This Introduction has three objectives. The first is to situate this volume within the current phase of South Africa’s difficult engagement with land reform in particular and transformative constitutionalism in general. For this purpose, we characterise the recent debate on ‘Expropriation Without Compensation’ (EWC) and the political developments leading to the tabling, and failure, of the Constitution Eighteenth Amendment Bill. In section two, we begin with an account of the research project and conference that led to this volume and then review the book’s three-part structure and its individual chapters in relation to each other. While there are important points of convergence with regard to the contested assemblage of law, land reform and redistributive justice, there are also divergent views for probing further. In the third section, we respond to this challenge by addressing three interlinked issues that emerge from a transversal reading of the chapters, which we regard as central for the future of redistributive justice in South Africa. These are, first, the respective roles of the state, popular politics and the private sector in driving this project; second, the relative importance to be attached to productive and redistributive measures as building blocks of change; and third, the scale of the structural changes that are needed.

This chapter shows how thin the legal-economic analysis of property law has been and responds to a few particular arguments in that field, including arguments about the general structure of property law, adverse possession, and dead-hand control.

This chapter provides a snapshot of the recent developments on Chinese security interest law. Several questions will be explored. Firstly, were there any needs for changes? Secondly, what are the recent changes? Thirdly, have these changes achieved the purpose? I will offer some critical reflections of the law in terms of clarity, simplicity, convenience, and fairness. Not only are the relevant background and statutory framework of the security interests explained, but its theoretical structure and several practical issues will also be discussed. For instance, where a loan has been secured by both a personal guarantee and a mortgage, in the absence of any agreement, will the creditor have a free choice on which one to enforce first? Another question to be addressed is in situations where more than two securities had secured a loan (including a personal guarantee and mortgages) on a joint and several liability basis, in the absence of any agreement, can a security provider indemnify from the others after it fulfilled its security obligation in case of the debtor’s insolvency ?

Our penultimate chapter explores the extent to which the Tudor period saw a legal renaissance. It examines developments in the common law courts but also explores the development of new conciliar courts outside the common law, most notably star chamber and the court of equity, which were to prove influential. It also examines the further rise in the use and importance of statute law in this period, demonstrating that the Reformation statutes that split England from the Roman Catholic Church underscored the power of Parliamentary statute. Attention is also given to some developments in the common law courts during this period concerning the law of obligations (the development of the principle of consideration in contract law), property law (the development of the writ of ejectment that replaced the older land law writs and the origins of the law of trusts) and criminal law (the development of the distinction between murder and manslaughter).

A deeply contentious judicial debate over the enforcement of contracts for the sale or hire of enslaved people erupted as one of legal Reconstruction’s central battles. This chapter explains the doctrinal approaches favored by judges, analyzes their underlying legal rationales, and explores the consequences of choosing one rationale over the others. It argues that a fundamental disagreement about the meaning of the Thirteenth Amendment caused the judicial discord. The outcome of that disgreement – the enforcement of contracts – permanently weakened the power and potential of the Thirteenth Amendment.

It was during the reign of Henry II (1154–89) that royal justice was available to anyone could bring their case within a certain formula, known as a writ. This is discussed in Chapter 5, ‘The Father of the Common Law (c.1154–1215)’, the title of which refers to the title often bestowed upon Henry II, the first monarch from the House of Plantagenet. The chapter focuses on the development of the writ system during and in the aftermath of Henry’s reign in relation to what we now call land law and whether this marked a move to centralisation that replaced the feudal system. The chapter begins by examining the Becket controversy but will then move on to argue that it is for other developments that Henry Plantagenet’s reign should be remembered. The second part of this chapter explored the developments to the legal system that occurred during this reign and that allowed for a common law to develop and be regularised. The final section will explore in detail the origins of the writ system, following Maitland’s legendary account of The Forms of Action as well as the revisions and criticisms put forward by Milsom.

Property law is increasingly confronted with limits and modifications arising from environmental and social contexts. The objective of this chapter is to highlight how property law can provide answers to environmental challenges, by adapting several of its fundamental concepts to the polymorphism of environmental and social issues. Starting with a study of the theoretical movement of Earth jurisprudence, the chapter suggests that it is possible to consider Nature as a subject of legal interests, allowing it to acquire legal standing. It also suggests that it is necessary to reconceptualise property and its narrative to develop, in both civil and common law, a more limited, relational and functional conception of property. In addition, the polymorphic heritage of property law makes it possible to call upon the civilian concept of patrimony, in its symbolic or technical function, to protect the environment.

The inclusion of a chapter on ethical issues in a property law text is hardly conventional. You will struggle to find matters of professional and legal ethics or ethical duties and obligations discussed in either a text or arguably a course on property law. However, we believe a different way of tackling matters of ethics is required. It remains important to acquire a solid grounding in the legal and regulatory framework relevant to legal ethics, including the sorts of ethical and professional dilemmas confronted by both law students and legal practitioners in a rapidly changing profession. It is also important to gain an understanding of how ethical issues and dilemmas arise in property transactions, dealings and practice.

With the integration of technology into property law and the professional work of property lawyers and conveyancers, the role and context of ethical decision-making is relevant for both the student learning property law and the property law practitioner in the modern period.

This chapter concerns the impact and implication of technology upon both land and personal property and interests in both forms of property under the legal arrangements in place in Australia today. We start by considering the narrative which technology has created in property and with it the impact of the internet and associated opportunities and risks. We consider how technology has changed the way property lawyers communicate with all stakeholders to a property transaction. We next consider the role of digitisation upon both land and personal property securities registries. The chapter provides a detailed discussion of the significant ongoing story of electronic conveyancing and its implications in various ways for both student and practitioner of property law. We explain how this revolutionary system integrates with the fundamental and well-established Torrens system of land title registration. The chapter continues to discuss the nature and role of electronic contracts in property transactions and the link between this development and e-conveyancing. We conclude with an insight into the emerging issues of blockchain technology and its interface with artificial intelligence.

