The Dynamics of Enduring Property Relationships in Land
| Date | 01 January 2018 |
| Author | Susan Bright,Sarah Nield,Sarah Blandy |
| DOI | http://doi.org/10.1111/1468-2230.12317 |
| Published date | 01 January 2018 |
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The Dynamics of Enduring Property Relationships
in Land
Sarah Blandy, Susan Bright and Sarah Nield∗
This article proposes a new way of looking at property relationships that will enrich our un-
derstanding of how they operate. It focuses on property rights in land which are consensual
in origin, although this approach could usefully be applied both to non-consensual property
relationships and to other property types. Recognising both the temporal and spatial dimen-
sions of land, the dynamics approach reflects the fact that most property relationships are lived
relationships, affected by changing patterns and understandings of spatial use, relationship needs,
economic realities, opportunities, technical innovations, and so on. Although evolving respon-
sivelyto accommodate chang ing uses and new rights-holders, these relationships are nevertheless
sustained and enduring. The dynamics lens acknowledges the diverse range of legal, regulatory,
social and commercial norms that shape property relations. Our approach also explores how
far the enduring, yet dynamic, nature of property relations is taken into account by a range of
decision-makers.
INTRODUCTION
In this article we promote a new way of looking at property relationships that
explores the heart of property: the dynamics of enduring property relationships.
These dynamics are foundational to property relations and an appreciation of
them enriches our understanding of the nature and meaning of property. Al-
though this article focuses on property relationships in land, this schema could
be usefully applied to other types of property, for example, intellectual or en-
vironmental property. In outline, our approach acknowledges the broad range
of legal, regulatory, social and commercial norms1that touch on property re-
lationships and recognises that they are not rigid but evolve responsively to the
∗Respectively, Professors at the University of Sheffield, University of Oxford, and the University
of Southampton. We wish to acknowledge the invaluable contributions both made by those who
attended the MLR funded seminar held at New College, Oxford in May 2016 entitled ‘The
Dynamics of Enduring Property Relations’ and the critical friends to this project who commented
on an early draft. Attendees and critical friends include: Gregory Alexander, Jane Baron, Helen Carr,
Hugh Collins, Hanoch Dagan, Rashmi Dyal Chand, Lorna Fox O’Mahony, Peter Gerhart, Douglas
Harris, Michael Heller, Caroline Hunter, Bettina Lange,Antonia Layard, Frankie McCarthy,Timothy
Mulvaney, Eduardo Pe˜
nalver, Joseph Singer, Laura Underkuffler, Andre van der Walt, Eileen Webb
and Lisa Whitehouse; Judge Elizabeth Cooke, Alan Jenkins DJ, Sir Alastair Norris J, Sir Nicholas
Underhill LJ and Gary Webber. Professor Roger Halson kindly shared expertise on contract theory.
Professors Alison Clarke and Nicholas Hopkins wereclosely involved in the early development of our
ideas until other projects took their attention; we fondly recall our lively discussions, with gratitude.
Thanks are also due to the anonymous reviewers. Views, errors and omissions remain our own.
Unless otherwise stated, all URLs were last accessed 12 January 2017.
1 The term ‘norm’ is commonly used in two different senses: the first, meaning values or higher
principles, is the sense in which most property law scholars use the term; the second, meaning
practices or customs, is the sense in which the term is used by social scientists. In this article
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited. (2018)81(1) MLR 85–113
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The Dynamics of Enduring Property Relationships in Land
spatial, temporal and lived dimensions of property in land. This sense of change
over time, of ebb and flow, reflects the enduring nature of property relation-
ships. The dynamics approach recognises that property relationships are lived
relationships that are sustained by their evolution over time to accommodate
changing patterns and understandings of spatial use, new rights-holders, re-
lationship needs, economic realities, opportunities, technical innovations, and
so on.
It may be helpful at this stage to provide a practical illustration. In a block
of flats, there will be a large number of persons who possess property rights:
the building owner, the individual unit-owners, renters, mortgagees, and so
on. The title deeds, buttressed by property law, explain the various rights
and responsibilities as between right-holders, rights that are anchored by that
documentation for the duration of a particular property right. The picture on
the ground will, however, be more complex. The dynamics approach involves
examining the relationships between these persons, which means going beyond
traditional property law approaches. There may, for example, be no direct legal
relationship between the occupiers of different flats and yet in practice they
may develop understandings about how communal spaces in the block can be
used. These understandings may be at odds with the wording in title deeds, and
yet the occupiers regard them as binding, in some manner, on them and even
on later occupiers. The occupiers may also recognise that rather than pursuing
the self-interested individualism generally generated by the title deeds, it is
necessary to develop a more collective and co-operative way of living to make
the building ‘work’. Further, these understandings may change over time. Our
schema draws attention to this variety and fluidity, and in particular draws out
the relational, that is the contextual and ‘between persons’ relations, recognising
that these property relationships are in part socially constructed.
The temporal focus of the dynamics approach is on property relationships
across time rather than those existing at a unique point in time. Property law
has of course always incorporated a temporal element: a lease is a time-limited
property right; trusts make provision for future interests. However, the focus
here is not on how time defines and separates doctrinal interests in land but
instead on how, within the context of a given property relationship, the nature
of that relationship may be shaped and re-shaped and yet sustained over time.
To adapt an observation made about the idea underlying relational contract
theory (RCT), we are looking not at ‘one-night stands’ but at marriages,2and
then not at the ceremony itself but at the shared lives that follow.
In terms of methodology, our analysis is from the perspective of legal realism
rather than legal formalism, that is, one that provides a realistic account about
what parties and decision-makers do and how they behave. In doing so, we
draw on elements of doctrinal, empirical, socio-legal and realist methods.
‘norm’ is used in both these accepted senses, but we hope that the context will make clear
which meaning is intended. When referring to everyday practices, we generally use the term
‘self-generated norm’.
2 R. Gordon, ‘Macaulay, Macneil and the Discovery of Solidarity and Power in Contract Law’
[1985] Wis L Rev 565, 569.
86 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(1) MLR 85–113
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