Property: Who Gets to Say No

A man puts up a fence. Another man, three streets away, plants his flag on a mountain and says he owns it. A farmer in Oaxaca can pass his field to his daughter but not sell it to a stranger. A songwriter's lyrics are protected for seventy years after she dies in much of the world, and for a hundred in Mexico. Each of these is "property", and each works differently. A law graduate hears the word mine and asks, almost without noticing: mine against whom, for how long, and who says so?

Every society must answer how people get to use things that other people also want. Allow no exclusive claims and nobody will invest in a field or a house. Allow too many, with no limits, and some people end up with nothing and the common good is lost. Property law is the long, patched-together answer. It is also where the world's legal families, and the world's peoples, differ most about what a "right" even is.

This describes how legal systems work. It isn't legal advice; laws differ by country and change.

The common ground: who gets to say no?

Strip away the vocabulary and every system asks the same questions about a thing. Who may use it? Who may stop others? How can the right be passed on, and how can a buyer be sure the seller really has it? What happens when someone has treated it as theirs for a long time? And when can the state, or the community, override the owner? The families answer these with different instincts: the common law with a patchwork of "estates" and decades of judicial gloss; the civil codes with Roman-law ownership (dominium, propiedad) as a single, strong right and a short list of lesser "real rights" such as usufruct and servitudes.

What ownership is: a bundle with duties

Ask a layperson what ownership is and they say "it's mine". A lawyer says it is a bundle of separate rights that can be held by different people. The Oxford jurist Tony Honoré, in a 1961 essay, listed the "standard incidents" of full ownership: the rights to possess, use, manage, take the income, transfer, leave to heirs, and use it as security, along with the duty not to use it to harm others and the liability to have it taken for a debt. Each can be handed out separately: a tenant gets possession and use, a lender gets security, a trust gives income to one person and control to another.

The codes begin with a strong right and then qualify it. The French Code civil (art. 544) describes ownership as the right to enjoy and dispose of things in the most absolute manner, provided no use is made that laws or regulations forbid. Germany's BGB §903 lets the owner deal with a thing as he likes within the law and others' rights, and the Grundgesetz (art. 14) adds that "property entails obligations": its use should also serve the public good. Mexico's Constitution (art. 27, 1917) goes furthest: land and water within the territory belong originally to the Nation, which may transmit ownership to individuals as private property, and may impose limits on it for the public interest. Whichever the starting point, the endpoint is the same: no owner has an unlimited right.

Read across: the mortgaged home-owner has most rights but not free ones, since the lender stands behind every sale. The ejidatario, a member of a Mexican ejido (see below), has strong use and inheritance rights but limited power to sell. None of the four holds exactly "ownership" in the layperson's sense, and every one holds something real.

Possession and the clock: how a squatter can become an owner

Possession, holding and using a thing as if it were yours, is the oldest evidence of ownership, and law treats it generously. Anyone who is in peaceful possession is protected against being dispossessed by force, even if they have no title, and with enough time possession can turn into ownership. The common law calls this adverse possession, the civil law usucapion (usucapión, prescription acquisitive). The reason is practical: records get lost, claims go stale, and a society needs someone to be the owner of the land that people have in fact been using for decades.

The time required depends on the country and on whether you started in good faith. In England and Wales, 12 years for unregistered land; for registered land (Land Registration Act 2002), after 10 years the squatter may apply, the registered owner is notified, and an objection usually stops the claim. France requires 30 years, or 10 with a just title and good faith. Argentina's 2015 code: 10 years with good faith and a just title, otherwise 20. Chile: 5 and 10. Mexico, as commonly stated: 5 and 10. In the US each state sets its own rule, from about five to forty years. All demand that the possession be open and continuous, and in the common law "hostile", meaning without the owner's permission.

At 11 years the starting settings show how the systems part: England's unregistered rule has not yet run (12), France needs 10 if the possessor had a flawed deed in good faith and so can claim, Argentina's short period (10) has passed, and so have Chile's and Mexico's (5). Change to "no title" and most need many more years.

