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Article
Publication date: 10 July 2023

Hang Wu Tang

This paper aims to adopt a comparative method using case law, statutes and secondary literature across both jurisdictions. This paper also draws on various theories of property…

Abstract

Purpose

This paper aims to adopt a comparative method using case law, statutes and secondary literature across both jurisdictions. This paper also draws on various theories of property ownership.

Design/methodology/approach

This paper conceptualises the legal relations embedded within condominium housing and the various theories of property ownership to ascertain how children’s interest fit within this framework. The laws of two jurisdictions, New South Wales and Singapore, are examined to determine how their strata law responds when children’s safety is at stake.

Findings

Drawing on pluralist moral theories of property law, the thesis advanced is that children’s issues within condominiums should not be subject to majoritarian rule especially when their safety is at stake. The paramount guiding value should be ensuring their safety within multi-owned housing communities. Using the law of two jurisdictions, New South Wales and Singapore, the central argument of this paper is that the law in these jurisdictions has rightfully adopted a protective approach towards children in multi-owned properties where their safety is at stake.

Originality/value

The literature on the law of multi-owned housing has largely focused on governance issues such as mediating between the majority owners’ interest with that of the minority owners’ interest. Children in multi-owned developments remain an under investigated area as children’s interests do not fit within the paradigm of majority versus minority interests. The paper advances the argument that children’s interest should be viewed through either a rights-based theory or pluralists’ theories of property law. Lessons from the New South Wales and Singapore experience are also drawn which might prove useful to other jurisdictions.

Details

Journal of Property, Planning and Environmental Law, vol. 16 no. 1
Type: Research Article
ISSN: 2514-9407

Keywords

Article
Publication date: 1 December 2000

Tomas J.F. Riha

Property is considered paramount to one’s existence, as a natural, absolute and inalienable right. Occupancy is required for man to secure what his thoughts have already made…

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Abstract

Property is considered paramount to one’s existence, as a natural, absolute and inalienable right. Occupancy is required for man to secure what his thoughts have already made his. Property is realized in use but the right of occupancy and the status of res nullius are not established by the absence of use only, but in addition there must be also the absence of will of original owners. Arguing that appropriation precedes production dismisses the assertion that property is the fruit of labour. In contrast to the followers of the “state of nature” point of view, it is argued that common property is not natural and as such it is only transitory. Private property is at the root of man’s universality because it is common to all and individuals recognize each other only as owners. To base the origin of property in a social contract is erroneous because any contract must be based on the mutual recognition of parties involved who are already property owners. It is necessary that everybody have property not only in his or her persons but also to provide for subsistence. This would be regarded by natural law as just. Justice does not require the equality of property. Perpetual inequalities in property rights are not natural but the result of man‐made institutions which would not in themselves be right and would not have the obligatory power in virtue of their rightness. As such they would not be morally binding. Society that systematically consigns whole classes to conditions of poverty undermines the rationality of the ethical order and as such heads towards self‐destruction. Today, people are generally convinced that a person’s happiness depends on the satisfaction of that person’s actual desires. Property in things and enjoyment of one’s possessions, is often perceived as prerequisites for happiness. Individual happiness as an outcome derived from the distribution of property rights should be demoted from its status as the final good in preference to freedom.

Details

International Journal of Social Economics, vol. 27 no. 12
Type: Research Article
ISSN: 0306-8293

Keywords

Article
Publication date: 16 December 2022

Michael W. Poulsom

This purpose of this paper is to examine whether disciplines outside law demonstrate consensus on the attributes of home, whether, to the extent that there is consensus, property…

Abstract

Purpose

This purpose of this paper is to examine whether disciplines outside law demonstrate consensus on the attributes of home, whether, to the extent that there is consensus, property law supports those attributes, whether those attributes can be reconciled with working from home, and how far property law is able to address uncertainty regarding the regulation of working from home.

Design/methodology/approach

This paper identifies conceptions of “home” from non-law disciplines. It examines the extent to which property law in England and Wales supports or challenges those conceptions. It examines the extent to which working in homes disrupts or distorts those conceptions. It assesses the extent to which property law engages with that disruption.

Findings

A lack of clarity in how “home” is defined and perceived in non-law disciplines, and a tendency in those disciplines to produce static and decontextualized notions of home is reflected in inconsistent property law approaches to protection of important “home” attributes. Recognition by property law of the prevalence of home working is relatively undeveloped. An under-appreciation of “context” dominates both cross-disciplinary perceptions of home, and the support which property law provides to those perceptions.

Research limitations/implications

This paper focuses on conceptions of “home” drawn from disparate disciplines and seeks to find consensus in a diverse field. It concentrates on the regulation by covenants of the use of homes for non-domestic purposes in England and Wales.

Practical implications

Suggested alterations to property law and practice, and to the imposition and construction of covenants against business use, might better reflect the prevalence of working from home and clarify the circumstances in which homes can properly be used for work purposes.

