Table Of ContentMODERN STUDIES IN PROPERTY LAW: VOLUME 8
This book contains a collection of peer-reviewed papers presented at the Tenth
Biennial Modern Studies in Property Law Conference held at the University of
Liverpool in April 2014. It is the eighth volume to be published under the name
of the Conference. The Conference and its published proceedings have become an
established forum for property lawyers from around the world to showcase current
research in the discipline. This collection refl ects the diversity and contemporary
relevance of modern research in property law. Incorporating a keynote address by
Sir John Mummery, retired Lord Justice of Appeal, on ‘ Property in the Information
Age ’ , a number of chapters consider the contribution of property law to issues
central to the human condition; the home, health and death. Other papers illustrate
an enduring need to question and explore fundamental concepts of the subject as
well as to consider the challenges of reforming the law. Collectively the chapters
demonstrate the vibrancy and importance of property law in dealing with modern
concerns across the common law world.
Previous volumes in this series:
Modern Studies in Property Law: Volume 1
Edited by Elizabeth Cooke
Modern Studies in Property Law: Volume 2
Edited by Elizabeth Cooke
Modern Studies in Property Law: Volume 3
Edited by Elizabeth Cooke
Modern Studies in Property Law: Volume 4
Edited by Elizabeth Cooke
Modern Studies in Property Law: Volume 5
Edited by Martin Dixon
Modern Studies in Property Law: Volume 5
Edited by Susan Bright
Modern Studies in Property Law: Volume 6
Edited by Susan Bright
Modern Studies in Property Law: Volume 7
Edited by Nicholas Hopkins
Modern Studies in
Property Law
Volume 8
Edited by
W B
ARREN ARR
OXFORD AND PORTLAND, OREGON
2015
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Preface
In April 2014, the Tenth Biennial Conference on Property Law was held at the Uni-
versity of Liverpool; the fi rst time the Conference has been hosted in the North of
England. I would like to thank the members of the Conference Editorial Board for
entrusting the Conference to me, and to Liverpool. Sited at the Mersey Maritime
Museum on the scenic Albert Dock, the Conference proceedings retained their inter-
national fl avour and the unique mix of conviviality, scholarly rigour and fascinating
academic debate that has been a hallmark of every Conference since its origins at the
University of Reading in 1996.
The Conference saw a welcome return of the Postgraduate Research Stream, inau-
gurated at the Ninth Conference at the University of Southampton, which took place
on the fi nal day and demonstrated that the future of the property law research is in
very safe hands. New this year was the introduction of ‘ Work in Progress’ s essions
for academics to discuss and work through new ideas, short of presenting a full
paper. These sessions were very well attended and received, and it is hoped will
become a permanent feature of the Conference going forward.
This volume, the eighth such edited collection, presents a wide spectrum of topics
across the length and breadth of property law discourse. No theme for the Confer-
ence was suggested, but the papers have usefully grouped themselves into several
topics with numerous, interlinking themes. Every paper in this volume has been
subject to peer review, and a very real debt of gratitude is owed to those anonymous
referees who have given freely of their time and attention, and have enhanced the
quality of the volume in consequence. To introduce these papers, I can do no better
than deliberately ‘ borrow ’ words from the editor of the previous volume, Professor
Nicolas Hopkins, who put is so well: ‘ Collectively, the contributions to this volume
demonstrate the breadth, depth and variety of modern property law scholarship ’ .
Each chapter deserves to be read in its entirety, and what follows is not a complete
description of the contents of this volume, but instead just enough to whet the aca-
demic appetite as to the coverage of topics by the various authors.
This volume opens with the text of the keynote address, given by Sir John M ummery.
This fascinating speech, reproduced here with only minor amendments and additions
for publication, explores the concept of property in information; a key driver of mod-
ern commerce and communications. It suggests a cautious approach to recognising
property in information, and sets the tone for the other two contributions in this sec-
tion, which deal with reform and legal process. Andrew Stevens refl ects broadly on the
impact of the Scottish Law Commission on Property Law, while John Mee draws out
cautionary tales for would-be reformers in the narrower, but very important, reforms
of the law of prescription in Ireland.
Part II contains essays relating to the planning law in England and Wales.
Charles Mynors calls for a (much needed) simplifi cation of the planning processes
and presents an important overview of the diffi culties with the current systems.
vi Preface
Barbara Boguz considers the balance between societal and economic interests in land
regulation, and suggests that the state (and law) is more concerned with the former,
not the latter, as issues such as regulating open spaces tend to fall primarily to private
citizens. Finally in this section, Adam Barker considers whether there is any sound
reason to allow some licensees not in actual possession of land to bring actions
for recovery of land, re-investigating the decision in Manchester Airport v Dutton
[2000] 1 QB 133 and its impact for developers of land who are often contractual
licensees themselves.
