The following comments on Barry Smith and Leo Zaibert: The Metaphysics of Real Estate, are largely based on the structure and information of a draft paper that I prepared, essentially in 2000, in the context of a Nordic effort to describe the national conceptions of real estate and property rights (Stubkjær, 2000). My paper was to present the Danish legal doctrine of real property rights as correct as possible regarding content, while the weighting of the issues, and the structuring of the information was less bound. I state this in order to provide some evidence, fragile as it may be, whether the findings in Metaphysics can be empirically tested.
As introduction, I compare the structuring of my paper with structures
of Metaphysics. In fact, the sequence of sections of my paper comes
quite close to the structure of the latter part (sections 3..5 ) of the
I conceive ownership, or real property rights, as a construct that comprises
three categories: Person, Land and Society. As a cadastral surveyor, I
start out with Land, conceived as the object of property rights
(Danish: ejendomsrettens genstand). The Person enjoy property rights, which
are described, in subsequent sections, under the heading of the content
of property rights. Finally, Society is introduced by a subsection on 'Property
rights and other institutions', and followed by a survey of Danish positive
law on real property. Summarizing, my paper is structured as follows:
- Land, the object of real property rights
- Legal doctrine on physical and legal dispositions regarding the owned object (the content of property rights), and
- Property related institutions, and statutory legislation restricting the dispositions of an owner or a potential purchaser or foreign user of real estate.
This structure compares to the "three interconnected dimensions of landed property: (1) a geographic dimension; (2) an ontological dimension, having to do what real estate is; and (3) a cognitive dimension, having to do with ... our culturally entrenched beliefs and conventions" (p. 3). The three category construct appears again p. 6 where the three dimensions are sequenced: ontology, geography, and beliefs. Furthermore, in summarizing gained insights (p. 14), the three dimensions appear in slightly changed terminology: geography (1) is represented by 'land parcel', the ontological dimension (2) is elaborated by reference to Hohfeld's 'bundle of rights', and the cognitive dimension (3) is indicated by the mentioning of institutions of boundary maintenance, and of title and cadastral registration.
By the above comparing, I am not claiming that 'Statutory legislation..'
is the same as 'beliefs and conventions', or 'institutions'. Rather, I
claim a certain similarity, which I am going to specify further below,
as part of an attempt towards developing a core ontology of our common
field of interest.
Metaphysics reminds us that a 'collective intentionality' (Searle, 1995) is needed to establish rights, including real property rights. Rights can have no existence unless they are intended and believed to exist (recognized) by the society concerned. In some (national) societies, recognition is established through formal processes, which within the legal regime include law suits, legislation, and administrative procedures for obtaining permissions. In other societies, international and national, as well as subcultures, recognition is established through rituals, which may or may not be performed according to written statements. In all of such variety of societies, conventions and beliefs supplement what is not established explicitly through legislation, rulings, or ritual. Comparing, the cognitive dimension as described in Metaphysics seem to include the positive legislation of my paper, and conversely, a shared belief of what is right (Danish: retssædvane) is recognized by courts among sources of law.
The relation between ownership and society, as represented by the state,
is developed in section 5 of Metaphysics, which sketches the development
from European medieval princes, enjoying a mess of rights of various sorts
and dispersed land holdings, to the modern type of society, where rights
as well as land are organized according to a rational model of clear cut
pieces, disjunct and complete in coverage, and where the plots of a real
estate are more or less consolidated. Metaphysics maintains that
the development never reached the point, where the owner gained absolute
(unconditioned) power over land. Rather, the state 'always keeps some rights
to itself' (p. 16), and thereby restricts the general freedom of dispositions
of the owner. Conclusion for ontology building is that the ontology has
to reflect this societal conditioning of ownership, and also, that ownership
of real estate and sovereignty of national territory share some features.
This view is certainly supported by Danish evidence. The usual constitutional declaration of the inviolability of property rights of 1849 co-existed with legislation on compulsory purchase for railroads of 1845 and quite extensive and fairly well enforced rules on agricultural holdings. Especially after the 1950s, a thick layer of regulations is being enforced. The creativity of the owner in finding more profitable uses of his asset thus has to come to an accord with these regulations.
The claim that some rights over land are still kept within the state,
reminds me of the German notion on 'Sozialbindung von Eigentum', but I
shall not pursue this further. Rather, I would like to refer to an analysis
of the essence of 'socio-economic spatial units', because a categorization
of such units is motivated with reference to the dimension Society. A spatial
unit, a section of the surface of the Earth, is defined differently and
depending on, who reigns over the spatial unit. Four categories of this
sort are suggested:
- Jurisdiction, of which the prototype is the nation state
- Place, exemplified by towns, market-places, squares, and similar entities that are defined by place names
- Region, delineated by the scientist in view of research, and
- District, established by an administrative unit, public or commercial, to fulfil its function.
In this analysis, the object of ownership, the parcel, is conceived as a specialization of the category Jurisdiction, as the owner is exercising his property rights within his 'jurisdiction', his piece of real estate, in the same way as the governmental official exercise her powers within the jurisdiction of the office (Stubkjær, 2001: 268ff). Again a confirmation is established that mundane and observable activities can be related to the abstract notions of Metaphysics within the dimension of Society.
