Modern Studies in Property Law: Volume 10

"This book contains a collection of papers presented at the Twelfth Biennial Modern Studies in Property Law Conference held at University College London in April 2018. The conference and its published proceedings are an established forum for property lawyers from around the world to showcase the latest research. This collection includes a keynote address by Dame Elizabeth Gloster, former Vice President of the Court of Appeal (Civil Division), on technology in property law. It also includes plenary addresses by Professor Henry Smith on the architecture of property law and the challenge of compiling the American Law Institute's Fourth Restatement of Property, and by Her Honour Judge Karen Walden-Smith on the role of the first instance judge in property cases. Sixteen further chapters address a wide range of issues, including the theory and taxonomy of land law, the re-evaluation of land obligations, the nature and operation of equitable property rights and shares, the role of property in commerce, comparative approaches to leases and trusts, and contemporary issues in land registration. Collectively, the chapters demonstrate the vibrancy, diversity and importance of property law and of current research in the subject."--Bloomsbury Publishing. FOREWORD PREFACE CONTENTS LIST OF CONTRIBUTORS TABLE OF CASES TABLE OF PRIMARY LEGISLATION TABLE OF SECONDARY LEGISLATION Part I: Modern Challenges in Property Law 1: Technology in Property: Putting You All on Notice I. Opening Remarks II. Technology in Property Litigation III. Technology in Conveyancing IV. The Tension V. Conclusion 2. Restating the Architecture of Property I. Introduction II. Architecture in Property Law III. Restating: The Process IV. The Stakes in Restating V. Conclusion 3. 'Judges are Human, Not Many People Know That': The Travails of the First Instance Judge I. Introduction II. Recent Changes in the Work of the First Instance Judge III. The Role of a First Instance Judge IV. Should Academics Pay More Attention to First Instance Decisions? V. Conclusion Part II: Property: Definition and Protection 4: Defending Property: Self-help Remedies, the Use of Force, and the Concept of a Property Right I. Introduction II. There is No Right to Recaption III. Policy-Ends Effected by Obligations, Not Property IV. Property, Obligations, and Values V. Conclusion 5: The Essence of Private Nuisance I. Introduction II. The Orthodox Conception of Private Nuisance III. The Physical Invasion View IV. Implications for Property Theory V. Conclusion 6: Redrawing the Law's Definition of Property in the Light of Contemporary Use of Urban Surfaces I. Introduction II. The Taxonomy of Law III. The Taxonomy of Property Law IV. Guerilla Gardeners, Graffiti Artists, and Park-Runners V. Conclusion: Is it Time for a New Approach to Defining Property? 7: Corporate Shares as Shares I. Introduction II. Land as the Paradigmatic Case of Property III. Shares as Property: Imitation, Mutation or Transformation IV. From Property to Procedure V. Shares as Shares: A Right in a Procedure VI. Conclusion 8: The Proprietary Nature of Title-based Financing Interests I. Introduction II. Title-based Financing Interests as a Form of Proprietary Disposition III. Title-based Financing Interests: Simple Ownership or a New Type of Property Right? IV. The Ways Forward? V. Conclusion Part III: Land: Relationships and Regulation 9: Remedies for Breaches of Rights to Light: Averting a Tragedy of the Anticommons I. Introduction II. Concerns about Easements of Light III. Remedies for Breaches of a Right to Light IV. Conclusion 10: Re-evaluating Recreational Easements - New Norms for the Twenty-First Century? I. Introduction II. Recreational Easements, the Sharing Model of Servitudes and Human Flourishing III. Anti-Fragmentation Strategies and Certainty and Predictability of Numerus Clausus IV. Dynamics of Human and Property Relationships and Conflict Between Dominant and Servient Landowners V. Ex ante Restrictions versus Ex post Regulation of Easements VI. Concluding Remarks 11: The Recognition of Covenants in Gross in New\xa0Zealand: A Dangerous Advancement? I. Introduction II. Covenants in Gross III. The Land Transfer Act 2017 Amends the Property Law Act 2007 IV. The Potential Problems Created by Covenants in Gross as Enacted V. The Numerus Clausus is Dead; Long Live Numerus Clausus VI. Conclusion 12: Security of Tenure in the Private Rented Sector in England: Balancing the Competing Property Rights of Landlords and Tenants I. Introduction II. The Background: The Private Rented Sector in the UK III. The