The numerus clausus is a concept of property law which limits the number of types of right that the courts will acknowledge as having the character of "property". Several consequences follow from a right having the nature of property, as opposed to being a personal right, like a contract or obligation to pay compensation. Historically, the law has given privileged remedies to the holders of property rights over personal claims. These have included priority in payment from an insolvent debtor, a greater likelihood of being awarded specific performance, and security in remaining in possession of land or some other asset against termination of the right to possess. It holds especial importance in land law and corporate law.
History
The numerus clausus principle has its roots in Roman law.
England & Wales
In the United Kingdom, and particularly in the jurisprudence of the English courts, it is well established that individuals cannot freely create new categories of property right themselves: it has to be recognised by courts. This was held to be true in the 19th century in Keppell v Bailey and Hill v Tupper as a matter of public policy. In the 20th century, in National Provincial Bank Ltd v Ainsworth with a more open approach, Lord Wilberforce stated that A widely held view is that a numerus clausus, or a property right limit, serves to protect wealth in the scope where it already exists, and does not need extension. This tends to be contested on the basis acknowledgement of property rights simply masks a privilege for people who have enough bargaining power to exercise the freedom of contract for the various privileges that property rights confer, such as priority in insolvency, security of tenure, a right to trace or follow an asset, and a greater likelihood of specific performance as a remedy. Under English law today, there are fourteen property rights in the numerus clausus, as follows.
profit a prendre, rights allowing one person to enter and take things like coal, timber or game
rentcharges, since the Rentcharges Act 1977 only in exiguous circumstances, a right to own land in return for periodical payments to someone else
rights of entry, especially found with leases and rentcharges if rent is not paid
estate contracts, rights arising where parties intend to create or purport to create some other right but have not yet done so
options and pre-emption rights, i.e. to demand a right under specified conditions
‘mere equities’, rights to rescind a transaction if it is vitiated by mispresentation, undue influence and so on, under the Land Registration Act 2002 ss 115–116
home rights, i.e. to occupy a home by virtue of a family relationship under the Family Law Act 1996s 30
There are competing views about the desirability of having a limited numerus clausus of property rights, as well as what counts as having a proprietary quality.