Social implications

This paper identifies that in its inconsistent recognition of “home” attributes in general, and in the lack of established principles for regulating the use of homes for business purposes in particular, property law offers insufficient certainty to occupiers wishing either to work at home, or to resist doing so. It identifies that a broader cross-disciplinary investigation into the inter-relationship between living spaces and working spaces would be beneficial.

Originality/value

The originality of this paper lies in its examination from a property law perspective of established cross-disciplinary conceptions of home in the context of the recent growth of working in homes.

Details

Journal of Property, Planning and Environmental Law, vol. 15 no. 1
Type: Research Article
ISSN: 2514-9407

Keywords

Article
Publication date: 20 February 2009

Balbir S. Sihag

The purpose of this paper is to explore the status of economic analysis of laws relating to property and contracts during ancient times in India.

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Abstract

Purpose

The purpose of this paper is to explore the status of economic analysis of laws relating to property and contracts during ancient times in India.

Design/methodology/approach

Modern research tools are used to present Kautilya's ideas on contracts and property.

Findings

Kautilya implicitly proposes a labor theory of property. He devised economic laws related to contracts, property and tort, which promoted economic efficiency and encouraged ethical behavior.

Research limitations/implications

Current approaches ignore the role of ethics in designing legal rules for promoting economic efficiency.

Practical implication

Unless laws are designed to encourage and promote ethical conduct optimum economic efficiency is unlikely to be achieved.

Originality/value

Kautilya advocated a contract theory (between the ruler and the ruled), which was utilitarian in nature, however, unlike Bentham, he still appealed to the moral motivation.

Details

Humanomics, vol. 25 no. 1
Type: Research Article
ISSN: 0828-8666

Keywords

Article
Publication date: 1 June 2004

John L. Worrall

The argument is presented that, is contrast to expectations, the Civil Asset Forfeiture Reform Act (CAFRA) of 2000 will not be responsible for significant change in the practice…

1030

Abstract

The argument is presented that, is contrast to expectations, the Civil Asset Forfeiture Reform Act (CAFRA) of 2000 will not be responsible for significant change in the practice of civil asset forfeiture, that the Act is a sheep in wolf's clothing. While it has ushered in some important procedural changes, CAFRA does not address several of what critics perceive to be the most significant problems associated with civil asset forfeiture, among them are a questionable standard of proof, equitable sharing, and the so‐called “taint doctrine.” Thus, it is likely that civil asset forfeiture will continue to be a valuable law enforcement tool in the war on drugs.

Details

Policing: An International Journal of Police Strategies & Management, vol. 27 no. 2
Type: Research Article
ISSN: 1363-951X

Keywords

Content available
Article
Publication date: 6 March 2009

Jun Wei, Steve Robinson and Michael Zou

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Abstract

Details

Journal of Property Investment & Finance, vol. 27 no. 2
Type: Research Article
ISSN: 1463-578X

Article
Publication date: 11 April 2016

Francis King

This paper aims to consider a more visual approach to property law teaching practices. This will be achieved by exploring the existence of “visual learners” as a student body…

Abstract

Purpose

This paper aims to consider a more visual approach to property law teaching practices. This will be achieved by exploring the existence of “visual learners” as a student body, evaluating the use of more visual teaching techniques in academic practice, recognising the historic dominance of text in legal education, and examining the potential for heightening visual teaching practices in the teaching of property law.

Design/methodology/approach

The paper reviews and analyses some of the available literature on visual pedagogy, and visual approaches to legal education, but also introduces an amount of academic practitioner analysis.

Findings

This paper evidences that, rather than focusing on the categorisation of “visual learner”, the modern academic practitioner should use the customary use of more visual stimuli, consequently becoming a more “visual teacher”. This paper demonstrates that these practices, if performed effectively, can impact upon the information literacy of the whole student body. It also proffers a number of suggestions as to how this could be achieved within property law teaching practices.

Practical implications

The paper will provide support for early-career academic practitioners, who are entering a teaching profession in a period of accelerated and continual change, by presenting an overview of pedagogic practices in the area. It will also provide a stimulus for those currently teaching on property law modules and support their transition to a more visual form of teaching practice.

Originality/value

This paper provides a comprehensive overview of visual pedagogy in legal education, and specifically within that of property law, which has not been conducted elsewhere.

Details

International Journal of Law in the Built Environment, vol. 8 no. 1
Type: Research Article
ISSN: 1756-1450

Keywords

Article
Publication date: 6 July 2023

Abebe Hambe Talema and Wubshet Berhanu Nigusie

This study aims to investigate key aspects of public ownership of land, expropriation and compensation laws and practices in Ethiopia with special reference to Burayu Town.

Abstract

Purpose

This study aims to investigate key aspects of public ownership of land, expropriation and compensation laws and practices in Ethiopia with special reference to Burayu Town.

Design/methodology/approach

A mixed research technique of descriptive and analytic approach is applied in the research. This study used a purposive sampling technique to select case study counties and a systematic method for sampling households. Questionnaire surveys, focus group discussions, interviews and observations were used to collect empirical data. Average, percentage and paired-sample t-test analyses are used for quantitative data analysis.

