Limits on Property

Conceptualizing property as a dynamic concept presupposes that property law is also dynamic, or, in other words capable of adapting to changes in the property relationship. If we are to say that the nature of property changes with time, we are also saying that the law changes in order to accommodate different types of subjects, objects and functions of property.

In this respect, two important questions arise when discussing the changing nature of property and the adaptability of law to changes in the property relationship.

First is property law readily capable of admitting new types of subjects, objects and functions of property?

Second, are there any limitations on the extent to which the idea of property can change? The answers to these questions are important in assessing how far the nature and idea of property can change and be accommodated for in law.

Invariably, new social, economic and technological advances will cause the property relationship to change overtime. Land may have been the most prized resource in times gone by; however, an increasing amount of new resources have raised the question whether they are capable of being the objects of property. Material resources such as information and body parts have in recent times begged the question whether they are capable of being the subject-matter of ownership. There are also debates as to whether benefits of a very intangible nature can be regarded as objects of the property relationship. Given that property is an important aspect of individual liberty and security, can forms of wealth which flow from the government in the form of welfare benefits be regarded as property of an individual? These are just some of many different forms of resources or objects that continue to raise debates as to whether they fall into the category of property. In order to make sense of the extent or limits of private property one needs to establish whether property law has a defined notion of what constitutes property and its extent.
The House of Lords in National Provincial Bank LTD Ainsworth explained the hallmarks of a property right. Here, in assessing the rights of a wife in the matrimonial home where title was solely in the name of her husband , Lord Wilberforce made a statement , which to a large extent continues to provide the model upon when a right will be regarded as property. Lord Wilberforce commented that before a right or interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable, by third parties, capable in its assumption by third parties and have some degree of permanence or stability. There appears to be one central characteristic of property from this statement and that is transmissibility.