Relationship Property and Trusts: the "Bundle of Rights" Theory?

<p>This dissertation examines the “bundle of rights” theory as it meets at the intersection of trust and family property law. Drawing on conceptions of property, the principles and purposes of the Property (Relationships) Act and contrasted with trust law, a theory is adopted to explain why family property law has presumptive power over trust principles. Orthodox trust principles are discussed to explain why trust assets are protected from third party claims, the importance of the laws of powers and fiduciary obligations, the problems created by settlor or appointor control and the reason a “controller” is a beneficial owner of trust assets. The dispositions of relationship property to trusts and the limits on compensatory payments are discussed alongside the significance of the abolition of gift duty, other statutory remedies and judicial responses. Case authorities are explored, similarities with Australian alter ego trusts are drawn upon, and the application of the “bundle of rights” theory is discussed with reference to the valuation of debts and occupation orders. The dissertation concludes that the “bundle of rights” theory draws on an expansive meaning of property, it is a principled approach but confined to the Act.</p>

Relationship Property and Trusts: the "Bundle of Rights" Theory?

<p>This dissertation examines the “bundle of rights” theory as it meets at the intersection of trust and family property law. Drawing on conceptions of property, the principles and purposes of the Property (Relationships) Act and contrasted with trust law, a theory is adopted to explain why family property law has presumptive power over trust principles. Orthodox trust principles are discussed to explain why trust assets are protected from third party claims, the importance of the laws of powers and fiduciary obligations, the problems created by settlor or appointor control and the reason a “controller” is a beneficial owner of trust assets. The dispositions of relationship property to trusts and the limits on compensatory payments are discussed alongside the significance of the abolition of gift duty, other statutory remedies and judicial responses. Case authorities are explored, similarities with Australian alter ego trusts are drawn upon, and the application of the “bundle of rights” theory is discussed with reference to the valuation of debts and occupation orders. The dissertation concludes that the “bundle of rights” theory draws on an expansive meaning of property, it is a principled approach but confined to the Act.</p>

Introduction

The subject of the book is the history of citizenship in its twofold meaning: as a legally defined, formal status of belonging to a (nation) state, i.e. nationality, as well as a bundle of rights and obligations associated with the status of citizenship. The book reveals the transformation of citizenship by examining the connection between its two aspects and the struggles for belonging behind them. Citizenship in this broad sense is examined in its development since the beginning of the twentieth century while concentrating on five key questions: First, to what extent is citizenship a measuring rod for inclusion and exclusion? Second, does the change of politico-social constellations better explain the development of citizenship than idioms of nationhood? Third, does citizenship confirm the thesis of a legal development gap between Western and Eastern Europe? Fourth, how is citizenship in Europe shaped by repercussions of European colonialism? Fifth, how does citizenship serve as a legal tool to establish social ranking of groups, particularly of women and Jews, in European societies?

Unravelling incoherence: utilizing property theory to challenge the classification of animals as chattels

In law, domesticated animals are chattels, the object of property rights. This classification does not reflect the characteristics and capacities of nonhuman animals that make them unlike other objects of property. The categorization also fails to reflect widely held beliefs that animals deserve some moral consideration. In recognition of these difficulties, a literature has developed to advance the case for animal rights and alternative frameworks for animal protection. Yet the literature has neglected one logically antecedent issue: the normative suitability of property status itself. The property paradigm provides a straightforward legal mechanism for the exercise of control over others, as seen in its historical influence over the treatment of children and married women; yet in the animal context, its suitability has remained unscrutinized. This article does not rely on moral objections to the classification of animals as property. It focuses instead on reasons of legal theory that challenge this hegemony. Consideration of animal welfare legislation provides a preliminary indication that animals’ property status is unsuitable. Regardless of whether property is conceived as the right to exclude or a ‘bundle’ of rights, protection of the interests of objects is inconsistent with other frameworks that regulate proprietary relations. Moreover, a comprehensive examination of traditional justifications for the private property institution reveals that animal property does not serve the purposes for which the institution was established. These analyses expose the normative incoherence of the classification of animals as chattels.

Explainer: Taxing rezoning windfalls (betterment)

In its 2021 budget, the Victorian government announced a new tax on windfall land value gains from rezoning (also known as a betterment tax)This note explains the economic principles behind such a tax, the benefits of applying such a tax, implementation issues that need to be considered, and lessons from the operation of similar taxes elsewhere.Property is, conceptually, a finite bundle of rights. Rezoning grants additional property rights to owners of an existing set of property rights. Those new rights could instead be sold at a market price. A tax on the value gain from rezoning at anything less than 100% is equivalent to selling the new property rights from the community to the current property owner at a discount. Just like selling other property rights from the public to the private sector does not add to market prices in property markets, nor does selling rezoning rights.A tax on rezoning windfalls is uncommon not because it is a bad tax but because it is a good tax.

Towards sustainable property? Exploring the entanglement of ownership and sustainability

This article explores the relation between ownership and sustainability on a conceptual level. It specifically examines different imaginaries of sustainable property by asking how private property rights and their restrictions are conceptualized as instruments for sustainability. To do so, conflicting notions of property that underlie Western jurisprudence and political theory are contrasted. This brings us to the identification of two major traditions in property thought that build on atomist or relational conceptions of society and property, respectively. Property might be conceived as an owner’s exclusive control over an object, or as a ‘bundle of rights’ that comprises entitlements, restrictions, and obligations to various actors. Largely within the paradigm of modernization as a trajectory of sustainability, these two fundamental traditions in property theory relate to different approaches to encode sustainability into property law: i) propertization, i.e. the extension of private property forms, as in the case of carbon emissions trading schemes; ii) the acknowledgment of social and environmental obligations inherent to property, illustrated by the social obligation norm in German law.

Entropy of property in Western and Russian legal doctrine and practice

The subject of the study is a phenomenon of an “entropy” of property, its interpretation, socio-economic conditionality, genesis of its development in European and Russian doctrine, reflection of a construct of “separated” property in the legislation. “Entropy” of property is a situation when both entities are owners, but in different areas of relations: the first person is the owner in relation to third parties, and the second-in relation to the first The goal of this scientific research is to find out reasons of the existence of phenomenon of “entropy of property” in European and Russian legal doctrines, to identify common and specific features of this phenomenon. Methodology. The authors use the general scientific method, including dialectics, comparative analysis, formal logic, historical method. A number of specific methods pertaining to the legal science were used as well: the formal dogmatic method was applied for analysis of ownership within the institute of property rights; the logical legal method was applied to study general tendencies of development of the institute of property rights; the legal comparative method was used to study European and Russian legislation on ownership and other property rights. The main scientific results. The Western legal doctrine of “entropy of property” has quite a long history of development, unlike the Russian. Specific features of the Russian doctrine are result of its historical, political and cultural characteristics. The phenomenon of “entropy of property” has both positive and negative consequences, which requires pluralistic approach to its assessment. “Reunification” of ownership rights on the land plot and other objects located on it, is a result of socio-economic and legal factors and deserves positive assessment. Property rights as elements of titular possession are not based only on law, but may be created by contract as well. Conclusions. The European and Russian legal doctrines on the “entropy of property” have both common and specific features. The common features are: existence of “absolute” ownership, limited property rights, trends of reunification of “separated” property etc. The specific features are: absence of “trust” in the Russian legal system; excessive fragmentation of right of ownership as a large “bundle” of rights; absence of situations when one person may simultaneously hold statuses of owner and holder of a limited property right in the Russian legislation.