Finally, a comment on 'institutions of boundary maintenance, and of
title and cadastral registration'. In my paper I state that property rights
(and property market) cannot function only by means of rules: what is needed
more are public services in terms of administration and education. Public
services regarding real property include a public registration of deeds
or title (land registry), and a systematic identification and spatial determination
(Danish: stedbestemmelse) of units of real property (cadastre), as well
as topographic mapping, custody of place names and jurisdiction boundaries,
and pertinent statistics. Metaphysics' two stage description of
registration (p.8-9) confuses me: When the geography of the estate is not
changed (the ordinary case of ownership transfer) I see no reason that
'cadastre' as such is involved, only the cadastral identifier is needed
to identify the 'specific ... piece of landed property'. The entry into
the Grundbuch is dubbed: cadastral registration, rather than 'title
registration'. Maybe, specific (Austrian?) practises conditioned the wording.
In countries without developed organisations, information systems, and
education, the cadastral institution may be rudimentarily established by
e.g. reference to place names, land marks along the boundary, and name
(and memory) of owners and neighbours. Generally, however, an agreement
can be noted, and again the claim of agreement does not imply that the
'institution of ..title..registration' is equivalent with the kind of judicial
organizations, which you find in Northern Europe. The quality of Metaphysics
is that its concepts abstract from specific implementations. Therefor,
they apply also to e.g. certain jurisdictions in India, where the institution
of title registration is said to be performed by a duly recognized person,
who is extraordinarily skilled in remembering property transactions by
hart (Bo Vagnby, personal communication).
I agree with Metaphysics (p.3f) that the object of real property rights is a 'thing', namely a body of land to which some mental phenomena are attached. The dimension of Land is analysed largely in section 1: Landed property is fenced, either in the literal sense or by fiat boundaries (p. 3), and landed property (German: Immobilien) has to be discerned from movables on the ground (p. 4). Questions regarding the creation and the identity of a land plot during time are addressed p. 7, and subsequently it is claimed that fiat boundaries need the support of a cadastral institution. Parcels of real estate are similar to works of art, as both are products of intentional activity of human beings (p. 10), and, furthermore, are three-dimensional solids, which include regions above and below the surface of the earth itself (p.15). Finally, owners and others must have access, legally and physically, to their parcel (p. 14).
My paper take a geographical point of departure, as I first discuss the horizontal boundaries of a bit of the surface of the earth, then the legal delimitation of the vertical boundaries above and below the surface of the earth. Among horizontal boundaries, attention is devoted to boundaries against streams and the sea (labile boundaries), and rights in natural resources within the 3D boundaries (e.g. trees, fish, game, minerals) are mentioned. The complex 'boundary' between the unit of real property and movables (or 'personal property') is traced; it appears that this legal construct vary depending on the context (purchase, mortgaging, tax assessment, insurance). The time dimension, and parcel access, I do not discuss.
Although the two papers show many differences in the way the category Land is treated, it is my conjecture that it is a matter of technical elaboration to demonstrate the agreement among the authors on this subject. Only one issue needs mentioning: The primary criteria of Danish legal doctrine for discerning movables from a unit of real estate, refer to selling behaviour: "what typically accompany the unit by sale". Consequently, the concept of institution is understood as rooted in behaviour, rather than in cognition, and my paper refers to the definition of institution by Weimer: "a rather stable and generally obeyed expectation of human behaviour in specific social, economic and political contexts" (1997:2).
Whether the different rooting will cause consistency problems remains
to be seen. Maybe, the harder task will be to specify an ontology that
account for the variations in the immovable-movable dichotomy across and
within national jurisdictions. The standard classification of immovables,
referred to in Metaphysics, p. 4-5: including 'by nature', 'by destination'
(purpose), and 'by declaration', seems hardly sufficient. One way out of
the problem might be to reduce the specification to the following: 'by
nature', 'standard boundary according to legal doctrine', and 'by declaration'
here meaning an intentional deviation in individual transactions from legal
and other standards.
The section on real property rights of my paper, corresponding to the ontology dimension of Metaphysics, is opened with a few words on the owner, the person who disposes of the rights. This seemed quite natural to me, as it is the owner who has to sign documents of the cadastral case, e.g. on satisfaction with new boundaries, and, also, pay the fee of the licensed surveyor. Metaphysics refer to real property conceptions of non-modern society, e.g. European middle ages. In doing so it provides a much deeper reason for including the person, who disposes of property, into the ontology project. The middle age person did not dispose of his rights in the same individualistic way as modern belief systems would suggest. Complaints by heirs on property dispositions may be interpreted as the effect of norms that prescribed consideration to members of family. Moreover, purchases of that time were not transactions among strangers according to economic rationality, but rather an exchange of gift and return gift as a means to influence rather stable, social relationships (Reuter, 1995). Consequently, the way by which the owner disposes over real estate is conditioned by prevailing norms on personal relations. This may be a truism, but if it is not set out explicitly, national and further cultural differences cannot be adequately reflected by the intended ontology. To develop an ontology of man is a project in its own right, but some elementary bits seems needed.