This chapter considers the principles applying to co-ownership, the situation where one or more persons or entities jointly owns property. It begins by examining joint tenancies and tenancies in common and the way such interests are created, the various obligations and rights attending to each and how co-ownership may be terminated. With the recent increase in apartment-style living in Australia’s larger cities, new forms of co-ownership were called for. The response was, first, the creation of company title and, from the 1960s onwards, new legislative forms of title reflected through the creation of strata and community title. These forms of co-ownership and the legislative regimes which underpin them form the focus of the second half of this chapter. In bringing together the legal framework governing co-ownership and the specific legislative regimes which apply to community living , this chapter draws together the law in relation to community of ownership in larger perspective and in one place, enabling an appreciation of this area of property law’s development as a response to changing social, commercial and community conditions.

This chapter explores the nature of possession of property and what it means in the different contexts of personal property and land. Although the law characterises property in personal property or goods and in land in distinct ways, possession provides a shared conceptual link a party in possession of land or of personal property will generally have a right to protect that property against interference by any third party (except the true owner).

This chapter is about registration systems for interests in property. The chapter takes an innovative approach by incorporating the systems and legal frameworks for both land and personal property. This is a theme reflected in other chapters of the book. In this chapter, the primary system for land registration, the Torrens system is explained in detail. The Deeds registration system in relation to general law land is also explained. The chapter covers the electronic Personal Property Securities Register (PPSR,) where security interests in personal property are recorded. The chapter aims to draw comparisons between the systems to identify what lessons can be learned in terms of optimal, effective, and efficient methods of electronic registration of interests in property.

This chapter centres upon what might be referred to as the foundation concepts of land ownership. It examines the doctrine of land tenure as relevant in modern Australia but locates the discussion within its historical context. We then investigate the doctrine of estates and see how this doctrine is inextricably linked to the doctrine of land tenure in providing time-based recognition of interests in land. The discussion then moves to a consideration of legal future interests and how the common law has been modified by legislation. The chapter next considers the restraint on alienation of property and the rule against perpetuities. The focus of this part of the chapter is concerned with understanding how the law governs a property owner’s ability to control the alienation of their property. The starting point is the general principle of the free alienation of property. As the modern rule against perpetuities is a combination of concepts developed by the common law and as now adjusted by legislative reform, you will need to appreciate the interconnection between common law concepts and critical provisions of the reforming legislation across Australian jurisdictions.

This chapter addresses equitable interests in property. Despite the implementation of the Torrens system of title by registration for land across all the jurisdictions of Australia, equitable interests remain significant. This chapter considers the characterisation of different equitable interests in property, and the key rules used to resolve priority disputes. Finally, this chapter canvasses some areas where equitable rules, or the philosophy underpinning them, have been incorporated into statutory schemes, with protection against unconscionable conduct particularly prominent.

A fee simple owner has the right to exclusive possession and may choose to occupy the land. Alternatively, a fee simple owner may choose to grant another person the right of occupation. This chapter explores the main way in which an owner of land grants another a right to occupy the land, via a lease. The chapter first considers leases under the general law. The chapter then turns to consider retail lease and residential lease legislation that was enacted in all Australian jurisdictions in the latter quarter of the 20th century. These two statutory regimes provide greater clarity as to the rights and obligations of the parties and confer significant protections for lessees. Although other lease legislation has been enacted in various Australian jurisdictions, this legislation is not considered in this chapter.

The parties to retail and residential leases cannot contract out of the provisions of the legislation. However, the general law principles regarding leases continue to apply to retail and residential leases to the extent that these principles are not inconsistent with the legislation.

In this chapter, we will be looking at what a ‘security’ or a ‘security interest’ is, as it affects both real and personal property.

This chapter is designed for those studying property law and is a general overview of the law relating to the creation of property interests in both real and personal property by way of the use of a security.

This chapter is broken down into both general and specific topics. There is an overview to understand what securities are, and then the chapter considers in more detail those securities that affect real property (e.g. a mortgage given by a bank to a purchaser to allow the purchaser to buy real estate); and securities over personal property, (e.g. a loan by a lender to a farmer to buy a pivot irrigator that will provide water to the farmer’s crops).

Securities in relation to real land is dealt with by a myriad of Torrens legislation and property law statutes which are, for the most part, similar in each jurisdiction. Securities in relation to certain personal property is generally dealt with by federal law pursuant to the Personal Property Securities Act 2009 (Cth).

In past years, many histories of Australia began with the so-called ‘discovery’ of parts of the ‘Great South Land’ by European explorers.

While this approach may be understandable, it is no longer acceptable to view the Indigenous history of Australia purely from a European perspective. To do so would disrespect profoundly the continent’s first inhabitants. This chapter thus begins with a consideration of the profound relationship between Indigenous Australians and the land. It examines the landmark 1992 decision in Mabo v Queensland (No 2), which led to the passage of the Native Title Act 1993 (Cth) ensuring the continuing recognition and protection of Indigenous Australians’ native title rights and interests. The chapter focuses on the rights, obligations and procedures for establishing, proving, and contesting native title claims through both the Federal Court and the National Native Title Tribunal. It discusses the landmark High Court decision in Northern Territory v Griffiths in relation to compensation for extinguishment of native title. The chapter concludes by considering state and territory legislation introduced following the enactment of the Native Title Act 1993 (Cth).