London Borough of Southwark v Williams and Another, London Borough of Southwark v Anderson and Another. UKHL. 1971. P.284 (includes note of page 288). Right to Include; Right to Participate
Facts: Big housing shortage in London. The 2 defendants squatted in vacant houses, which the town council was intending to redevelop. The town council has a waiting list for housing. In occupying the houses, the defendants essentially jumped this queue. Defendants argued necessity. Pleas brought an action in trespass. The squatters are taking good care of the possessed property.
Issue: Are squatters entitled to occupy this property? [Does the town council have the right to exclude them? Does the defence of necessity bar such a right?].
Held: No. Yes. No.
Ratio:
Lord Denning: There is authority for saying that in case of great and imminent danger, in order to preserve life, the law will permit an encroachment on private property. However, the defence of necessity does not apply here. Floodgates problem/slippery slope argument – it should only apply in extreme cases,
Megaw: The issue here is one of policy. Individuals do not have the right in law to take steps to enter the property of the council with the intention and necessary result of defeating the policy which that elected body has decided to be the appropriate policy.
Rule:
The defence of necessity does not apply to squatters unless there is fear of loss of life.
Note: Genetix Snowball case. Court crystallizes the doctrine of necessity in London Borough: The defence of necessity is defined to circumstances where the danger is immediate and obvious and a reasonable person would conclude that there was no alternative to the act of trespass.
Nicholas Blomley, Unsettling the City: Urban Land and the Politics of Property. P289-293 – Private property is relational and threatens collective ownership
This is the story of a major department store, built 100 years ago.
The building used to be located in an upper class part of the city.
Over the years, the social class has moved down.
It is now in the middle of a depressed part of Vancouver.
The owner wants to demolish it and put up a condo high-rise unit.
Local residents fear that this will change the face of the area, bring in affluent people and attract high end shops.
This would result in bringing up property value, forcing them to relocate.
A long an arduous court and legislative battle develops: can the owner be restricted of his right to develop the land.
“The exercise of power entails betrayal and exclusion.”
Local residents argue that they identify with this building, that it is common property, and that the state should fix this situation once and for all since it is the state that is protecting his property rights.
They also argue that they (the local residents) made Woodward what it is. If the owner destroys it, it is he that is taking from the residents.
In the end, the building is torn down.
W activists make two powerful claims about property. First, private property relations are a threat – yet they are relational. Second, private ownership threatens a claim of collective ownership.
Local 1330, United Steel Workers of America v United States Steel Corporation. 1980. Ohio. P294 – Private property claim by non-owners
This case deals with the same theme as the Woodward’s store (above), socio-economic rights. Private property is property taken from the commons, where power and authority is concentrated into a single (or small) group of persons and protected by the state. Value of the private property increases thanks to the contribution of non-owners (here, it is working at the mill). The theme is: tension between private and common property. Should private property be private? Can it be claimed by non-owners?
Facts: 2 old US Steel plants in Mahoney Valley, Ohio shut down for dismantling. They were built at the turn of the century and are no longer competitive with the world steel market. Mahoney Valley counts 3500 residents, dependent on the mill for their livelihood. They argue that the company has a duty to remain open since the residents have worked and contributed to the factory’s success in the past. The union claimed it had a right to purchase the factory against the owner’s will. Issue: Can the residents be excluded from decisions dealing with this private property? [YES] (Can they make a community property claim)? [NO]
Rule: In the US, property rights are constitutionally protected.
Ratio (Edwards, C.J.):
There is no precedent to support the resident’s claim.
The American constitution does not provide any rights to the residents to guarantee employment.
However, it does prohibit the deprivation of property without due process of law.
Notes. P300
Bruce Springsteen’s song Youngstown talks about the Mahoning Valley factories.
GM Oshawa workers go on strike to reverse GM’s decision to shut it down.
J. W. Singer, The Reliance Interest in Property. P303-315
Restating the US Steel dispute in Hohfeldian terms (not that this is important but I for one liked the Hohfeld reading of last year):
Union argued that it had:
A power to purchase the plants.
A right to have the plant not destroyed.
The company argued that it had:
An immunity from having the plant taken away from it involuntarily.
A privilege to do with the plant what it wants.
The judge’s decision reflected their social vision. In this case, the judges asked 2 central questions:
Who owns the plant?
What promises did the company make?
These questions reflect the judge’s vision of the property and market system: property rights are concentrated in an owner and the free market best allocates property rights.
But there are other models that are just as justified as this one.
For one, the legal realist attack undermines this system, describing it as a purely social construct.
The concept of the “owner” doesn’t correspond to reality:
It is fiction, defined by Blackstone.
In the cases of easements, leases, mortgages, co-ownership, trusts, who is the owner? Several parties share legal rights. Any identification with 1 person would be misleading.
The notion of the “owner” serves the purpose of answering a specific question rather than making a bold statement about who has all the sticks.
Corporations are an excellent example. A corporation is an enterprise created by several stakeholders (shareholders, the public, the state, the directors, employees, suppliers, customers) that carries on a business for a purpose. Who is the owner?
The better question is “who has a right to say something about the use or disposition of the property.”
Several theories are proposed:
Property as delegation of sovereign power.