Metaphysics treat the details of property rights with reference to Hohfeld's 'bundle of sticks' (pp. 11 - 14). This model is known in Denmark (Alf Ros: Tû-tû, 1951, in a Festschrift), and recorded in literature lists, but hardly mentioned in modern Danish textbooks. In accordance with this, my approach disregards this legal figure, and in stead develops on the different types of physical and legal dispositions. In Norway, however, works on philosophy of law by Niels Kristian Sundby and Torstein Eckhoff of the 1970s is followed in the 1990s by works of Henning Herrestad and Christian Krogh, e.g. on "Hohfeld in Cyberspace and other applications of normative reasoning in agent theory" (Krogh & Herrestad, 1998). The paper includes a formalization of Hohfeld's conceptions of legal relations between agents, as proposed by Nordic scholars, and subsequently suggests an agent language, consisting of a set of operators and a transaction protocol.
Returning to Metaphysics, I agree that the bundle of sticks portraying property rights is 'elastic', that the various sticks are 'varied and complex', and that the 'economic importance of land as the presupposition of all human activity .. [therefor calls for] .. correspondingly complex legal institutions ..' (p. 13). I would like to think that the elasticity is mainly due to the freedom of the owner to invent new and possibly more profitable use of his asset, e.g. to set up a windmill. This is not stated in Metaphysics, which in stead mentions a rather hypothetical 'recuperating [of] many or all of the sticks at some point in the future' (p. 12, cf. the quotation p.11). In real life, the elasticity may be conditioned by a substantial regulation of property rights, cf. the comment above to the state retaining property rights. An analysis of 'windmill rights' in Denmark reveals that the rights did not grow out of Hohfeld's bundle, but is in fact public grants bestowed upon the fortunate owners. All this tend to suggest that the elasticity does not apply generally. Adding, that the various sticks signifies the obvious fact that a phenomena can be analysed in its parts, a la Descartes, I actualize the Danish position regarding the application of Hohfeld's bundle of sticks on real property rights.
Coming to the details themselves, there is a striking agreement regarding
the mentioning of different types of dispositions. I structure them as
follows (left column):
|Types of owner dispositions||
While Metaphysics often just mention the diverse dispositions, I develop on several of the types, including sell, subdivide, and the nature and establishment of easements. Furthermore, in this section I mention the legislation pertaining to enforcement of exclusive use, to the protection of evidence in terms of boundary marks, etc., and three different procedures for settling of boundary disputes (by court, by licensed surveyor, and by local fence committee, respectively), cf the right column of the table. The latter, and the other institutions of this column are all mentioned by Metaphysics, which in one case (adverse possession) caused a more complete rendering of the matter above than in my paper.
The purpose of this comment was to identify common elements and common structures of two papers: The Metaphysics of Real Estate and my manuscript: The Concept of Real Estate in Denmark. In spite of different knowledge profiles of authors and different audiences and - consequently - different granularity of the diverse sections of the two papers, the comment does in fact identify common structures, a substantial agreement as regards the set of elements treated, and a commonality among the treated elements.
With a view of establishing a core ontology of real estate this is encouraging,
assuming that the semi-structured fragments of the present Comment are
counted among the sources of inspiration for a more formal treatment of
the subject matter.
Davies, Wendy & Paul Fouracre (1995) (Eds) Property and Power
in the Early Middle Ages. CUP.
Frank, Andrew, Jonathan Raper & Jean-Paul Cheylan (2001) (Eds) Life and Motion of Socio-Economic Units. GISDATA-series 8. Taylor & Francis.
Krogh, Christen and Herrestad, Henning (1998) Hohfeld in Cyberspace and other applications of normative reasoning in agent technology AI & Law Journal Special issue on Agents and Norms.
Reuter, Timothy (1995) Property transactions and social relations between rulers, bishops, and nobles in early eleventy-century Saxony: the evidence of the Vita Meinwerci, in Davies & Fourace (Eds) Property and power in the early middle Ages.
Ros, Alf (1951) Tû-tû, Festskrift til Henry Ussing, p. 457 ff.
Smith, Barry and Leo Zaibert (2001) The Metaphysics of Real Estate Topoi
Stubkjær, Erik (2000) Begrebet Fast Ejendom i Danmark (The concept of Real Estate in Denmark). Manuscript. 17 p.
Stubkjær, Erik (2001) Spatial, Socio-Economic Units and Societal Needs - Danish Experiences in a Theoretical Context, pp 265 - 279, in Frank, Raper & Cheylan (Eds) Life and Motion of Socio-Economic Units. GISDATA-series 8.
Stubkjær, Erik (2001) Integrating Ontologies: Assessing the use of the Cyc Ontology for Cadastral Applications, in: Jan Terje Bjørke and Håvard Tveite (Eds) Proceedings, ScanGIS 2001, pp. 171-184. [Agricultural University of Norway, Ås, Norway] ISBN 82-576-9502-5