Great Debates in Land Law

David Cowan, Lorna Fox O'Mahony, Neil Cobb

• Publisher: Red Globe Press
• Year: 2016
• ISBN:
  9781137481665
• Edition: 2
• Topic: Law
• Subtopic: Property Law
• Index: Law

A new and retitled edition of Great Debates in Property Law, this is an engaging introduction to the more advanced writings on property law, designed to provide the additional insights necessary to excel in the study of the subject. Includes new material on e-conveyancing, and the impact of the global financial crisis and austerity politics.

1

THEMES OF PROPERTY

INTRODUCTION

Books on land law sometimes begin with a discussion around the question: what is land? There are various ways these discussions can be structured, incorporating some or all of the following (and, no doubt, others): students are usually served up the ‘bundle of rights’ theory, best exemplified by Honoré’s classic argument that, rather than focus on the thing itself (that is, land), land law is focused on various rights in the thing and responsibilities which derive from one’s ownership of the thing.¹ Students may also be served up the ‘thin air’ argument which broadly, and slightly more contextually, asks us to think about the relationships between people and space. Again, commonly but perhaps with less sophistication, we are enjoined to think about the difference between property and personal rights by reference to the ineffable characteristic of property rights (that they bind third parties). Land law then becomes a definitional struggle between property and the personal.

Our approach in this chapter and in this book is rather different. Rather than take issue with those starting points, we sidestep them because our search is to identify key themes which govern land – the term ‘govern’ is used here to suggest that these key themes offer a certain mentality of property, or at least the way property is used in law. They produce what seem to be truths about land and these truths run deep so that, when they are brought out into the open and questioned, their logic seems, paradoxically, both unassailable but also assailable. We deal with this paradox below.

One such truth is about the value of ownership. Ownership is, in our sense, a governing function of property. It is imbricated in the fabric of liberal governance. It appears in various aphorisms and metaphors about property – owners live in ‘homes’, they are ‘homeowners’, investors, their home is theirs; renters are ‘othered’ – that is, portrayed as ‘not one of us’ – by that narrative, except to the extent that homeownership is assumed to be their ambition.² These aphorisms and metaphors have a striking importance in modern society in England and Wales, and, importantly, are replicated in government policy documents, which emphasize the ‘naturalness’ of homeownership.³ As was suggested in 1976 (and is equally the case today):

Even the use of English language is affected in government statements. ... Owner occupiers have homes, tenants have dwellings. Council tenants have homes when they are being urged to buy them. The use of the emotive word in the one context rather than the other reflects the attitudes of those making the statements.⁴

In this introduction, however, we set out the governing themes of property law, as we see them. These themes are alienation, citizenship, exclusion, rationality, responsibility and space.⁵ They are not insulated from each other or, indeed, the changing social, economic, political and cultural debates that shape property law’s role in governing the use, allocation, acquisition and management of resources in the social world. There is a complex interaction between our themes and that interaction shifts over time. They keep each other in check, and problems are likely to result when one becomes overly dominant, as the ‘property crisis’ that has followed the global financial crisis and austerity politics has demonstrated.⁶ The themes are intimately related with the ways in which property is viewed in society. We explain each in turn below, but, before doing so, there is another important point we need to make about the nature of our subject – indeed, one which goes to its root.

This is where we do take issue with the presentation of our subject. Perhaps because land law is a foundational subject for the professional bodies in the UK, it is somehow regarded by many as ‘bounded’ by the needs of the profession; and property law teaching is often geared to imply that the subject exists to underpin conveyancing practice. For us, by contrast, land law is not the mere starting point for practical conveyancing but a destination subject, playing a crucial and fascinating role in shaping, as well as responding to, contemporary social issues and problems. Land law lives and breathes in society (and vice versa), and it offers us a powerful ‘socio-legal object’ through which to understand law in society.⁷ Indeed, of all areas of law, it is property – particularly as it relates to housing and home – that affects people most consistently and directly; yet, the traditional methodologies of land law scholarship – centred on the status quo of established rights, obligations and duties – tend to marginalize the human ‘subjects’ of the property system.⁸ Rather than focus on the abstract interplay of individual rights and responsibilities in the thing, in this book we approach land law by giving equal attention to people, land and the contexts in which land law governs human access to resources.

