South Pacific Property Law

Sue Farran, Donald Paterson

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135339029
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Encompassing the legal systems of over a dozen independent countries, the authors of this book bring together a wealth of diverse sources to present a coherent picture of the law of property as it exists today, and offer some thoughts on the challenges and legal difficulties facing the region.

CHAPTER 1
WHAT IS PROPERTY LAW?

INTRODUCTION

Property law determines, shapes and controls interests in property or proprietary interests. In island countries of the South Pacific, property law is influenced by ideas and structures introduced through the common law of England (which is the basis of the legal systems found in the jurisdictions of islands of the South Pacific being considered here), customary law, indigenous ideas relating to property, and international law. As with any legal system, those in the South Pacific region are also influenced by the local social and economic contexts of the law, especially the degree of industrialised and urban development in the jurisdiction under consideration and the characteristics of local geography and resources. In this chapter, a number of topics and ideas will be referred to which will be considered in greater detail elsewhere in this book.

DEFINING PROPERTY

1.1 PROPERTY AS THINGS

One approach to the study of property law is to regard it as the law relating to things. The justification for this is that the nature or characteristics of different things are regulated by different laws. For example, land and anything deemed to be land, such as houses attached to the land, or rights of way over the land, are governed by particular sets of rules which are different from the rules which apply to things which are movable, such as chattels or goods. The classification of things into different categories is a feature of all legal systems. The main categories in English common law are ‘real property’ (land) and ‘personal property’ (everything apart from land). Within both categories are things which have physical substance and are ‘corporeal’, and those which do not, which are ‘incorporeal’.¹ So a house is corporeal but a right of way over land is incorporeal; similarly, a picture is corporeal but the right to royalties from a novel is incorporeal. If a thing cannot be classified then it may not be regarded as property, or may be incapable of being the subject matter of property interests.

It is important to note that the types of things which are capable of being regarded as property change over time to reflect social, economic and legal developments. For example, in island countries of the South Pacific, prior to contact with Europeans, people had very little in the way of corporeal property other than land. Traders, whalers and planters all brought with them different forms of goods and chattels, and this process has continued so that today a great variety of things are found, including many new forms of property such as website domain names, air bands and logo designs. Human inventiveness continues to devise new things of economic value, and as this happens the law responds by enlarging the legal framework to provide protective and remedial mechanisms.

There are also some property and forms of interests in property that exist in the South Pacific region which may take on special significance because of their cultural or social context, with which readers from other societies may be unfamiliar. Some of these things may create challenges for Western constructions of property rights and do not fall neatly within recognised categories. For example, in many Melanesian countries, magic formulas for medicinal or similar purposes and custom dances were and are regarded as property by indigenous people, whereas more recent residents in the country who come from different cultural backgrounds would not so regard them. Similarly, chiefly titles are, in most island countries of the South Pacific, regarded as forms of property by indigenous people, whereas they would not commonly be so regarded by other people in other countries.

The classification of things into different categories is a useful tool. In English common law, the distinction between different forms of property has its origins in the procedures which needed to be followed to claim any rights in relation to the thing, or to deny any liabilities. In particular, claims to rights relating to land were pursued differently from those to other forms of property. Legal and equitable rights were also treated differently, and in different courts, until the end of the 19th century. Although these procedural distinctions are now less significant than they were, partly because of the merger of the courts of law and equity, and because of greater recognition of many forms of property, the historical legacy is still relevant for many of the formalities for transfer of different types of property and for the remedies available when a property interest has been infringed. In island countries of the South Pacific, further distinctions are found where certain types of property, particularly land, are governed by customary law, and where they are governed by introduced law. Also, in some cases, especially in the region of the South Pacific, the nature of the property determines the forum for dispute resolution. This is particularly so in the case of land and titles, where specialist courts exist to which such matters must be referred.

1.2 PROPERTY AS RIGHTS

An alternative way of looking at property law is to focus on the relationship between people and things. The basis for this approach is that property law is really about claiming, resisting or exerting rights to things against other people.² If there is no competition for things then there is no need for any legal framework. It is only when, for example, two people claim rights over the same property and a dispute arises that there is a need for a legal solution, unless they are to resort solely to self-help. Property law thus develops in response to competing claims to resources and the commercialisation of things. Property law confers rights on those claiming interests in a thing to seek a remedy against others who would infringe those rights in some way. Property law also develops to facilitate and enlarge the range of transactions that can take place regarding things. In this respect, property law brings together many areas of law such as contract, torts, company law, commercial law, the law of equity and trusts, criminal law and even constitutional law. It is also necessary to consider the application of the common law of England, principles of equity, introduced and regional legislation and customary law.