Registers: who owns it when the paper lies?

How can a buyer know the seller owns the land? There are two basic answers. In a deeds system, the buyer follows the chain of past transfers (the US keeps public records of deeds, and buyers rely on title searches and title insurance). The rule is the old Roman one, nemo dat quod non habet ("no one gives what they do not have"): a forged deed passes nothing, however many honest buyers come after. In a title register, the state keeps a register that says who owns each plot, and the register itself creates the right. Germany's Grundbuch is the model: ownership transfers when the new owner is entered (BGB §873), and under §892 a good-faith buyer can rely on the register even if it is wrong, unless an objection is recorded or the buyer knows it's wrong. Sir Robert Torrens introduced the same idea to South Australia with the Real Property Act 1858, and the "Torrens system" spread across Australia, New Zealand, much of Canada, Ireland, Singapore and beyond. England and Wales moved to a state register over the twentieth century, and the Land Registration Act 2002 extended it. France, by contrast, records deeds through a notary system (publicité foncière) but does not guarantee title, apart from Alsace-Moselle, which kept its German-era land register. In Chile the Conservador de Bienes Raíces is where an inscription transfers real-estate ownership; the property registries of Spain and Mexico record and protect rights.

The tension is this: the more the register is protected, the safer a buyer is, and the more the true owner is at risk if someone forges. Take the classic case. Alice owns a house. Mallory forges a deed giving it to Bob, who is entered on the register. Bob sells to Carol. Who owns it?

The commons: when everyone's property is no one's

In 1968 the ecologist Garrett Hardin published "The Tragedy of the Commons" in Science. Picture a pasture open to all herders. Each herder gains the whole benefit of adding one more cow but shares the cost of overgrazing with everyone else. So each adds a cow, and together they destroy the pasture. Hardin's conclusion was that open access leads to ruin unless resources are privatised or governed by the state.

Elinor Ostrom's life's work, Governing the Commons (1990), and her 2009 Nobel prize in economics, showed the argument leaves out a third path. Real commons are rarely open to everyone; they have defined boundaries and members. Communities from the Swiss Alps to Japanese forests and Spanish irrigation huertas have run commons for centuries with their own monitoring and penalties. The conditions that help: clear boundaries, rules that fit local conditions, a say for users in making rules, monitoring, graduated sanctions, and a recognised right to organise. Hardin himself later said he should have called it the tragedy of the unmanaged commons. The lesson for law: "private vs public" is a false choice, and the third option, community property, needs the legal system to recognise it.

The model is simple. Suppose each cow yields 100 minus the number of cows (the pasture thins as it fills) and costs 20 to keep. The profit per cow is then 80 − N, and the total is N × (80 − N).

The total profit peaks at 40 cows, at 1,600. Open access pushes the herd to 80, where the profit is zero: every herder works for nothing. At 40 cows, the private gain from adding the 41st is still positive (39) while the gain to the group is negative (−1): the temptation is built in. Rules, or an owner, remove it.

Intellectual property: ownership of ideas, with an expiry date

Property in things that can be copied is a modern invention, and a bargain. A copyright protects an author's expression (not the idea) and, under the Berne Convention (1886), lasts at least for the author's life plus 50 years. Most of the world has lengthened this: the EU, Argentina, Brazil and Chile use life plus 70; Colombia 80; Mexico 100 for works still protected when its term was extended in 2003; India 60; China 50. A patent gives a monopoly on a new invention, normally for 20 years from filing (TRIPS, 1994), in exchange for publishing it. Trademarks protect names and logos and can be renewed for ever while used. The deal is a trade: society grants a temporary monopoly to reward creators, then the work joins the public domain. How long the term should be is a live argument: critics say extending terms, as the US did in 1998, rewards no new creation, while defenders point to longer lives and the wish to match trading partners.

