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What is “property law” (or property rights)?
Most people understand property to be a physical item. The definition of property, however, is far broader than something that you can see or hold in your hand. Property is, more precisely, an individual’s rights with regard to something in existence. Property includes all of the commonly understood rights associated with physical or intangible things, such as: the right of possession (to the exclusion of others), the right of use, the right to sell or transfer, or the right to destroy.
- Example: The writer of a book can hold the book in her hands. The book is a form of property. The owner of the copyright possesses the exclusive right to sell or license those rights to third parties for use or production. She also has the ability to prevent others from copying, selling, or licensing that book. The copyright extends far beyond the physical book to include the content within the work. In this sense, it is more of a right to something that has been created, rather than the possession of a physical asset.
Discussion: Try comparing the concept of property (or those rights you possess in something in existence) to any form of ownership interest in property. Is your home or car property? Is your pet property? Is a stock certificate in Apple, Inc. property? Is a patent on a new invention property? Is a secret recipe property? Is an easement on someone else’s land property? Is a membership to a gym property? Is a stream running through your back yard property? Is the server space dedicated to hosting your website a form of property?
- All of these examples are, in fact, examples of property. The point of these examples is to illustrate that property focuses more upon writes than it does the physicality of an item. A good example of the legal system provisions to protect property rights is the tort law regarding land ownership. For example, according to the law in most jurisdictions, a person with the right to own property, such as land, has the right to exclude others from the property. The law allows the land owner to exclude anyone from being in their property without their permission. Also, the law also provides for the tenant in the sense that she can exclude the owner from the land as long as he has leased the land at the time. If there are minerals on the land and the owner wants to mine, he has to give a notice of at least three days to the occupant of the land. If the trespasser cause damage on the land or refuses to move, the owner has the right to evacuate them and even ask for compensation.
Lueck, Dean and Miceli, Thomas J., Property Rights and Property Law. HANDBOOK OF LAW AND ECONOMICS, Polinsky & Shavell, eds., Forthcoming. Available at SSRN: https://ssrn.com/abstract=578323. This is a text chapter on Law and Economics.
Cass, Ronald A., Property Rights Systems and the Rule of Law. THE ELGAR COMPANION TO PROPERTY RIGHT ECONOMICS, Enrico Colombatto, ed., Edward Elgar Publications, 2003. Available at SSRN: https://ssrn.com/abstract=392783 or http://dx.doi.org/10.2139/ssrn.392783. This article examines property rights in the context of rule of law.
Eagle, Steven J., Property Rights after Horne (March 4, 2016). NYU Journal of Law & Liberty, Vol. 10, 2016; George Mason Legal Studies Research Paper No. LS 16-08. Available at SSRN: https://ssrn.com/abstract=2743712. This Article analyzes the Supreme Court’s 2015 decision in Horne v. Department of Agriculture, which extended to personal property rules regarding “physical takings” previously applicable only to real property.