What is Property?

Much of the first year of law school involves initiating students into the process of learning to "think like a lawyer". Some might say that three years is surely an excessive amount of time to accomplish this task, but we hope that a brief introduction to some of the important concepts in property law will demonstrate that the three years will be time well spent.

The institution of private property (which is only one method by which property can be allocated), is generally thought of as "ownership" of "things", as in "this is my bicycle". In legal terms, however, what is meant by property is not the bicycle itself, but the legally enforceable right of exclusive control over the bicycle. If I say, "this is my bicycle", what this means is that you can't use my bicycle unless I let you. I may decide to lend you my bicycle, or even sell it to you if you offer me enough money, but in any case, the legal system will protect my right of exclusive control. If you take my bicycle without my permission, you will be punished as a criminal who has committed theft. If you promise to buy my bicycle and then ride away without paying me, the legal system will hold you to your word as an enforceable promise, or a contract.

That property is not about things, but about the relationships between those with legal property rights and all others in relation to the subject matter of the right, generally comes as a surprise to first year law students. For many of these students, the words of C.B. Macpherson indicate that critical thinking about everyday concepts is one of the most important analytical skills involved in "thinking like a lawyer":

"Property is not thought to be a right because it is an enforceable claim: it is an enforceable claim because it is thought to be a human right. The legal right must be grounded in a public belief that it is morally right. Property always has to be justified by something more basic; if it is not so justified, it does not long remain an enforceable claim. If it is not justified, it does not remain property."

-C.B. Macpherson

So now you know two concepts from first year property law that are an important part of the process of learning to "think like a lawyer": (1) property is not about things, but the relationship between the holder of property rights and all others; and (2) one of the most important rights of private property is the right to exclude others.

The Case for Private Property: Rationales and Justifications

The legal right to property, as we have just learned, is premised on the societal need to maintain relationships between people in the form of property rights. The legal right is premised on a collective belief as to what is morally desirable. In other words, property is not only a legal relationship, but a political relationship as well, politics being the process by which this social consensus is translated into enforceable rights. Accordingly, a comprehensive understanding of property rights requires an analysis of the various arguments advanced in support of the institution of private property as perhaps the most common method of holding property in the Anglo-Canadian legal system.

Economic Arguments

Economists refer to the concept of "efficiency" in terms of wealth maximization, understood as the market condition in which it is not possible to improve any one person’s position without a reduction in some other person’s welfare. To achieve efficiency within the economic system, we must engage in an optimal level of activity in any given pursuit, taking into account the associated benefits and costs and arriving at a rational allocation of resources accordingly.

A popular economic rationale for private ownership is a parable known as "The Tragedy of the Commons". Assume that several farmers are grazing their cattle on a common pasture. Each farmer earns a given amount of profit from the market value of each cow in his or her own herd, and so naturally it will occur to each farmer that additional cows means additional profit. The common pasture can only support a finite number of cows, however, so in calculating the profit to be gained in increasing the size of the herd, a farmer must take account of the costs in terms of the reduction of available resources for grazing. The difficulty with the nature of the pasture as a common resource is that while an individual farmer receives the entire benefit of the market value of each cow added to his or her own herd, the costs in terms of the loss of available pasture consumed by each additional cow is distributed among all of the farmers. Accordingly, it is to each farmer's advantage to graze as many cattle as possible on this common pasture. Unfortunately, given the finite amount of pasture land available, over-grazing is the inevitable result, leading to the destruction of the pasture and placing the farmers out of business.

Private ownership is viewed as a solution to this tragedy as it forces each individual farmer to assume, or "internalize", the full amount of both the benefits and costs of adding additional cows to his or her own herd. Rather than sharing the pasture as a common resource, each farmer is allocated a given segment that is placed under his exclusive control. If he or she introduces more cows than the allotment can bear, the result is financial ruin for that particular farmer alone. Thus, each farmer is motivated, or has the necessary "incentive", to manage his or her resources effectively.

