Ownership rights in performance-based contracting: A case study of English law

Clients and contractors need to be aware of the project’s legal environment because the viability of a procurement strategy can be vitiated by legal rules. This is particularly true regarding Performance-Based Contracting (PBC) whose viability may be threatened by rules of property law: while the PBC concept does not require that the contractor transfers the ownership in the building materials used to the client, the rules of property law often lead to an automatic transfer of ownership. But does the legal environment really render PBC unfeasible? In particular, is PBC unfeasible because contractors lose their materials as assets? These questions need to be answered with respect to the applicable property law. As a case study, English property law has been chosen. Under English law, the rule which governs the automatic transfer of ownership is called quicquid plantatur solo, solo credit (whatever is fixed to the soil belongs to the soil). An analysis of this rule reveals that not all materials which are affixed to land become part of the land. This fate only occurs in relation to materials which have been affixed with the intention of permanently improving the land. Five fictitious PBC cases have been considered in terms of the legal status of the materials involved, and several subsequent legal questions have been addressed. The results suggest that English law does actually threaten the feasibility of PBC in some cases. However, it is also shown that the law provides means to circumvent the unwanted results which flow from the rules of property law. In particular, contractors who are interested in keeping their materials as assets can insist on agreeing a property right in the client’s land, i.e. a contractor’s lien. Therefore, the outcome is that English property law does not render the implementation of the PBC concept unfeasible. At a broader level, the results contribute to the theoretical framework of PBC as an increasingly used procurement strategy.

Land, rights and the gift: the Countryside and Rights of Way Act 2000 and the negotiation of citizenship

The Countryside and Rights of Way Act came into force at the end of 2000 with,as part of its content, new provisions relating to public access to the English and Welsh countryside. In this paper we review the main elements of the Act and assess its meaning in relation to citizenship, territoriality and the place of land in English law and society. We invoke Mauss’s (1954)concept of Gift to explain the process of brokerage being made over access and rights in the countryside. In conclusion we reflect on the Act as being indicative of a wider move towards Bromley’s (1998)post-feudal scenario for land and its governance.

Agricultural tenancy reform: the end of law; or a new popular culture?

This paper applies a reading of the postmodernisation of law to the incremental reform of agricultural holdings legislation over the last century. In charting the shifting legal basis of agricultural tenancies, from ‘black letter’ positivism to the cultural contextuality of sumptuary law, the paper theorises that the underlying political imperative has been allied to the changing significance of property ownership and use. Rather than reflecting the long-term official desire to maintain the let sector in British agriculture, however, the paper argues that this process has had other aims. In particular, it has been about an annexation of law to legitimise the retention of landowner power while presenting a rhetorical ‘democratisation’ of farming, away from its plutocratic associations and towards a new narrative of ‘depersonalised’ business.

The market in freehold land, 1300-1509: the evidence of feet of fines

This article provides time series data on the medieval market in freehold land, including the changing social composition of freeholders, level of market activity, size and complexity of landholdings, and shifts in the market value of land. These are subjects hitherto largely ignored due, in part, to the disparate nature of the evidence. It argues that feet of fines, despite archival limitations, if employed with care and an understanding of the underlying changes in the common law of real property, are capable of providing quantifiable evidence spanning hundreds of years and comparable across large areas of England.

Governance, agricultural intensification and land sparing in tropical South America

In this paper we address two topical questions: How do the quality of governance and agricultural intensification impact on spatial expansion of agriculture? Which aspects of governance are more likely to ensure that agricultural intensification allows sparing land for nature? Using data from the Food and Agriculture Organization, the World Bank, the World Database on Protected Areas, and the Yale Center for Environmental Law and Policy, we estimate a panel data model for six South American countries and quantify the effects of major determinants of agricultural land expansion, including various dimensions of governance, over the period 1970–2006. The results indicate that the effect of agricultural intensification on agricultural expansion is conditional on the quality and type of governance. When considering conventional aspects of governance, agricultural intensification leads to an expansion of agricultural area when governance scores are high. When looking specifically at environmental aspects of governance, intensification leads to a spatial contraction of agriculture when governance scores are high, signaling a sustainable intensification process.

Gendered struggles over land: shifting inheritance practices among the Serer in rural Senegal

Although women's land rights are often affirmed unequivocally in constitutions and international human rights conventions in many African countries, customary practices usually prevail on the ground and often deny women's land inheritance. Yet land inheritance often goes unnoticed in wider policy and development initiatives to promote women's equal access to land. This paper draws on feminist ethnographic research among the Serer ethnic group in two contrasting rural communities in Senegal. Through analysis of land governance, power relations and 'technologies of the self', this article shows how land inheritance rights are contingent on the specific effects of intersectionality in particular places. The contradictions of legal pluralism, greater adherence to Islam and decentralisation led to greater application of patrilineal inheritance practices. Gender, religion and ethnicity intersected with individuals' marital position, status, generation and socio-ecological change to constrain land inheritance rights for women, particularly daughters, and widows who had been in polygamous unions and who remarried. Although some women were aware that they were legally entitled to inherit a share of the land, they tended not to 'demand their rights'. In participatory workshops, micro-scale shifts in women's and men's positionings reveal a recognition of the gender discriminatory nature of customary and Islamic law and a desire to 'change with the times'. While the effects of 'reverse' discourses are ambiguous and potentially reinforce prevailing patriarchal power regimes, 'counter' discourses, which emerged in participatory spaces, may challenge customary practices and move closer to a rights-based approach to gender equality and women's land inheritance.