Exclusion and Exclusivity in Property Law

Legal Studies Research Paper Series No. 08-02

67 Pages Posted: 1 May 2008 Last revised: 1 Jun 2008

See all articles by Larissa M. Katz

Larissa M. Katz

University of Toronto - Faculty of Law

Date Written: April 1, 2008


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 these contemporary critics, 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 them to explain adequately the many subsidiary rights in things that co-exist with the rights of owners. Indeed, when we look more closely at the structure of ownership in property law, I argue that 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 subsidiary property right- holders 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.

Suggested Citation

Katz, Larissa M., Exclusion and Exclusivity in Property Law (April 1, 2008). Legal Studies Research Paper Series No. 08-02 . Available at SSRN: https://ssrn.com/abstract=1126674 or http://dx.doi.org/10.2139/ssrn.1126674

Larissa M. Katz (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5

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