Thursday, May 3, 2012
Carol Rose has written:
“What is the symbol for property? It is easy to answer that land is that symbol…but why is land – immovable, enduring land – the central symbol for property? Why not, say, water? Water, after all, is in fact the subject of important and valuable property rights, and, indeed, concerns about water can substantially modify the rules about land. If water was our chief symbol of property we might think of property rights - and perhaps other rights – in a quite different way. We might think of rights literally and figuratively as more fluid and less fenced-in; we might think of property entailing less of the awesome blackstonian power of exclusion and more of the qualities of flexibility, reasonableness and moderation, attentiveness to others, and cooperative solutions to common problems. Those qualities are in fact even a part of landed property – as in nuisance law – however little the symbol of landed property may suggest”. (Carol M Rose “Property as the Keystone Right?” (1996) 71 Notre Dame L Rev 329 at 351 – the New Zealand way of referencing!)
We might ask – is Rose’s view of land itself too monolithic a symbol? “Land” means very different things in different contexts and at different times. “Land” includes vast areas of farmland; various types of estates and interests; smaller blocks; and sometimes, buildings. We might pause to reflect that the common example of “land” is a piece of land known as Blackacre. But, why Blackacre? Why not Greenlease or Blueunit? In fact, developments in the law of subdivision and land use, and the widespread development of “common interest communities” mean that Blueunit is – now and in the future – likely to be a far more important area for study than Blackacre.
For what of Blueunit? The bundle of rights attaching to Blueunit will be very different from the bundle of rights attaching to Blackacre. The type of exclusionary rights attaching to Blueunit will be different to those applying to Blackacre. Simple factors such as the proximity of Blueunit A to Blueunit B; the fact that Blueunit A and Blueunit B may share a boundary that is a party wall; the fact that Blueunit A and Blueunit B may have to share payment for repair of a roof of a building which is not part of either of their but of other units within an apartment building; the fact that Blueunit A and Blueunit B may vote together or against each other in their owners’ corporation or body corporate. The owners of units may be neighbours in much more of a sense than the owners of "acres".
Blueunit needs much more attention.