One of the difficulties with the approach which looks at property as rights in the South Pacific region is that in English common law, the notion of property as rights is seen as the relationship between the individual – or legal person – and the thing. Property, in the sense of rights, is seen as ‘the right to exclusive ownership and control of a specified object’.³ Property law is therefore primarily concerned with private property. However, in the South Pacific region, individual rights are historically less common than communal rights.⁴ Consequently, any assertion by one person against another of rights to property may need to be treated differently. While individual rights are rarely absolute, this is even more likely to be the case where rights cannot be owned or claimed individually. This is not to say that individual rights to property are not recognised at all in island countries of the South Pacific. Indeed they are, and as the South Pacific region develops economically and lifestyles change, there is likely to be an increasing shift towards individual property ownership, particularly as regards goods and chattels.⁵

If property law is regarded as being concerned with property rights then the nature of the thing, or the subject matter of the right, is less important, although there may still be some procedural distinctions. Ownership of land and ownership of a car are both forms of ownership that will give rise to certain rights and liabilities. However, the nature of the property may determine certain formalities that have to be complied with for certain legal transactions and the nature of the legal interest will determine the extent to which rights can be enforced against others, transferred to others or acquired by others. The nature of the property or the type of interest may also, as indicated above, determine the forum for the enforcement of such rights.

The possible rights that can be exercised over things range from absolute beneficial ownership, to temporary use or detention. To complicate matters, property rights may be those recognised in common law or equity and therefore legal or equitable, or – certainly in island countries of the South Pacific – they may also be determined by customary law. Some rights will be shaped and governed by statute – either introduced or national – but many rights will have been developed through case law. Some rights will have been developed entirely through custom and oral tradition, and there may be very little written evidence to support the existence of such rights. When considering property as rights, it is also important to bear in mind that property rights may be rights to the thing itself, or rights against people in regard to the thing. The former are known as real rights or rights in rem, the latter as personal rights or rights in personam.

In this book, as indicated above, the term ‘property’ will be used to mean the thing – corporeal or incorporeal – which is the subject of rights of ownership, possession, control and use. In doing so, it will be recognised that the thing that is property need not be a physical, corporeal or tangible object, but may be something that is intangible or incorporeal, and that the rights or interests may be of different kinds.

1.2.1 Rights in corporeal things

Corporeal things – that is, things which have form and substance and are physical in the ordinary sense of the word – include land and personal property or ‘chattels’, more commonly referred to as goods.⁶ The category of personal property can be further divided into corporeal things – historically known as choses in possession because they were capable of physical possession, and choses in action, which are incorporeal interests which permit the holder of such an interest to seek the help of the court in enforcing the interest. For example, a debt, or more accurately the right to sue for payment of the money represented by the debt, is a property right, a chose in action. Incorporeal property is dealt with in the next section. The characteristic of ‘corporeal’ property therefore includes land and other property. Possession of corporeal movable property is manifest by physical control. In the case of land, possession or the right to come into possession will be evidenced by occupation, or the right to exclude others from occupation. The law distinguishes between rights to land and rights to other forms of corporeal property. In particular, historically an action to recover land lies against the land itself, while a right to recover personal property lies against the person who has wrongly interfered with the claimant’s property right. A personal action will usually – but not always – be a claim for damages or compensation.⁷ This apparent division as regards remedies is by no means clear-cut, as in some circumstances the right to claim the property will be defeated and the applicant will have to fall back on a personal remedy, such as an action in tort or contract. Moreover, in the case of both land and other tangible property equitable remedies may be sought, in which case, regardless of the nature of the property, their award is discretionary.⁸

Land as corporeal property includes things attached to the land, such as natural things, for example, trees and plants, and also man-made things, for example, houses, sheds, and fences. Indeed, some of the disputes over land relate to the very question of whether a thing is or is not attached to the land so as to become part of it.⁹ In the South Pacific region land may also be defined according to whether it is land held by the Crown or State, whether the land is held under customary tenure, or whether it is held under other forms of tenure.¹⁰ In some cases, the ...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• ACKNOWLEDGMENTS
• TABLE OF CASES
• TABLE OF LEGISLATION
• TABLE OF ABBREVIATIONS
• GLOSSARY OF TERMS
• INTRODUCTION
• CHAPTER 1: WHAT IS PROPERTY LAW?
• CHAPTER 2: OWNERSHIP
• CHAPTER 3: POSSESSION AND OCCUPATION
• CHAPTER 4: SPECIAL INTERESTS IN PROPERTY
• CHAPTER 5: MANAGEMENT OF PROPERTY
• CHAPTER 6: USE AND ENJOYMENT
• CHAPTER 7: ACQUISITION OF PROPERTY
• CHAPTER 8: ALIENATION OF PROPERTY
• CHAPTER 9: PROTECTION OF PROPERTY
• CHAPTER 10: RESOLVING CLAIMS TO PROPERTY
• CHAPTER 11: REMEDIES IN PROPERTY LAW