by Dr Susan Farran, Northumbria University
At the time of writing the Commonwealth games are in progress on Australia’s Gold Coast, which reminds me that it was rumoured that ‘parkour’ or freerunning (‘an athletic activity in which the participant seeks to move quickly and fluidly through an area, often an urban locale, by surmounting obstacles such as walls and railings and leaping across open spaces, as in a stairwell or between buildings’ [the free dictionary]) might be nominated as an Olympic sport. This would be an interesting badging of acceptance of an activity that can, in some forms, involve trespass, nuisance, invasions of privacy and disregard of the most fundamental aspect of property rights: excludability.
Taking over the use and benefit of surfaces of the built and natural environment without the entitlement of ownership manifests itself in a number of ways, especially those surfaces – whether in public or private ownership – which can be accessed, more or less easily, by the public. If one looks around there is evidence of surface uses which challenge definitions and understandings of property law. For example, across the road from King’s Cross station (opposite the imposing red brick St Pancras Hotel) is a building with a mural over its façade. It is too extensive to be merely graffiti and was no doubt commissioned, perhaps as trompe d’oeil. But what if it was graffiti? Who would own it? This dilemma arose in the case of a piece by the secretive but well-known graffiti artist, Banks, called ‘Mobile lovers’ which appeared on the boarded up doorway of a building leased by Bristol Council to a youth group. Graffiti is illegal, insofar as such acts can attract criminal and civil liability. But Banksy’s work fetches high prices and the discovery gave rise to a bidding war. But who should benefit: the youth club that leased the building and so were in possession; the council that owned the building; the city art gallery that took the work in for safekeeping ‘for the citizens of Bristol’; the graffiti artist who owned the intellectual property in the piece? Or was this equivalent to what Gray called ‘property in thin air’: property belonging to no one or property belonging to everyone? Or was this really a debate about property interests in art rather than property interests in part of a building (for the board was attached to the building)? If so were there different rules?
This one example could lead us to consider a range of property law questions. For instance:
- Is this a question of public or private law and where is the division?
- Is an art work the same type of property as a building? Is it governed by the same law?
- In what circumstances is or might graffiti be acceptable and why?
- Whose interests are being weighed against each other and what does this tell us about the values which inform the rules which shape property law?
Graffiti is just one example which might be used to ‘draw’ students into property law. There are of course many others such as spikes placed in doorways to prevent rough sleepers; ninja knitting of physical objects to protest development; the exclusion of the public from national heritage sites; the physical benefits and drawbacks of easements and covenants; provisions for and objections to skateboarders; restrictions and prohibitions on the use of and access to public parks; the ways in which regeneration of neglected or unsightly areas (including guerrilla gardening) might raise different property interests and challenge existing claims; the impact of certain disasters on property rights and liabilities and so on. Teaching property law does not have to start with 1066, 1925, unregistered and registered land or section 1 of any legislation!