Using the Property Wheel, this explains the entire course.
Property:
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What Rights?
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What things?
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In relation to whom?
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Why Rights?
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How to get Rights?
Most property law exists from court decisions and is not statutory.
What is value? It is relational and relative to a certain people.
Does the word “owner” mean anything in the Cml Law?
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Social/cultural meaning, but not legal meaning. There is no legal definition of “owner” in Cml Law.
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Word “owner” is used in relation to other people and no meaning on its own.
What does the word owner mean?
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The person with most rights in the bundle of sticks.
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An enforceable claim, protected…by the state.
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The right to exclude others.
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The right to control, use, transfer and dispose.
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Owning something of value, but value is subjective to the person.
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Full-blooded owner v. Interest Claim.
Singer:
(a) Property is a "set of rules". MacPherson. Property does not consist of the "things" or resources which are the objects of property law, but in the rules which govern how those resources are to be used.
(b) Property rules govern "relations among people". Hutterite; rules allocate rights in things to and among people. These property entitlements are never absolute. The rules vary depending on the thing being regulated, the type of entitlement (see "c" below), and the relationship involved.
(c) Property rules govern "control, use and transfer". Harrison v Carswell; Merrill; Property rules therefore deal with various kinds of entitlements. Principally they involve rights to use (and limits on those rights), rights to exclude others from using, and rights to transfer.
(d) Property rules concern "valued resources". MacPherson; Property law concerns itself with which things should be the subject of property.
(**) Property is not absolute, property rules are not static, they vary according to time, place, and context.
1st Questions
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2nd Questions
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Nature of thing (what is the thing)
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Person against whom it is claimed
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Actions of the owner (what has the owner done to look like an owner)
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Nature of the acquisition; and
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Type of rights that make sense given all these circumstances. (Summary)
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Right to exclude?
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What is an owner (absolute ownership)?
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When does someone stop being an owner?
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When should reliance interest be protected?
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What are limits of CMN property?
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Distributional outcomes result from CMN property rules?
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What actions/behaviours lead to prop ownership?
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Which justifications are more meaningful for what kinds of property?
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Does “property” mean anything?
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Consequences of calling something property?
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How does the nature of a thing change its ownership?
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Introduction - Property is the set of rules that govern the relations among people; 2
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Property is the set of rules that govern the relations among people regarding the control, use and transfer of valued resources.
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Property rules vary depending on time/place/context. Not things, rules.
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Allocation of rights (right, duties, liabilities, powers, immunities)
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Governs the control, use and transfer of valued resources (scarce things)
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See Singer 4 constituent parts of property above
The nomenclature of Property in the Common Law
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Real property (ie. land)
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Incorporeal hereditament
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Incorporeal: cannot be sense
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Hereditament: can be heritable, bequeathable
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Easement (right of way, a privilege to use something that is not your own)
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Covenant (a binding agreement)
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Interests less than title
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Rent; Franchises; Pension; Annuity
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Corporeal hereditament:
2. Personal property (anything other than land)
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Chose in possession (tangibles): an item of tangible personal property that can be physically possessed and transferred.
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Chose in action (intangible): a right: to sue, an intangible personal property right for example, the right to enforce the payment of a debt, to receive money by way of damages under contract.
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Legal or equitable(fair) rights
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C. B. Macpherson, The meaning of Property (1978) p. 4: Property is rights in things or to things – Straw Man versions of other property; Left Wing; property is a right not a thing
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Purpose of property is a man-made institution that creates and maintains certain relationship between people – it serves our needs by defining what the institution is, or to meet the needs of classes of people you set up and shape the institution (social order). It is also a “concept,” an abstract idea.
Macpherson’s Thesis: Property is rights and NOT things.
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Prevents the need to carry around all your possessions
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Property is not static and changes with societal factors.
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Property is not absolute
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Property comes with duties and obligations.
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Property definition is not clear. It is not clear what “Common Property” is.
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Owner is not a meaningful term.
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A right to an enforceable claim enforced by society or the state, custom or law – only the state is large enough to enforce this right.
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A right to a benefit of something
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Why? Presumed to be a natural right, a necessary human right (humans like to own/collect things)
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Types of property:
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Private:
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Common
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Right not to be excluded (set up by the state)
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Each member of society has an enforceable claim to use them.
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Right to use
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Can be held by a natural person only
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It is an individual right
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State both creates and enforces them (see Walter case).
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State (Piper does not like his definition)
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State acts as a corporation, as it is controlled by those who command the state and in Canada all property reverts to the crown, so ultimate tenure is held by them. Therefore all property is common or public property controlled by the state – no such thing a private property!
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Can therefore only be held by an artificial person
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Airwaves, railways, airlines
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It is a corporate right to exclude (common and private)
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Private
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Common
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State
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Natural person
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Y
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Y
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N
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Artificial person - Corporat
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Y
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N
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Y
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Straw Man Arguments
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Historical reason of why property is rights not things – this leads to a gap between traditional understanding of property (see below) and his “rights based” approach.