Economists do acknowledge, however, that market failures can occur, leading to the necessity of legal intervention. Returning to our game of Westernopoly, recall that the Council flats were sitting empty. Can the Council be said to be engaging in the optimal level of rental activity in these circumstances? Has efficiency been achieved, or is it possible to improve the allocation of vacant houses in a manner that benefits both the Council and the people on the waiting list?

Labour and Desert

This rationale views labour as a predicate to private property. It suggests that once labour is combined with a particular property interest, a right in that object results. According to John Locke, a proponent and founder of this theory, each one of us owns our own bodies or persons and therefore our labour. When we work to produce a particular object, by putting some of our ‘selves’ into it through our laborious effort, we attain ownership rights in that particular object. We, in effect, gain rights in the material world, which we create. Therefore, the more one produces, or the more one labours to create, the more one should also increase their own wealth, wealth being measured by rights in property. This theory is founded on the premise that all persons have a natural right and potential to attain rights in property.

Returning once again to our game of Westernopoly, recall that we turned over a Chance card stating that we made repairs upon moving into a vacant house in the redevelopment area. Was this work sufficient to entitle us to property rights in the vacant house?

Personhood

A contemporary justification for the institution of private property is found in the work of Professor Margaret Jane Radin, who first advanced a "personhood" rationale whereby she claimed that a sense of ownership over a certain amount of resources was essential to each person's moral development and innate sense of humanity. Professor Radin has recently expanded this theory to include what she describes as a form of "intuitive" personhood. The value of private property is measured on a very personal and unique level. For example, my favourite red baseball cap retails for about $15, but the fact that it is my favourite cap, weathered and worn in all the right places, makes it uniquely valuable. In the same manner, a home provides more than shelter from the elements. People value security and privacy, and the legal system protects these values in the form of private property, whether we own or rent our homes. A lack of private property of this nature, such as occurs in situations of homelessness or unemployment, will result not only in physical deprivation, but in significant emotional and psychological distress as well. A person affected by these conditions will be unable to engage in common social expressions of self-esteem.

Back to the game! We had turned over a Chance card indicating that our relationship was in trouble due to feelings of insecurity and low self-esteem. Recall as well that the houses in the redevelopment area were worthless to the Council, which considered them "not worthy of repair and not fit to be occupied". To the players in our game, however, these "worthless" houses allowed them to regain their sense of security and self-worth.

Enforcement of Rights in Private Property: Substantive Law

Private property is an enforceable legal right, its foundation evolving from a societal need. In democratic societies, if society as a whole believes that it is desirable to maintain relationships between people in the form of property rights, then enforcement of those rights undoubtedly follows. The state in turn implements substantive law, such as the law of trespass, by which the legal owner of private property is able to exclude others from gaining access.

What is trespass?

In Ontario, the right to exclude others from private property is governed in part by the Trespass to Property Act. Every violation of private property, however minuscule, is a trespass. Unless you have the express permission of the owner, you cannot enter private property, or engage in any activity on private property, without being liable for trespass. If you have committed a trespass, however, one method of avoiding liability is to provide a justification or defence.

Can I avoid liability by arguing the defence of necessity?

Circumstances of urgent necessity, such as grave and imminent risk to life, may sometimes (although not often) excuse conduct which would otherwise be illegal or unlawful. The defence of necessity has generally not been successful in criminal cases: see for example, R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, wherein the accused, two sailors adrift at sea in a lifeboat and starving after 18 days, killed and ate the cabin boy. However, the defence of necessity has been successful in at least one case involving interference with private property rights: see for example, Mouse's Case (1609), 12 Co. rep. 63), wherein a casket belonging to Mouse was thrown overboard to lighten a barge in danger of sinking during a storm. What appears to be significant is the seriousness and imminence of the risk versus the gravity of the illegal or unlawful conduct. If one can prove that it was of necessity that they committed a trespass, then they will have successfully defended the charge.