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Vol 23 No 3 March/April 2018

Book of the Month

Cover of Scamell and Gasztowicz on Land Covenants

Scamell and Gasztowicz on Land Covenants

Price: £225.00

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Property in the Margins

ISBN13: 9781841139630
Published: May 2009
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback
Price: £49.99

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Having its origins in the process of transformation and land reform that began to take shape in South Africa at the end of the last century, this strikingly original analysis of property starts from deep inside the property regime, not taking a distant or abstract perspective on property rules and practices, but starting from within a property regime.

Focusing on issues of stability and change in a transformative setting and on the role of tradition and legal culture in that context, the book argues that a property regime, including the system of property holdings and the rules and practices that entrench and protect them, tends to insulate itself against change through the security- and stability-seeking tendency of tradition and legal culture, including the deep assumptions about security and stability embedded in the rights paradigm, rhetoric and logic that dominate current legal culture.

The rights paradigm tends to stabilise the current distribution of property holdings by securing extant property holdings on the assumption that they are lawfully acquired, socially important and politically and morally legitimate. This function of the rights paradigm tends to resist or minimise change, including change brought about by morally, politically and legally legitimate and authorised reform or transformation efforts. The author's goal is to gauge the lasting power of the rights paradigm by investigating its effects in the margins of property law and of society, by establishing the actual efficacy and power of reformist or transformative anti-eviction policies and legislation aimed at the protection of marginalised and weak land users and occupiers in areas such as landlord-tenant law, eviction of unlawful occupiers of land and other restrictions on the landowner's power to enforce a stronger right to exclusive possession.

Ultimately the book's aim is to explore the possibility of opening up theoretical space where justice-inspired changes to (or transformation of) the extant property regime can be imagined and discussed more or less fruitfully from an unusual perspective, a perspective from the margins which is valuable for any theoretical consideration or discussion of property.

Property Law, Jurisprudence
1. Property in a Transformative Setting
I. Facing up to Social and Political Transformation
II. Property Theory in a Time of Transformation
2. Property in the Centre: The Rights Paradigm
I. Property in the Rights Paradigm
II. Three Illustrations
3. Eviction in the Rights Paradigm
I. The Right to Evict as an Incident of Ownership
II. Eviction, Socio-Economic and Political Power
III. The Eviction Challenge
4. Eviction in Landlord–Tenant Law
I. Introduction
II. Tenant Protection: A Comparative Overview
III. Tenant Protection in South African Law
IV. Conclusion
5. Eviction of Unlawful Occupiers
I. Introduction
II. Eviction of Politically Inspired Urban Squatters
III. Anti-eviction Protection in South African Land Reform Law
IV. Eviction of Gypsies or Travellers
V. Conclusion
6. Limitations on Eviction in Other Contexts
I. Introduction
II. Acquisitive Prescription and Adverse Possession
III. Public Access to Private Property
IV. Significant Building Encroachments
V. Weak Owners
VI. Conclusions
7. Conclusions
I. Property in the Context of Stability and Change
II. Overview of Results
III. Property in the Margins