The notion of Property is evolving, and it is evolving quickly. In days gone by ownership was simple, you just put a fence around your piece of land. However, with the emergence of new types of property there has been a gradual shift in property theory to include the intangible, that which cannot be seen. This new property type still retains all the traits of traditional property in its bundle of rights which traits include manageability, benefit and alienation however it retains nothing of the physical nature of the traditional property. With these new emerging property rights, we investigate the law’s position on
these emerging types of property and their inherent bundle of rights. In 29BC Augustus Caesar returned to Rome from Egypt with a plan to lift the morale, social and economic standards of the people of Rome. He returned with a ‘liet motif’ a dominant idea of how to achieve his vision for a prosperous Rome, and that was to return property rights and laws to the city.
This may be argued by some historians as a self-preservation move as he had returned after a long and expensive campaign and may have enemies appear in his absence but Irrespective of his motives was the result, the removal of state-owned property and the first instance of a bundle of rights under the law. It is precisely these rights and the traits of these rights (Under Law) that have organically grown from the time of Caesar then past William the Conqueror to colonial radical title that property theory (Deep Property) aims to answer thus guiding lawmakers and regulators in this emerging space.
The first trait to be considered regarding property rights is the right to manage the property, as in you the owner of the rights may choose what you would like to do with the property exclusively so with an intangible deep property right like transferable development rights they are your rights exclusively you may deal with benefits of these rights as you see fit.
Secondly, the trait to benefit or derive income from the bundle of rights as in the context of carbon rights where an owner of a forest may receive an income from a carbon-producing business if he or she retains the green areas of the property in lieu of using it for agriculture. And the final trait is the ability to sell or pass on their interest in the property the ‘Alienation’ of the right is paramount to retaining its characteristics under the umbrella of the deep property rights even if the property is indeed intangible, as in the case of air space where for example an owner directly behind a beachfront property pays a fee to the beachfront owner for not developing his or her property to ensure that the property behind views remains intact. Therefore, within property theory (Deep Property) the existing property law framework allows lawmakers and regulators to assign a traditional bundle of rights or lawful relationship to an intangible thing by using the application of the traits of manageability, benefit and alienation (traditional Bundle
of Rights) to all things as a guide. The only limitation with this framework lies within the flexibility of courts and jurisdiction and their ability to keep pace with this emerging property space. This may in fact be the responsibility of the High Court of Australia as they act as the custodians of the constitution