The politics of land law and the ways that we think and talk and argue about legal principles, doctrines and decisions vary from one jurisdiction to another. For example, while much of the leading US property scholarship explicitly engages with the individual rights and distributional consequences of particular configura-tions of rules and decisions through appeals to competing values, the dominance of doctrinal methods in English property scholarship – reflecting to some extent the traditions of English judicial decision making in private law – has shaped a purportedly apolitical style of judicial reasoning and scholarly analysis. The separation between ‘law/doctrine’ (viewed as a legitimate space for legal analysis and debate) and ‘politics/policy’ (argued by some to be outside the realm of private law) has significant implications for the way that English scholars think about, debate and reason through ‘property problems’. An important consequence of this is the designation of some aspects of land regulation (for example, the distributional consequences of decisions relating to land, especially for people who have less or no property) as ‘politics’ not ‘law’. This distinction, in turn, strategically locates land inequalities and injustices beyond legal scrutiny. Resisting those inequalities and injustices in law proves both problematic and beyond what seems possible.⁹

AUTOBIOGRAPHICAL NOTES

In this book, we intersperse our analysis with ideas about property from within our own and our friends’ lives to illustrate some of the central themes inherent in property (and scholarship about it), which are discussed above and below. This is the first such note.

Nailing it! A fragment of a housing history

When we bought our first place together in 1997, my then partner (who is a lawyer, but not a property lawyer) remarked that at last she was able to hammer nails into a wall. Up until that point, her housing pathway had been through renting either privately or from friends. Rather than entering into the spirit of that remark, it became chalked up as a possible framework for a paper.

This short biographical note seems important for a number of reasons. First, and most importantly, it speaks of property but in a rather complex and dynamic way. It does not just speak of property, it drips it, or, to put it yet another way, it performs property. This metaphor performs an appropriation of space, making something hers and, indeed, ours; it was designed to perform an ongoing ideal of belonging, making us belong to the space and the space belong to us. It constitutes an affective characteristic of property. The point, if you will forgive the pun, was about creating and performing ‘home’, a private space for us and a site of control.

The simple act to be performed illustrates a further element of property, one which has been said to be of the highest order of property, that is, exclusion. In making it hers and ours, she was also saying that it belonged to us and nobody else. It created a boundary between us and the rest of the world (although, strictly, our mortgage lender could have taken possession of the property at any time, subject to the terms of the agreement between us all, which we didn’t read (!)). Stretching it a bit, her metaphor was also about the value(s) of private property against the social, whether that be the ‘intentional community’, group-based property principles or publicly provided housing (sometimes now described as ‘social housing’).

Next, her comment performed not just property but a deeper sense of tenure. Ownership was counterposed in this comment to (formal and informal) renting relationships. Whether she was correct or not in asserting that she had been unable to hammer a nail in a wall when renting, a matter to be resolved in relational contract, the metaphor was designed to raise ownership to a different level over and above renting.

The dominant values of much land law reasoning (for example, certainty, efficiency, autonomous individualism) are presented as apolitical, neutral, abstracted from the real impacts of legal reasoning on the people for whom the outcome of the case may have major implications,¹⁰ sometimes to the point of life and death. For example, Andre van der Walt has written about cases in South Africa, and elsewhere, in which property rights bump up against other, ‘non-property’ rights, including the right to life, dignity and equality;¹¹ and in Chapter 6 we reflect on the human costs of the erosion of adverse possession under the Land Registration Act 2002, and the criminalization of squatting in England and Wales in 2012. Yet, despite the heady influence of the politics of the day, land law systems are shaped by plural values, which jostle for position and are accorded more or less prominence depending on the question under consideration, the competing interests at stake and the relative power of the actors and institutions involved. To further this discussion, let us now introduce the core themes of this book.

ALIENATION

The first core theme of land law concerns alienation – the flow of property in land within England and Wales through sale and transfer, connecting with the global in a variety of ways, and facilitating and furthering the dominance of the capitalist ideal. Property talks in this way through its monetary (or ‘exchange’) value. Much popular and political conversation about land is about house price deflation or inflation – and, more broadly, about the price we put on property; sometimes, it seems, property is only worthy when it is worth something; measured by its financial – rather than intrinsic – value.

The core of the system of land law in England and Wales was designed to facilitate the flow of money. Consider the following description of the ‘epoch-making’ legislation in the law of property:

The main objects of the 1925 amendments are to assimilate the law of real and personal property whenever practicable, and to simplify and improve the practice of conveyancing, without interfering, more than is essential, with beneficial interests. For many years past the ideal of law reformers has been to enable land to be dealt with as readily as stocks and shares, subject to the necessary modifications inherent to the subject-matter.¹²

That 1925 legislative settlement was primarily designed to achieve this purpose through an agenda which was founded on simplification of the land law and conveyancing systems; simplification was viewed as supporting certainty of title whic...