Academic journal article Melbourne University Law Review

Pushing the Envelope of Proprietary Interests: The Nadir of the Numerus Clausus Principle?

Academic journal article Melbourne University Law Review

Pushing the Envelope of Proprietary Interests: The Nadir of the Numerus Clausus Principle?

Article excerpt


I    Introduction
II   The Nature of and Justification for Numerus Clausus
III  Purpose and Justification for Numerus Clausus
IV   Common Law Developments Relevant to Numerus Clausus
V    Parking Easements
VI   Impact of Statutory Provisions
VII  Risks with Statutory Reforms
VIII Democratic and Deliberative Governance
IX   Numerus Clausus and Personal Property
X    Influence of New Technology
XI   Climate Change
XII  Conclusion

I Introduction

Property law may seem for some to be like the never changing law of the Medes and Persians, (1) but the concept of what property is, how we describe it, and what types of instruments may be appropriately created as property interests, continues to develop. (2) The stability in property law reflects to some extent the influence of the numerus clausus principle, or 'closed list rule', that has jealously guarded entry by new interests to the status of property interests unless they complied with specified criteria. Edgeworth describes this 'metaprinciple' as follows:

   Conventionally described as 'the numerus clausus principle'--in
   English, the 'closed list' principle--it expresses the stringency
   of the common law's approach to property rights, particularly over
   land. In essence, the principle holds that landowners are not at
   liberty to customise land rights, in the sense of reworking them in
   an entirely novel way to suit their particular individual needs and
   circumstances. Rather, any new rights must fit within firmly
   established pigeonholes, of which the law permits only a small and
   finite number. The principle applies regardless of the terms of any
   agreement that parties might reach for the purpose of creating such
   an interest, so it is irrelevant that a specific contractual
   arrangement to create a wholly novel interest might be free and
   fair. (3)

Despite the conservative influence provided by this principle, this article argues that the complexity of our increasingly globalised world, global issues like climate change and technological advances will promote significant change in property law concepts. (4) The ability of property law to develop and change is significant as it 'constitutes one of the tools humans use to shape our landscapes' which in turn leads to new forms of property law. (5) Some changes may be influenced by the political and democratic process behind statutory change along with the traditional developments in the common law based upon the influence of social change. This article will deal with some of the changes in the conception of the nature of property law in recent years, it will analyse some of the influences at the basis of those developments and what might be the future direction for developments in property law. As the envelope of proprietary interests is pushed it may deliver new dimensions about what property means and its significance for an owner of a property interest.

II The Nature of and Justification for Numerus Clausus

The numerus clausus principle is a fundamental concept, reflected almost universally in both common and civil law jurisdictions, with its origins in Roman law and in feudal and post-feudal times. (6) It has been described from a realist perspective as a principle

   which limits property to some set of identifiable and standardized
   forms, is understood as a means for facilitating stable, and thus
   necessarily a limited number of, categories of human interaction.
   The numerus clausus principle, in other words, sustains the
   institutions of property as intermediary social constructs though
   which law interacts with--reflects and shapes--our social
   values. (7)

Merrill and Smith justify the numerus clausus principle on the basis it reduces the economic costs of determining the attributes of property rights. (8) It is rarely expressly described in common law case law, and until recent years has attracted limited comment. …

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