Adding an international fl avour, Part III considers property law and provision of
property on death. Heather Conway ’ s paper introduces this section, and investigates
claims made by fi nancially independent children to contest distribution of property
by will or intestacy in England and Wales and Northern Ireland. Fiona Burns consid-
ers the use of statutory wills in England and Australia in dealing with the property
of the mentally incapacitated, who otherwise would be unable to make wills for
themselves. Si ô n Hudson and Brian Sloan explore the limits of mutual wills in Eng-
land and Wales in informal care situations and the fetters on testamentary freedom
involved. Caryl Yzenbard brings this section to a close with a consideration of the
distribution of property on intestacy in the United States.
Part IV, loosely termed property and ownership, draws together discourse across
some baseline issues of property law from different perspectives. Chris Bevan con-
siders the role of the ‘ home ’ in modern property law, particularly after the two key
decisions of the English Supreme Court in Stack v Dowden [2007] 2 AC 432 and
Jones v Kernott [2012] 1 AC 776. Alison Clarke considers how communal land and
resource rights should be accommodated within systems which record land rights
on a register; a truly international exploration, but with a particular emphasis on
sub-Saharan Africa. Jill Morgan conducts a comparative study of the US and UK
approaches to recognising property ownership in mineral rights such as carbon cap-
ture and storage; essential developments for environmental storage of dangerous
substances and gases. Chris Willmore investigates whether leasehold structures, par-
ticularly discontinuous leases, can be repurposed to enable voluntary sector partner-
ships and collaboration. Refreshing perspectives on the norm continue as Graham
Ferris refl ects on formalities through the lens of ‘ speech acts ’ , which it is agued may
add clarity to analysis of some legal problems while Junita Roche conducts an explo-
ration of the issues of deemed tenancies for life raised by the UK Supreme Court in
Mexfi eld v Berrisford [2012] 1 AC 955 by an historical analysis of what the author
terms ‘ constitutional land law’ and looks to the very roots of the foundation of our
system in so doing.
Last by but no means least, the fi nal part of this volume considers specifi c issues
relating to title. In turn, Simon Cooper considers the important issue of reliability
of registered title, thought to be a cornerstone of the English system; while Lu Xu
builds on research into the English version of commonhold, a system that has failed
to gain much traction in the years since its introduction. Hanri Mostert and Leon
Verstappen close this section, and the book, with an international dimension, sug-
gesting that two apparently divergent law systems seem to be converging in their
approaches to dealing with problems imposed by adherence to the ‘ numerus clausus ’
principle; namely rigidity and uncertainty.
Preface vii
I would like to extend my thanks to all contributors, both to the Conference and
this volume. The Biennial Conferences continue to go from strength to strength,
thanks to the energy and hard work of all those involved. I would like to thank
Richard Hart and his team at Bloomsbury Publishing, for their continued support
through the publication of this edited collection.
On a personal note, I would like to thank Sir John Mummery for agreeing to give
the keynote speech at the Conference, and for his continued support of the work of
the Charity Law and Policy Unit. At Liverpool Law School, I would like to thank
Rachel Barrett, Management Services Team and Charlotte Hood-Fredriksen, one of
my current PhD students, for handling the administrative burden of the organisation
and smooth running of the whole Conference with the utmost effi ciency and good
humour. I am extremely grateful to Dr John Picton, Lecturer in Law for his stew-
ardship of the PGR Stream of the Conference. Special thanks go to my friend and
colleague, Professor Debra Morris, for her invaluable help and support throughout
this and other academic endeavours. Liverpool played host to an International Char-
ity Law Symposium under Professor Morris ’ leadership, directly after the Property
Conference, the outputs of which can be found in a special issue of the Charity Law
and Practice Review . Thanks also to Dr Karen Atkinson, Research Associate to the
Charity Law and Policy Unit for her invaluable assistance in the production of this
manuscript.
I am sure you, the reader, will agree that the contents of this volume collectively
demonstrate that property law research is in an extremely rude state of health and
I am already looking forward to the Eleventh Modern Studies in Property Law Con-
ference, which will take place at the Queen’ s University of Belfast in 2016.
Warren Barr
Professor of Law, Charity Law and Policy Unit, University of Liverpool
January 2015
