13 September 2017

Property Law – The Concept Of Property And Its Ridiculous History

Property Law
Land can be defined as any area of three-dimensional space. It is not confined to earth’s surface area and may extend above or below. Cuius est soum eius est usque ad coelum et ad inferos in Latin maxim that governs the rights of the landowner. Basically, this means the person who owns the land, owns it from the heavens above to the centre of the earth.
Of course, over time this has been changed by statute as we now have the common law view. Obviously, if we had this view of Maxim today it would literally open a lot of interpretation such as how wide, height and width etc. If any object flew over such land then this would be considered trespassing of one’s land.
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This, of course, would be ridiculous as to where would it stop. What about building sites where some object may impose at height. Thank goodness that common sense prevailed. 

However, it did not stop a case in which a plaintiff took the defendant to court as the plaintiff accused the defendant of trespass on his land whilst the defendant took photos from an aircraft above the defendant’s property. Basically, the outcome was that the landlord’s right incorporates only height necessary for the ordinary use and enjoyment of the land so common sense prevails.

What about native rights of the indigenous people with regards to property history? In a well-known case in Queensland took the view that a member of a tribe was charged by the magistrate’s court for breaching the 1974 Fauna Conservation Act for using a traditional harpoon to catch two juvenile crocodiles without a permit. This member and the tribe has a connection with the land that existed before the common law and continued as their custom. Did the Native Title Act 1993 contravene the 1974 Fauna Conservation Act? According to s109 of the Constitution, the tribe in question has a right to exercise those rights and interest.
The word property according to Leeson CJ, Kirby and Hayne JJ held (at 264), is often used to refer to something that belongs to another. But the Fauna Act, as elsewhere in the law, ‘property’ does not refer to a thing. It is a description of a legal relationship with a thing. Usually, it is treated as a ‘bundle of rights’. What they are referring to here is property does not always mean full ownership of a thing but rather the degree of power exercised over a resource or land.

Of course, property and indigenous rights have had the fair share of problems in history the Anglo-Saxon point of view was different to the Australian indigenous viewpoint of property and ownership, historically this was not reflected in English law. This is no longer the position since the famous case of Mabo that set a presentence; on native title been recognised by the common law.
It seems the concept of property is tied to the relationship of property and the ownership of it. This implies rights of use, possession, and rights of transfer. It is an ownership that gives the right to enforce laws against the world at large.
If our history is anything to go by we are in for a rocky ride into the future of property and ownership.
It seems that Common Law, on one hand, has improved some situations and others made things more difficult. Who knows what the future holds, but let’s hope that common sense prevails and that future history will learn from the past.
Author: Kathleen Dale, Business Advisor and Founder of Compass Business Advisory.

Further reading:

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