For an author who died in 1980, the term is over in the EU, Argentina, Brazil and Chile at the end of 2050 (free from 2051), in Mexico at the end of 2080 (free from 2081). That is the difference between a one-line law and a century.

Indigenous and communal land: ownership that isn't one person's

Much of the world's land is held neither by a private owner nor by the state but by a community. In Mexico the ejido and the indigenous comunidad are the clearest example. After the Revolution, the 1917 Constitution (art. 27) allowed the redistribution of large estates to peasant communities, and the programme grew under President Cárdenas from 1934. The land belongs to the community, and its members, ejidatarios, hold rights to use their parcel and to pass it on. Selling was restricted until 1992, when art. 27 was amended to allow ejido land to be privatised under conditions, together with a new Agrarian Law and a titling programme (PROCEDE). Official figures from the National Agrarian Registry put social property (ejidos and agrarian communities) at around half of Mexico's territory, about 100 million hectares of 196 million (about 50.7%, the registry's 2017 count). The 1992 reform is still argued about: its supporters said titles would let farmers borrow and invest, critics said it opened the door to land sales and rural dispossession.

Elsewhere the same question arises under different names. Colombia's constitution recognises collective resguardos; Brazil's 1988 Constitution recognises indigenous peoples' original rights to the lands they traditionally occupy, and the "marco temporal" dispute over whether only land occupied in October 1988 counts is still moving through the courts and the legislature. The Inter-American Court of Human Rights held in Awas Tingni v Nicaragua (2001) that communal indigenous property is protected as property. In Australia, Mabo v Queensland (No 2) (1992) rejected the idea that the continent was terra nullius and recognised native title, and Canada's Supreme Court made the first declaration of Aboriginal title in Tsilhqot'in Nation v British Columbia (2014). The UN Declaration on the Rights of Indigenous Peoples (2007) states the principle.

Does formal titling help the poor? The Peruvian economist Hernando de Soto argued in The Mystery of Capital (2000) that giving informal holders legal title unlocks capital, because a house with a title can be mortgaged. Others found it is not so simple: a study of squatters in Buenos Aires by Galiani and Schargrodsky found titling raised investment in housing but did not increase access to credit. The honest summary is that titles help, but not by themselves.

What a graduate just sees

• "Ownership" is a bundle: possess, use, exclude, lease, sell, bequeath, mortgage. Ask which sticks someone really holds.
• Every property system balances the owner against the public: "property entails obligations."
• Long, open possession can create ownership, because societies would rather settle who owns land than leave it open for ever.
• A register trades the safety of buyers against the safety of true owners; ask what it protects.
• Open-access resources decay, but the cure isn't only privatisation or the state: communities with boundaries and rules can manage a commons.
• Intellectual property is a time-limited deal, and the length of the time is a political choice that differs by country.
• A large share of the world's land is communal or customary, and law has had to learn to recognise it.

Where it shows up next

• Constitutional Law (35/03): property clauses, such as the compensation owed when the state takes land, are among the oldest constitutional rights.
• Administrative Law (35/09): zoning, planning permission and expropriation are the daily contacts between owners and the state.
• International Law & Human Rights (35/10): indigenous land rights, and the treaties (Berne, TRIPS) that fix intellectual-property terms.
• The real world: a mortgage and a title search, a tenant's deposit, an app's licence terms, a village's forest rules, and the date a song enters the public domain.

If you want to go deeper

• 📘 Textbook. Jesse Dukeminier, James Krier, Gregory Alexander and Michael Schill, Property (Aspen/Wolters Kluwer), the standard US casebook.
• 📘 Textbook. Kevin Gray and Susan Francis Gray, Elements of Land Law (Oxford University Press), the standard English text.
• 📘 Gentler. Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990), written for a general academic reader and full of real cases.
• 🎧 Free talk. Ostrom's 2009 Nobel lecture, "Beyond Markets and States", on the Nobel Prize site.
• 🌐 Free reference. The Cornell Legal Information Institute's Wex entry on property.