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Exclusion and Exclusivity in Property Law
- University of Toronto Law Journal
- University of Toronto Press
- Volume 58, Number 3, Summer 2008
- pp. 275-315
- 10.1353/tlj.0.0006
- Article
- Additional Information
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In this article, I propose a model for understanding the concept of ownership that I call the 'exclusivity model.' Like many of the contemporary critics of the 'bundle of rights' approach to ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of them, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the 'boundary approach' to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for the boundary approach to explain adequately the many subsidiary rights in things that coexist with the rights of owners. Indeed, I argue that when we look more closely at the structure of ownership in property law, its central concern is not the exclusion of all non-owners from the owned thing but, rather, the preservation of the owner's position as the exclusive agenda setter for the owned thing. So long as others – whether they be holders of subsidiary property rights or strangers to the property – act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda setter.