JOBNAME: Cooke − Modern Studi PAGE: 1 SESS: 8 OUTPUT: Thu Apr 26 15:36:11 2007 MODERN STUDIES IN PROPERTY LAW: VOLUME 4 This book is a collection of papers given at the sixth biennial conference at the University of Reading held in March 2006, and is the fourth in the series Modern Studies in Property Law. The Reading conference has become well-known as a unique opportunity for property lawyers to meet and confer both formally and informally. This volume is a refereed and revised selection of the papers given there. It covers a broad range of topics of immediate importance, not only in domestic law but also on a worldwide scale. Columns Design Ltd / Job: Cooke_Vol4 / Division: CMSPL4_00_Prelims /Pg. Position: 1 / Date: 26/4 JOBNAME: Cooke − Modern Studi PAGE: 2 SESS: 8 OUTPUT: Thu Apr 26 15:36:11 2007 Columns Design Ltd / Job: Cooke_Vol4 / Division: CMSPL4_00_Prelims /Pg. Position: 2 / Date: 26/4 JOBNAME: Cooke − Modern Studi PAGE: 3 SESS: 13 OUTPUT: Fri Apr 27 12:07:51 2007 Modern Studies In Property Law Volume 4 Edited by ELIZABETH COOKE Professor of Law, University of Reading Columns Design Ltd / Job: Cooke_Vol4 / Division: CMSPL4_00_Prelims /Pg. Position: 1 / Date: 27/4 JOBNAME: Cooke − Modern Studi PAGE: 4 SESS: 10 OUTPUT: Fri Apr 27 10:39:16 2007 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 (503) 287-3093 or toll-free: +1 (800) 944-6190 Fax: +1 (503) 280-8832 E-mail: [email protected] Website: www.isbs.com © The editor and contributors severally 2007 The editor and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. 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Position: 2 / Date: 27/4 JOBNAME: Cooke − Modern Studi PAGE: 5 SESS: 9 OUTPUT: Thu Apr 26 15:36:11 2007 Preface The fourth volume of Modern Studies in Property Law celebrates the sixth biennial conference of the Centre for Property Law at the University of Reading. It has been a pleasure for me and for my colleagues at Reading, many of whom were involved in the very beginning of this conference series, to see it going from strength to strength. Papers from the earlier Reading conferences were published as: Jackson, P and Wilde, DC (eds), The Reform of Property Law (Dartmouth, Ashgate, 1997); Jackson, P and Wilde DC (eds), Contemporary Property Law (Dartmouth, Ashgate, 1999); Jackson, P and Wilde DC (eds), Property Law: Current Issues and Debates (Dartmouth, Ashgate, 1999); and the first three volumes of Modern Studies in Property Law (Oxford, Hart Publishing), which contain papers from the conferences in 2000, 2002 and 2004. All the Modern Studies volumes are refereed publications, and as editor I am most grateful to the small team of distinguished, anonymous scholars who have helped select and refine papers for publication, as well as to the authors of the papers for their co-operation with this process. This volume opens with the keynote address for the conference, given by Martin Partington. His work as a Law Commissioner for England and Wales, and now as a Special Consultant to the Law Commission, puts him in an ideal position to report on the Law Commission’s work on the reform of housing law. This has burgeoned into three projects—Renting Homes, Housing Disputes and Responsible Renting. The final Renting Homes report has been published with a draft Bill, while the other two projects, which grew out of it, are in their early stages. All offer exciting prospects for the reform of this vexed area, in addition to expanding the scope of the work undertaken by the Law Commission. The next section of the book is blandly entitled ‘Law and Equity’ and covers issues of domestic law, in many cases with an equity flavour. Martin Dixon revisits a long-running discussion in the volumes of Modern Studies in Property Law about equitable co-ownership of land, arguing that the courts have all but eliminated the proprietary status of equitable ownership rights, thereby going further than they need in favour of third parties. The subject is one of endless fascination and perennial relevance, not least in the light of the Law Commission’s recent consultation paper on cohabita- tion. Graham Ferris’ controversial chapter on the nature of undue influ- ence follows, underlining the complexity of the interaction between judicial law-making and academic analysis. Gary Watt explores the world of Columns Design Ltd / Job: Cooke_Vol4 / Division: CMSPL4_00_Prelims /Pg. Position: 1 / Date: 26/4 JOBNAME: Cooke − Modern Studi PAGE: 6 SESS: 9 OUTPUT: Thu Apr 26 15:36:11 2007 vi Preface mortgages, another favourite field of creativity for equity, and exposes the difficulty involved in dispensing with so many centuries of entrenched fictions. Robin Hickey turns our attention to personal property law. He asks if our law imposes on the finder of goods any duty to the person who lost them. He concludes that it does not, and points out that in a context where the protection of possessions is a human right, this failing may have to be remedied. The two final chapters in this section revert to the law relating to homes, but with a public law flavour. Warren Barr looks at rented housing and the possibilities of ‘rethinking possession’ against vulnerable groups. This is another area—like mortgages and the law relating to equitable co-ownership rights—in which the law endeavours to keep folk in their homes but has to make very difficult choices between individuals and the wider community. The law reform heralded by Martin Partington’s chapter will, it is hoped, go some way to solve the problems in this area. Nick Hopkins and Emma Laurie pursue the theme of home in the context of social security law and the concept of ownership, pointing out the different objectives of ownership concepts in social security law and property law and arguing for a reconciling of their different meanings. The next section of the book contains three chapters that examine the effect of time upon the creation of property rights in land. First, Amy Goymour looks at the many instances in English law when time operates alongside other factors to create rights in land. Because the various doctrines have grown up independently, they are not often examined together; this chapter subjects the muddle to some joined-up thinking, arguing that a coherent pattern can be seen and could be developed further—and indeed that it must be, in the light of the provisions of the European Convention on Human Rights. One of the most potent effects of possession of land over time is the limitation of actions. Pam O’Connor looks at this in the context of registered land, where decisions have to be taken in order to reconcile the confiscatory effect of adverse possession at common law with the supposed indefeasibility of registered title. Her chapter analyses the different responses found to this conundrum in different jurisdictions. She finds three principal approaches and concludes that the method adopted in the English Land Registration Act 2006 could be substantially improved. Finally, this section concludes with Bruce Ziff and Sean Ward’s analysis of the settlement of land around Alberta in the nineteenth century, which gives this section of the book a historical perspective. Their account of the ‘squattocracy’ and the transformation of the possession of frontier claims into legitimate ownership also sets the stage for the final section of the book, where we look at those who were dispossessed by this process. Columns Design Ltd / Job: Cooke_Vol4 / Division: CMSPL4_00_Prelims /Pg. Position: 2 / Date: 26/4 JOBNAME: Cooke − Modern Studi PAGE: 7 SESS: 9 OUTPUT: Thu Apr 26 15:36:11 2007 Preface vii Finally, then, is the section ‘Property, Empire and Indigenous Title’. English common law has been exported throughout the world and has been a powerful tool for the oppression of aboriginal communities and the denial of their land rights. Patrick McAuslan shows the origins of this technique in the Norman conquest of 1066 and then in the subjugation of Ireland, and its later development in successive colonisations. Lee Godden and Maureen Tehan then look at native title claims in Australia, examining the process of translating native title into the concepts and language of Western property and then again, even more painfully, into marketable rights. Margaret Stephenson’s chapter addresses the same issue but in a different style and with different scope; she examines the numerous different forms of indigenous land tenure in Australia, the USA, Canada and New Zealand, searching for lessons for Australia to assist in the latter’s attempts to solve this massive inherited problem.