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Money was scarce so people traded goods and services for rights to use property in a certain specified way.
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These rights were not freely disposable (they were personal in nature)
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There are also rights in revenue, for example: tax/farming rights.
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Changes with capitalism (especially 20th century) property became ‘things’ in common parlance. Critique: Argument is based upon English version of history, and utmost importance upon “lefty” version of historical progression.
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Rights became more absolute Property seen as a right to revenue rather than a right in a thing.
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Parcels of land become marketable commodities – see above, this requires a state-licensing authority allowing a right to income.
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State protection of the capitalist ideology; thus land became property
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A return to property as rights not things
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The corporation is the dominant person in society today
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The corporation provides a right to a revenue to its shareholders
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Thus property is once again seen as a right rather than an object
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Property is not always private
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Mixed systems where land is common and produce is private
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Or land is private and produce is common
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Property was justified by St. Thomas Aquinas (God is all, knows all, man is built in his image and endowed with reason, man is good so his laws are good. Absence of law yields anarchy).
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Common property is useful, it provides a sense of community
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The modern property right is an absolute right: use and dispose (feudal was only to use not to dispose of, and the use was tied to a social function)
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Common property: air, water.
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Bradley Bryan, Property as Ontology (2000) p.13– ABORIGINAL; IMPORTANCE OF RELATIONSHIPS
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Okanagan people of central B.C.’s version of property – Land is all about relationships with one another and with nature itself. LOOK AT MACPHERSON’S RELATIONSHIPS.
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Sumix: Relations in society which everyone understood by the nature of their relationship to one another and nature. Property then about relationships. Relationship between nature and land and themselves.
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Snams: Nature helper, the thing with which the Okanagan people had a relationship that represents nature.
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Writing to PM Laurier, Okanagan use Euro language like “boundaries” and “ranch” to explain the use of their common property.
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Critique: Romanticized version of aboriginals, which author critiques at the beginning of the article, but this version may be true.
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Walter v. Attorney General of Alberta, 1969, SCC, p15; COMMUNITY V. PRIVATE PROPERTY
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Facts: Fletchers want to sell their land to the Hutterians who also want to buy other land in Alta. H are a community. Alta law prohibits the H community from purchasing land in Alta. H claim the Alta law is ultra vires Alta because it infringes on s. 91(27) of constitution CA 67.
Issue: Is the Alta law UV CA 67? (CAN THE GOV’T LIMIT THE HOLDING OF COMMON PROPERTY?)
Holding: (Martland J.) No. (YES)
Ratio: It is a function of a provincial legislature to enact those laws which govern the holding of land within the boundaries of that province. The pith and substance of the law is the governing of land rather than affect freedom of religion (s. 9) since H’s are still able to practice their religion.
Important point to draw out of case :
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Example of common (communal) property – no member has individual or personal ownership, but there may be a few who are “trustees” or leaders. Each member shares in the distribution of profits or benefits according to his needs or in equal measure with his fellow members and; land held by a member of the colony by personal ownership or right to ownership or under a lease, if the land is used in conjunction with or as part of other land held by the colony (ie. additional land held by a member if it is used like the communal property).
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Regionalism and religion in defining property: Property means different things to different people in different areas of Canada, not homogenous!
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Colony: means a number of persons who hold land as communal property.
Link to aboriginal ideas above, and how state notions of property will succeed where other notions did not. Also Macpherson: state rules beat everyone!
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Thomas W. Merrill, Property and the Right to Exclude, p. 20. RIGHT TO EXCLUDE IS THE NECESSARY AND SUFFICIENT condition to identify the existance property. RIGHT WING; CONTRAST WITH MACPHERSON
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Merril rationalizes that the condition sine qua non of property (a necessary and sufficient condition) is the right to exclude others. “Give someone the right to exclude others from a valued resource, and you give them property. Deny someone the exclusion right and they do not have property.” It is the necessary and sufficient definition for property
**WHEN DO WE SAY SOMEONE IS AN OWNER & WHEN DO WE SAY SOMEONE HAS AN INTEREST? (right to exclude or not)
Property is not a statement of fact but of norms
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Single-variable essentialism:
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The right to exclude is the sole and despotic dominion over a thing.
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Keep off X unless you have my permission, which I may grant or withhold
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Signed: private citizen
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Endorsed: the state
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The free use, enjoyment and disposal of all his acquisitions, without any control other than the laws of the state.
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Multi-variable version of essentialism
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The right to exclude is one of several rights that are required to impress property.
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Akin to Honoré’s ‘standard incidents of ownership’
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Full blooded ownership v half-ownership or partial ownership
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Right to possess/right to use/to manage/to the income/to security, etc…
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Nominalism
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No fixed meaning.
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Property is a vessel that a given tradition will fill up with its peculiar values and beliefs.