Findings

Significant discrepancies exist between the expropriation laws and how property valuation and compensation are practiced in Ethiopia. The findings include the arbitrariness in designating public interest status to projects; unfair property valuation practice that neglects location factor to determine market value due to a skewed understanding of public ownership of land; and the assignment of property valuators who have no valuation expertise and proper knowledge of expropriation related laws. Findings revealed the socio-economic status of expropriated households has deteriorated due to the expropriation of their landholding.

Research limitations/implications

It was difficult to locate the relocated persons as they were resettled in different localities. Furthermore, the town officers were not forthcoming to provide complete information on the expropriation and compensation procedures they followed. However, this study overcame the limitations through persistent requests and availing time for the data gathering.

Practical implications

The findings indicated the need to redefine relationships between public ownership of land, public interest and expropriation of landholding. A proper understanding of the triad will pave the way for better expropriation practice in Ethiopia and in countries where land is under public ownership.

Social implications

The social implication of the study revealed that the socio-economic situation of relocated persons was adversely affected due to the poor implementation of laws.

Originality/value

The disparity between public ownership of land and the rights of citizens on landholding is misunderstood by policymakers. Research has shown for the first time the root cause for the discontent of expropriated persons in Ethiopia.

Details

Property Management, vol. 42 no. 1
Type: Research Article
ISSN: 0263-7472

Keywords

Article
Publication date: 14 August 2023

Rio Erismen Armen, Engku Rabiah Adawiah Engku Ali and Gemala Dewi

This study aims to investigate beneficial right as a new legal concept and term accepted by the Indonesian legal system. The new concept was ratified to endorse government…

Abstract

Purpose

This study aims to investigate beneficial right as a new legal concept and term accepted by the Indonesian legal system. The new concept was ratified to endorse government decision to use ṣukūk (as an Islamic financial instrument) in the financing of state budget deficit. Some legal issues emerged after the ratification such as the necessity to synchronize the beneficial right with other property rights in Indonesia and the disharmony between laws related to sovereign ṣukūk issuance.

Design/methodology/approach

The study uses a qualitative method with library study and interviews with relevant legal experts in Indonesia as the data collection techniques.

Findings

The findings show that the passage of Sovereign Ṣukūk Law 2008 that ratified beneficial right deemed as a concession point by the government to solve conflicts between legal restriction and employment of state-owned assets as the underlying asset of sovereign ṣukūk. The study deemed the necessity to improve the use of beneficial right in the Indonesian legal system which by the concept is not exercised for the issuance of sovereign ṣukūk only. There is the need to harmonize the administration of this right with other property rights in Indonesia.

Research limitations/implications

The scope of study will be limited to the Indonesian regulation related to the use of beneficial right concept in the issuance of sovereign ṣukūk in Indonesia. The regulation as mentioned will be in the form of statutes, presidential or ministerial regulations, and also opinions of Indonesian legal and sharīʿah scholars regarding the matter.

Originality/value

This study may explore significantly the use of beneficial right for the issuance of sovereign ṣukūk by the Government of Indonesia. Specifically, the study reveals and addresses the issues that are following the ratification of beneficial rights originated from the common law system into the Indonesian civil law system.

Details

International Journal of Law and Management, vol. 65 no. 6
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 8 June 2023

Lei Chen

This paper aims to unfold the intricate relations between private law design, the structure of organizations for collective action and cultural values and orientations that…

Abstract

Purpose

This paper aims to unfold the intricate relations between private law design, the structure of organizations for collective action and cultural values and orientations that practically guide interpersonal interactions in Chinese society.

Design/methodology/approach

Drawing upon the Hofstede Insights National Culture survey (The Culture Compass) data and some judicial rulings in China, this paper examines the legislative development and judicial approach to settle condominium disputes to explain and address the cultural orientation for future legal reform. This paper examines how the law reflects and responds to the cultural and social variations/interactions among the stakeholders, namely, local government, developers, homeowner associations, condo owners and property management agents.

Findings

Culture plays a significant role in shaping how condominiums are governed in China. This analysis can highlight the role of cultural factors that influence the success or failure of condominium governance and suggest ways in which governance structures can be adapted to reflect the legal culture of the community better. The emphasis on social harmony, respect for authority, relationships and networks and knowledge and expertise all contribute to a unique approach to condominium governance that reflects the values and priorities of Chinese society.

Originality/value

While much has been written on the importance of property rights to economic development, relatively little seems to be understood about processes of change in complex property systems, particularly in China, a socialist-transforming country. Specifically, there is a lack of reliable knowledge about the intricate relations between the structure of organizations for collective action and cultural orientations that practically guide interpersonal interactions in Chinese society. The question at the heart of this research relates to the condominium rules most suitable for an emerging Chinese private property market.

Details

Journal of Property, Planning and Environmental Law, vol. 16 no. 1
Type: Research Article
ISSN: 2514-9407

Keywords

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