I have just returned from a stimulating couple of days at Bond University on the Gold Coast, which hosted the 12th Australasian Property Law Teachers’ Association Conference. The conference saw a stimulating mix of papers and ongoing discussions amongst the delegates from Australia, New Zealand, Hong Kong, Singapore and the UK.
It is relatively common for people to leave gifts to charity; 7% of wills contain such a legacy. Rarely the focus of policy discussion, testamentary donation is of considerable importance. The sums involved are large; gifts are often given as a percentage of the deceased’s estate. Normally things go smoothly, so that in the great majority of cases, the executor will distribute the gift without any hitch. Even so, where things go wrong, the law is surprisingly hostile to charity. It might allow gifts that have been expressly dedicated to charity to be passed into private hands.
In 2011 Queensland updated its legislation concerning dividing fences disputes, introducing the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘Act’). The Act significantly overhauls the earlier Dividing Fences Act particularly through the introduction of a jurisdiction concerning trees.
Looking through the Act recently, I was noticed that the Queensland Civil and Administrative Tribunal (‘QCAT’) had jurisdiction not only over trees that dropped branches onto neighbours’ land or those which posed a danger to the neighbours. Under s66, QCAT may also make an order relating to ‘interference that is an obstruction of sunlight or a view’. This raises the question of the basis on which such an order may be made. In particular I am interested in whether this creates, by implication, a property right.
The charitable cy-pres doctrine permits the alteration of trust purposes. It is a complex and famously technical area of law. It was described as ‘arcane’ by Lord Diplock, and as ‘metaphysics’ by Lord Neuberger. But it is important. It permits trusts to be changed. It is also a powerful mechanism. Where once weak common law rules inhibited reform, under statute, it has real teeth. Since the enactment of pioneering legislation in the 1960s, it has been possible to reform trusts on the straightforward basis that they are unsuitable or ineffective. That broad and discretionary standard promotes active trust reform.
In a recent post on the Volokh Conspiracy, it was reported that law professors in the US were rebelling against a text book publisher’s new pricing policy.
Under the new approach, dubbed CasebookConnect, students must return the casebook after the class ends. Students receive access to a digital copy of the casebook available from AspenLaw’s website, but they must return the physical book. Meanwhile, students pay full cost, as the price of CasebookConnect is the same as the traditional price of a new physical book.
I have been interested for some time in the limitations of our understanding of property – particularly our understanding of property in land (see here and here for an example). At the heart of this is what I see as a fundamental conflict between the individualism of the notion of dominion over land and broader concerns of ecological and social sustainability.
For lawyers, part of the challenge in explaining the connection between property and sustainability is our tendency immediately to think of sustainability as environmental law. For the lawyer, the difference between environmental law and land law is fundamental: one is public law, the other is private. In this post I will try to outline how I see sustainability as an issue central to how we conceptualise property.
The Modern Studies in Property Law 2014 conference served as an inspiration for the creation of this blog, and allowed for the necessary platform for academics to meet and discuss their current research. This first post serves as a review of the many prevalent themes coming from contemporary property law academic research in recent years.