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Relevance: acknowledgement of the fact that the universe is filled with things called property, which is a pure social construct.
Arguments put forward supporting the claim that excludability is the necessary and sufficient condition of property (note: points 2 and 3 are not convincing):
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LOGICAL: The author suggests that starting with the right to exclude, other rights may be derived. For example, the right to exclude everyone else implies the right to use the property, the right to grant access for a particular use, and transmit property (include someone then exclude yourself).
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HISTORICAL reasons: the right to exclude is found in primitive societies, therefore it is normative.
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In mature legal systems, the right to exclude is a widespread property right. If you don’t have the right to exclude you do not have property.
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Harrison v Carswell, 1975, SCC, p. 30. The owner has the right to exclude others.
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Facts: An employee peacefully pickets in a shopping center. She is asked by its owner to move away from the premises. He threatens to file complaint under the Petty Trespass Act (PTA) if she stays.
Issue: What are the rights to exclude and does a shopping center owner have the right to exclude people from his public mall? [YES]
Holding: The owner of a shopping center has the right to control access to his property.
Rule: The owner of a shopping center grants licenses to the public for the use of the premises. The license is revocable by the owner at any time so that certain persons are excluded from making use of his property so long as the owner has not divested his possession of the property.
Note: In general, this case weighs the competing interest of an individual’s rights to peaceful STRIKE and those of owners of property. Dickson claims there is binding precedent whereas Laskin distinguishes with the stated authoritative cases based on facts and the legal question raised.
Ratio (DICKSON):
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Finds Peters is analogous and authoritative.
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The president (P) of the Brampton Labour Council was disallowed by the owner of a shopping center to peacefully picket in the shopping center.
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P was not considered a mere member of the general public.
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The case is analogous because:
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The lease agreement is similar;
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The PTA is similar to the Labour Relations Act referred to and applied in Peters.
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Carswell is an interested party just as P is an interested party. In both cases the owner is not whimsically prohibiting the general public’s access to the shopping center.
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Finds Grosvenor is distinguishable and non authoritative because it is a decision from an Appeal Court.
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Peaceful picketers were allowed to picket on the shopping center premises because the owner had granted easements to many tenants. These easements covered the area where the picketing occurred. Therefore, the shopping center owner was not in possession of the property and did not have the right to exclude others.
Dissent (LASKIN):
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Finds Peters is distinguishable on both facts and law and therefore non-binding.
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On facts: P is boycotting California grapes rather than picketing because of a labour dispute and whether P is a member of the general public.
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On law: The issue in Peters was whether the owner divested himself of possession of the sidewalk such that he cannot claim trespass.
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States that members of the public are privileged visitors whose privilege is revocable only upon:
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Misbehaviour
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For a reason
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Unlawful activity
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Since the employee is peacefully picketing so there is no basis for the owner to revoke the license to enter the premises.
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The owner’s rights do not surpass the employee’s right to peaceful picketing.
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Cites doctrine to support his claim that the premises are available to any kind of peaceful activity by members of the public regardless of the interest served.
Note (p42):
In Committee for the Commonwealth of Canada v Canada, the SCC could not agree on whether individuals had the right to distribute propaganda in State property (Dorval airport). Ultimately, the decision was based on whether the form of expression was compatible with the function of the place and did not interfere with the ordinary working of the airport. She finds that gov’t property has traditionally been “public” or “private”. It is unclear how the right to exclude others compares with the right to free expression on State property as well as private property.
Comments: key distinction is privileged nature of visitors.
Privilege: is not a right, revocable,
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Statements that are not true in Common Law Property:
1)Property is things not rights.
2) The term owner is meaningful
3) Property is private
4) Common Property is held in common
5) Property is static.
6) Property is absolute.
7) Property is just rights.
8) Property is clear
Review: Ch 1 – basic framing questions – deconstruct what we think we know about property.
Propositions:
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Property is right not things;
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Rights are in relations to others and not absolute;
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Owner has no legal meaning, but only colloquial meaning (person with most rights);
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Property includes the right to control, use, transfer, destroy(not an exhaustive list, but Honore attempts transystemic list);
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MacPherson: there are other kinds of property;
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Property may be property b/c it is valued (value may not be merely financial though);
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Common Property is hard to define;
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Common Property is rarely held in common;
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‘Common’ and ‘public’ are sometime used synonymously;
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Common law property is not absolute
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Property is thus historical and contingent Macpherson
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Few definitions in Cml Property Walter v. Attorney General with Hutterites;
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Test in Property are rarely definitive;
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Property rights must be enforceable (usually by the state but can be b/w individuals);
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Merrill: “The right to exclude is a necessary and sufficient characteristic of ownership”; and
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Cml law property is only one way of understanding how property is held.
The Chapter is about novel claims for property Rights. The cases involve courts deciding whether to award property rights in certain things to certain individuals.
MacPherson is correct that “property” is a changing concept.
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