Legal realist view of the world.
Protection of reliance interest:
Past / customary reliance. (Woodwards 289)
Reliance interest of vulnerable parties.
Public trust reliance: trust of current and future use (i.e. the public expects to use public beaches so the state should not sell its land).
Public rights access to private property: for policy reasons (i.e. disabled people should be able to access McGill University’s classes).
Rules around certain businesses: shopping malls.
A 3rd restatement of property based on reliance interest is presented:
Owners are not free to unconditionally revoke access to non-owners. Non-owners with reliance may be granted partial or total immunity from having their access revoked.
Mutual dependence, creating joint efforts legitimize interests of the more vulnerable.
Property rights are redistributed from owners to non-owners to protect vulnerable persons, distribute resources and fulfill the needs of more vulnerable persons.
Gosselin_v_Quebec,_SCC,_2002._P316_–_No_property_right_to_social_assistance.___Facts'>Gosselin v Quebec, SCC, 2002. P316 – No property right to social assistance.
Facts: In ’84, Quebec creates a new social assistance program affecting citizens under 30. They will receive 1/3rd of the benefit allocated to persons over 30 unless they participate in one of 3 education or work experience programs. Gosselin argues that this violates ss 7 (right to security in this case) & 15(1) (equality rights) of the Charter and s45 of the Quebec Charter.
Issue: Is the Right to social assistance a property/Charter claim? [NO]
Rule: Both Charters are full of buzzwords but lack sufficient specificity to pin down the state to a positive duty to provide formal equality in its assistance programs (what am I missing? What is this doing in 1: common law and 2: property?)
Ratio (McLachlin, C.J.):
S7 does not encompass economic rights.
S7 does not impose a positive obligation on the state to sustain life, liberty or security that extends to its social assistance programs since it is a compensation program not a basic assistance program.
S45 Quebec Charter places a duty on the state to provide an acceptable standard of living however, it is not prescriptive in terms of the required adequacy of the program. The language is intentionally vague and does not pin down the state to a specific standard or undertaking.
S11 Charter is not dealt with.
Notes
Gosselin: Justice Arbour in dissent: S. 7 imposes not only negative rights of non-interference but also positive obligations on the state to act. S. 7, like others in the Charter (s. 3, s. 11(b,d,f), s. 14, s. 23) also supports the existence of positive rights.
The courts can enforce rights to basic means of subsistence without being drawn out of their proper judicial role and into the realm of policy:
This is not an issue of resource allocation: it is a question about what kind of claims an individual can assert against a state
The role of the courts under the Charter is to adjudicate rights-based claims
The SCC can answer to the question whether the Charter right exists without addressing how much expenditure by the state is necessary to secure the right.
State Regulation
Bell: Though the by-law was struck as invalid, judge does not think that the City exceeded the authority. City Act permits to fix standards of fitness for human habitation to which all dwellings must conform. There are valid public concerns in this case too: many weeds are noxious; weeds can be a potential fire hazard: Property is relational (MacPherson).
Right to be Included
Reality of Property Law
Piper’s Dream
London Bourough of Southwark v. Williams
If homelessness is allowed as a defence to trespass no one’s house would be safe. Necessity needs to be limFited or else property won’t work anymore.
In cases of imminent danger and in order to preserve life, law should allow people to adversely possess property that is technically “private” but which is really abandoned.
Squatters should be given greater possibility to be included in property possibilities.
Woodworths Situation
(Cf Occupancy – Tully)
Private property inevitably leads to betrayal and exclusion because the individual owner will do what’s best for themselves, not for the community.
Community Property should be recognized because it is the community that in fact makes the private property have value.
There is no authority for recognizing a union’s right in the property of the employer due to a lengthy, long-established relationship between the employer and the employees, and this court refused to extend this right citing that the legislature was the appropriate branch of government to recognize such an extension in traditional views of property rights
-US Steel does not have a legal obligation to sell the plants to the union.
Community Property should be recognized because of the relational nature of this factory, the factory created the community and the community enabled the factory to produce. The community through their labour made the factory “property” but don’t have any say in it remaining there.
Lambros J. does recognize the power of judges to recognize or create a new property right when social conditions and values have changed to warrant it. But does not do here.
Raises possibility that relationships could create property rights through judicial discretion.
Singer’s argument
-Property law claims there is a single owner but control of the resources are in fact divided up so it doesn’t make sense to talk of a single owner.
-Argues for property law as the fundamental conflict between the alienability principle and the reliance principle.
-Better paradigm is to focus on industrial relations between and among the thousands of people who participate in the ongoing affairs of the business. It is a network of ongoing relationships.
Goseelin v. Quebec
Re-Cap
Right to Property is not absolute. When does a person have to open up their property to others? Depends on the nature of property and the extend to which the public has access to it.
Under what circumstances does the state have to compensate for taking property?
What interests are implicated in calling gov’t benefits a property right?
Why is the word property to powerful? What ‘work’ is it doing?
A right to property is not protected by the Charter how is it protected then?
When will a court protect a reliance interest? How is that not a merely a community interest?
Consider the reasoning in Gosselin as an example of persuasion and argument.
Argument that gov’t entitlement form some form of property rights
