REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01799.x |
| Published date | 01 January 1990 |
| Date | 01 January 1990 |
REVIEWS
W.
T.
Murphy
and Simon
Roberts, Understanding Property
Law,
London: Fontana,
1987,
215 pp, pb
f4.95.
We take it for granted that land is to be bought and sold. We fiddle about at the boundaries
with security of tenure and rent control and we place some controls on mortgages,
yet
by and large we accept as natural the buying and selling of the ground under our feet
and the roofs over our heads. The possibility that title in English property law, at least
as seen from the historical perspective stressed by
Understanding Property
Law
(hereinafter
‘UPL’) is actually based on legalised theft is not generally something that surfaces in Land
Law courses. (The exception of course is the law relating to adverse possession, where
suddenly wrong becomes right after all.)
In
general, instead of thinking about what property
means, students are asked simply to understand Property Law. And that takes some doing.
The main saving grace is that the subject is supposed to have some relation to what
lawyers actually do (how they make money). But even this can be completely baffling.
Do
lawyers still make good incomes on dispositions of property for lives in being plus
21
years and periods of gestation, with gifts over for unborn spouses? Did they really
ever draft documents purporting to tie up the precious family estates for a couple of
generations and then go to court with a pack of lies about who owns the beloved inheritance
in order solemnly to defeat what these same lawyers, at their client’s behest, had solemnly
drafted? Was Leicester Square worth preserving anyway?
While recognising that the inheritance of a subject difficult to teach can never simply
be overcome, UPL tries to ‘escape’ from much of the worst that besets the teaching of
Land Law. UPL is a genuine attempt to put some intellectual
standing
into the
under
appreciated possibilities of the study of Property Law. Recognising the difficulty students
have when they study this subject (by which UPL largely, but not entirely, means Land
Law) the book argues that the subject can be approached only via a grasp of its historical
determinations. But this is not history after the fashion of Megarry
&
Wade or Cheshire
&
Bum. UPL tries to take account
of
the real interests of
real
students. The ‘big’ books
insert an unbelievable number of (seemingly) irrelevant facts into an equally unbelievable
number of pages. ‘History’ in UPL terms is something different from the account in most
Land Law texts. For UPL the history of legal practice becomes the central focus. UPL
puts the conveyancers back where they belong in Land Law, as the agents responsible
for what has been regarded as both an ungodly jumble and a triumph of human ingenuity.
As
UPL claims: one must resist the temptation to ‘exaggerate the importance of judges’
(p26). If I might put it this way: it was the conveyancers who responded to the conceived
needs of property owners. The judges merely responded to the received words of their
conveyances. The conveyancers then completed the circle by rewriting the perceived words
of the judiciary back into their conveyances. And how ungrateful the public are when
they misconceive the beneficial effects of all this.
But this splendid circular process has an unfortunate consequence for students. The subject
gets harder to understand
because
of the double result of this legal concentricity; conveyances
get longer and more technical. They get longer because lawyers feel that they must insert
all words and phrases judicially approved into their conveyances, whether relevant or not,
just
in
case. They didn’t call a ‘house’ a ‘house’; they called it a ‘house, messuage, tenement,
dwelling place, and curtilages without outbuildings’ etc. And conveyances get more technical
because phrases no longer mean what the lay person might reasonably think they mean.
They now mean what a lawyer says a judge says that previous generations of conveyancers
meant by them. And of course in a system where payment was directly proportionate to
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