Rural Development and Land Reform's Green Paper on Land Reform of 2011, specifically those that have a bearing on the creation of a new framework for land law. The purpose is to advance some suggestions as to how new statutory interventions can avoid being contested for unconstitutionality. The analysis focuses on the Green Paper's notion of land as a "national asset", questioning the meaning and implications of such a notion against the debate about nationalisation of important resources. In this context, the paper is critical of the perceived tendency to introduce reforms for the mere sake of political expediency. The guidelines for state interventions with property rights that would pass constitutional muster are deduced from (mainly) the decision of First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC).

The Indian Treasure Trove Act of 1878 is understood as a landmark legislative victory in the preservation of South Asian material pasts. This paper presents a detailed archival history recounting how archaeologists themselves were crucial to the promulgation of the Act and the authors of its specific provisions. It demonstrates how arguments for the reform of royal prerogative into an instrument for the discipline were born in mid-nineteenth-century British debates, where archaeologists' attempts for a similar statutory change in property laws had been frustrated. Centuries-long tensions in common law definitions and their governance of treasure are demonstrated to be crucial to how we may better understand the new 'policy' of the colonial law and its operation. To do so, the paper reviews select cases and presents an evaluation of the archaeological justice of the rule of this law. It asks why our critical historiography has remained insensible to the victims of this law-archaeology's counter-publics-who have been routinely incarcerated and punished in the name of the greater archaeological common good. Through these examinations, the paper reflects upon the enduring sensibilities and commitments that are involved in continuing to take treasures from others.

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Richard Epstein's paper' addresses a number of interesting and important ways that time is woven into the law. One way is through a rule of first possession, 2 whereby priority of possession establishes priority of legal title. Epstein notes many apparently attractive features of first possession, but one can argue that the attractions are illusory. In this paper I address the doctrine's flaws.