Property

So, in this lesson, I'd like to start with the most basic question: what is property? I'm not talking about the class or what kind of things can be considered property, but something even more fundamental than that. Which is, what does the idea of property even mean?

Now, what makes this question interesting is that the idea of property is not new or foreign. Most law students have a strong sense of what property is when they come into the class. When you come to law school, you may not know exactly everything that's in the Constitution, or even the basic elements of a contract. But you probably have an intuitive sense of what property is. After all, we've been dealing with it all our lives. In fact, it's probably the first thing we learned as a child.

Certainly for my daughter, one of the first things that she said after "mama" and "dada" was, "It's mine." And given her earlier tantrums, I would say that even before she developed language, she had a sense of what property is.

But the problem is because the idea of property is so basic, perhaps instinctual, we often don't take the time to really consider what we mean when we say that something is mine. But law requires more specificity. It requires us to unpack essentially this intuitive idea. And the first thing we discover when we do that is that we actually mean a lot of different things when we claim something as property. In other words, property can be disaggregated.

Let's turn back to my daughter. Imagine that she's holding a toy and I reach over to try to take it from her. "It's mine," she announces, but what does she mean when she's saying that? One would be that as her property, she has the right to possess the toy, and also that she has the right to exclude others from it, which in this case would be me.

Now imagine I don't reach over to take the toy but I simply tell her that it's time to stop playing with the toy. "It's mine!" she screams. What is she saying here? It appears to be that because the toy is her property, she has a right to use and enjoy the toy and that I had no right to make that decision for her.

Now let's say that she's not actually possessing the toy or using the toy but she's placed it carefully in the corner of the room. I'm cleaning up the room so I try to take the toy and return it to the toy box. "It's mine," she says. Here, it's a little different, right? I'm not trying to possess the toy for myself, nor is she using it. But by saying that the toy is hers, she seems to be asserting a right to control the property (in this case, control it by determining where it should be placed).

Now imagine another scenario. She's trying to give the toy away to a friend. Or perhaps she's just sitting there trying to smash it into a thousand pieces. I tell her she shouldn't do that, and she retorts again by saying, "It's mine." What does she mean here? Now, in the case of giving her toy away, maybe she's saying that because the toy is hers, she gets to decide when and to whom she wants to transfer ownership of that property, a right that we refer to in the law as the right to alienate the property.

Or in the situation where she's trying to smash it into a thousand pieces, she might be asserting a right to destroy the property, a right that she believes she has as the owner of that property.

Definition

What these examples show is that by identifying something as our property, we're actually asserting a number of distinct rights over that property. And here we get to the second point I want to make about property, which is that if property can be disaggregated into a number of different rights, then the idea of property itself is essentially a collection of those rights.

This is why, in law, property's often referred to as a bundle of rights. These rights describe the relationship that owners have over particular things and these rights may include, as we went through earlier, the right to possess, the right to exclude, the right to use and enjoy, the right to control, the right to alienate, the right to destroy, and perhaps others.

But by seeing property as a collection of rights, a bundle, if you will, it also reveals the degree to which property is about the powers that we are able to exercise in relation to other people. In other words, these rights are exercised against other people with respect to the thing identified as property. By essentially saying that "it's mine," I'm asserting to others that they have a duty not to deprive me of possession, to stay away from my property unless I grant permission, to respect how I choose to use it, enjoy it, transfer, or even destroy my property.

After all, it doesn't mean much if we are alone on a desert island with no one around. The idea of property doesn't seem to have much salience there. This is why some have referred to property as essentially an announcement to the world that I possess certain rights over that thing, and they have certain duties to respect, essentially, those rights.

Now, what is useful about understanding property as a bundle of rights? Now, the first thing, of course, is that it disaggregates what we mean by property and then we can address the individual rights themselves, individually. We may be able to say that when we're talking about property in a specific context, we're focusing on, let's say, the right to use and enjoy.

We can also then talk about the balance of those rights in different ways. You might say in a certain context, I may have the right to possess and exclude with regard to a house that I own, but maybe the law limits my ability to use that property, my right to use, such as the ability to, let's say, build a factory on that lot.

It also allows us to determine whether or not certain rights are in fact essential to what we think about property. In other words, is property still property if a specific right is taken away? As we will learn later, courts sometimes identify certain rights as more important than others. In fact, some rights, like the right to alienate, are often considered so essential that if they are taken away, then the thing is considered no longer property. Courts refer to these conditions as essentially repugnant to the fee, which in this case, fee is just another name for property. Seeing property as a bundle also allows the property idea to expand. We can see how property interests can move into things that may not at first glance appear to be things that are traditionally property.

Take, for example, the right of publicity, which arose in the twentieth century to recognize essentially a person's ability to control his own likeness, his persona, or how his identity is used. Thus the right of publicity protects Jay-Z's right to decide whether his face goes on a T-shirt, whether his name gets attached to a specific product. Now, here likeness or persona or identity is nothing like the things or the land that we often refer to as property. But because the right of publicity is essentially about a bundle of rights that a person can exercise over likeness, persona, or identity, we have also come to recognize likeness, persona, identity as essentially a property right because it is also a bundle of rights with rights that are similar to the rights associated with traditional property.

Or consider another example, which is the law of copyright, which protects creative works like books and music. Again, creative works and ideas seem to be distinct from the things that we identify as property, items, and land.

In fact, in this case, the rights protected by copyright aren't even identical to those of traditional property rights, like the right to exclude or the right to possess. How do you possess a creative work? Rather, the law governing copyright protects such rights as the right to reproduce, the right to prepare derivative works, the right to distribute, among others. But despite the fact that the federal law setting out copyright does not mention property at all, copyright is now commonly referred to as a form of intellectual property. And essentially, the reason why we refer to it as property is because it shares the same feature as a bundle of rights.

So in summary, essentially, the answer to the question of what is property is essentially that property is a collection of different rights that can be disaggregated. That when we refer to something as property, we're referring to essentially a bundle of those particular rights. And by understanding property as a bundle allows us to deal with those rights specifically, but also to see how it expands into other areas that may not seem like traditional property, but nonetheless, we start identifying as property interest.