Landlords' Perspective: Evidence from Scotland IV. The Tenants' Perspective: Property and Security of Tenure V. Balancing the Competing Rights of Landlords and Tenants VI. Conclusion 13: Long Leases and Affordable Housing: A\xa0Comparative Analysis of French and English Law I. Introduction II. The Development of the Clt Model in England and the Hybrid Nature of the English Lease III. The Development of the CLT Model in France IV. Conclusion 14: How is the Fit? The Regulation of Mortgages as Enduring Property Relationships I. Introduction II. Diverse Network of Sources III. The Mortgagee's Right to Possession and Mortgage Conduct of Business (Mcob) Rules IV. Interest Rate Hedging Product Mis-selling to SMEs V. Conclusion: Regulatory Challenges Part IV: Land Registration: Problems and Solutions 15: Updating Land Registration Law and Practice: Some Lessons from China I. Introduction II. Land Registration in China III. Lessons from, and for, English Land Registration IV. Conclusion 16: Death, Lies, and Land Registration I. Introduction II. Dealings with Registered Title Following the Death of a Registered Proprietor III. Co-Owned Land IV. Possible Solutions V. Conclusion Part V: Trusts: Nature and Operation 17: The Paradox of the Equitable Proprietary Claim I. Introduction II. Beneficial Interests and Third Parties: The Current Position III. The Significance of the Idea of Conscience IV. Conclusion 18: 'So How Should I Presume?': Loan, Resulting Trust, or Discharge of a Prior Obligation I. The Issue II. What is at Stake? III. The Presumption of Discharge of a Prior Debt or Obligation IV. The Presumption of Resulting Trust V. The Rule in Seldon v Davidson VI. Conclusion 19: Trusts and Legal Transplants: Lessons from Japan I. Introduction: Trusts and Transplantation II. Japanese Trust Legislation III. The Trust"s Effect on the Wider Japanese Law of Property IV. Legal Transplantation Assessed V. Doctrine and Context as Engines of Transplantation and Change VI. The Success of the Japanese Trust? VII. The Ineluctable Disruption of Legal Change VIII. Conclusion: Trusts are Not Special INDEX This book contains a collection of papers presented at the Twelfth Biennial Modern Studies in Property Law Conference held at University College London in April 2018. The conference and its published proceedings are an established forum for property lawyers from around the world to showcase the latest research. This collection includes a keynote address by Dame Elizabeth Gloster, former Vice President of the Court of Appeal (Civil Division), on technology in property law. It also includes plenary addresses by Professor Henry Smith on the architecture of property law and the challenge of compiling the American Law Institute's Fourth Restatement of Property, and by Her Honour Judge Karen Walden-Smith on the role of the first instance judge in property cases. Sixteen further chapters address a wide range of issues, including the theory and taxonomy of land law, the re-evaluation of land obligations, the nature and operation of equitable property rights and shares, the role of property in commerce, comparative approaches to leases and trusts, and contemporary issues in land registration. Collectively, the chapters demonstrate the vibrancy, diversity and importance of property law and of current research in the subject. -- Provided by publisher "This book contains a collection of papers presented at the Twelfth Biennial Modern Studies in Property Law Conference held at University College London in April 2018. The conference and its published proceedings are an established forum for property lawyers from around the world to showcase the latest research. This collection includes a keynote address by Dame Elizabeth Gloster, former Vice President of the Court of Appeal (Civil Division), on technology in property law. It also includes plenary addresses by Professor Henry Smith on the architecture of property law and the challenge of compiling the American Law Institute's Fourth Restatement of Property, and by Her Honour Judge Karen Walden-Smith on the role of the first instance judge in property cases. Sixteen further chapters address a wide range of issues, including the theory and taxonomy of land law, the re-evaluation of land obligations, the nature and operation of equitable property rights and shares, the role of property in commerce, comparative approaches to leases and trusts, and contemporary issues in land registration. Collectively, the chapters demonstrate the vibrancy, diversity and importance of property law and of current research in the subject."--Jacket flap