Property 1.2 – What is Property?


I. The Concept of “Property”

A. “Property” Can Be Disaggregated

  • The concept of “property” can be disaggregated into numerous distinct rights.

  • These rights ascribe the relationship that owners have over particular things.

  • Some of the main rights involved in property law include…

i. Right to Possess

  • Example: Baby will not let father take her toy from her, telling him “It’s mine.” With this retort, the baby communicates that she believes she has the right to possess the toy and the right to exclude others, such as her father, from it.

ii. Right to Exclude

  • See example above.

iii. Right to Use and Enjoy

  • Example: Baby plays with toy and refuses to stop when father tells her it is time to put it away, telling him, “It’s mine.” With this retort to her father, the baby communicates that she believes she has the right to use and enjoy the toy, and he has no right to make that decision for her.

iv. Right to Control

  • Example: Baby sets her toy in the corner of the room. When her father tries to put the toy back in the toy box, she tells him, “It’s mine.” With this response, the baby communicates that she believes she has the right to control the toy, including the right to control where it is placed.

v. Right to Alienate

  • Example: Baby tries to give her toy to a friend. When her father tries to stop her from doing this, she tells him, “It’s mine.” With this retort, the baby communicates that she believes she has the right to alienate her toy when and to whom she wants.

vi. Right to Destroy

  • Example: Baby tries to smash her toy into a thousand pieces. When her father tries to stop her from doing this, she tells him, “It’s mine.” With this retort, the baby communicates that she believes she has the right to destroy the toy.

B. The “Bundle of Rights” Metaphor

  • The concept of “property” is a collection of the aforementioned rights, which can be disaggregated. Because of this, the law often refers to property as a “bundle of rights.”

  • In addition to allowing us to consider specific property rights individually, the “bundle of rights” metaphor is useful because it illustrates that the concept of property involves the following ideas…

i. Powers

  • Property law involves the powers that we are able to exercise in relation to other people with respect to the thing identified as property, and the duties that others may have to respect your rights over that property.

ii. Balancing Rights and Limits

  • Property law involves balancing the rights or powers that we have over a particular piece of property, and the limits that may be placed on those rights or powers.

  • Some of those rights or powers may be more important than others, and some (like the right to alienate) may even be essential.

iii. Expanding the Concept of Property

  • Even things beyond just the ones that we traditionally think of as property (like items and land), can be considered property.

  • Example: One could hold a right of publicity (a type of property right) over their likeness, persona, and identity (a type of property).

  • Example: One could hold certain property rights (such as the right to reproduce, the right to prepare derivative works, and the right to distribute) under the law of copyright, protecting their creative works, like books and music (a type of property–specifically, intellectual property).


Topic of This Lesson: What does the idea of property mean?


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?

We are familiar with the concept of property from a young age.


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 learn as a child.

Example: Even babies are familiar with the idea of property.


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.

Property is a complex concept.


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. The 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.

Returning to Baby Example: Right to Possess & Right to Exclude


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).

Baby Example: Right to Use and Enjoy


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.

Baby Example: Right to Control


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. Now, here it’s a little different, right? I’m not trying to possess a 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).

Baby Example: Right to Alienate Property


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.

Baby Example: Right to Destroy


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.

Property is a collection of numerous distinct rights.


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.

Property as a “Bundle of Rights”


This is why, in law, property’s often referred to as a bundle of rights. These rights ascribe 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.

The “bundle” metaphor illustrates property as power in relation to 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; [and] to respect how I choose to use it, enjoy it, transfer it, or even destroy my property.

Desert island hypothetical illustrates how property is about power in relation to others (i.e., Rights and Duties)


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.

The “bundle” metaphor disaggregates various rights.


Now, what is useful about understanding property as a bundle of rights? Now, the first thing, of course, is 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.

The “bundle” metaphor shows how these rights are balanced (Example: Home ownership).


We can also then talk about the balance of those rights in different ways. You might say, in certain contexts, 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.

The “bundle” metaphor shows some rights are essential in order for something to be considered property.


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.

The “bundle" metaphor illustrates how the range of things that can be considered property expands beyond just things traditionally considered to be 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.

Example of having property rights in a nontraditional thing: Right of publicity provides a property right in likeness/persona/publicity.


Take, for example, the right of publicity, which arose in the 20th 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, [or] 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, and 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.

Another example of having property rights in a nontraditional thing: Copyright provides a property right in creative works.


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 propertyitems and land.

How the property rights in creative works (under copyright) differ from traditional property rights


In fact, in this case, the rights protected by copyright aren’t even identical to those of traditional property right[s], 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, [and] 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[s] as a bundle of rights.

Summary: Conceptually, property can be understood as a bundle of different rights.


So, in summary, essentially, the answer to the question ofーWhat is property?ー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, [it] 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 [that], nonetheless, we start identifying as property interests.

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