england-and-wales legal-terms
Property vs. Proprietary as adjectives
<p>Several books on Trusts use both &quot;property&quot; (emboldened beneath) and &quot;proprietary&quot; (emboldened and italicized beneath) as adjectives, even in the same paragraph!  Do they differ in meaning?</p>
<p>Or do they mean the same? is this just Elegant Variation?</p>
<blockquote>
<p>      Claiming <strong>property rights</strong> has three significant advantages for the claimant, depending
on the nature of the property right that is claimed. First, the claimant’s <strong>property right</strong> will
give them priority over other creditors of the defendant. This will be significant where the
defendant is insolvent. If the defendant does not have enough money to pay off all of their
creditors, it will be necessary to distribute the defendant’s money according to a prioritized
list of creditors. If, however, the claimant can show that the defendant has property
in which the claimant has a <em><strong>proprietary interest</strong></em>, then, at least as regards that property, the
claimant will rank above all other creditors and will be able to make a claim against the
property, either to recover the property itself or to force a sale and recover value where
there is a security interest over the property.</p>
</blockquote>
<p>Virgo, <em>The Principles of Equity &amp; Trusts</em> 2020 4th edn. Page 15.</p>
<blockquote>
<p>      Secondly, where the claimant has a <strong>property interest</strong> that is not a security interest, if the
property in which the claimant has the interest has increased in value, the claimant will
get the benefit of that increase. So, for example, if the claimant has a <em><strong>proprietary interest</strong></em>
in shares that are held by the defendant, the claimant will be able to gain both the benefit
of any dividends paid in respect of the shares and any increase in the value of the shares.
Of course, if the claimant has a <strong>property interest</strong> in shares that have fallen in value, it may
be preferable for the claimant to pursue a personal rather than a proprietary claim.</p>
</blockquote>
<p>Op. cit. Page 16.</p>
<blockquote>
<p>      The same is true of <em><strong>proprietary rights</strong></em> in Equity, but Equity is even more imaginative<sup>73</sup>
in its recognition of <strong>property rights</strong>. Equity is able to recognize rights to assets and the
use of property, but also to the value of property and rights which may arise in the future.</p>
</blockquote>
<p>Op. cit. Page 17.</p>

<h2>Property</h2>
<p>In common usage, property is thought of as a “thing” that has its own independent existence (not necessarily a tangible existence). This is not what the <a href="https://www.alrc.gov.au/publication/definitions-of-property/" rel="nofollow noreferrer">law</a> means by property.</p>
<blockquote>
<p>7.12       In law, the term ‘property’ is perhaps more accurately or commonly used to describe types of rights—and rights in relation to things. In <em>Yanner v Eaton</em>, the High Court of Australia said:</p>
<p>The word ‘property’ is often used to refer to something that belongs to another. But … ‘property’ does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of ‘property’ may be elusive. Usually it is treated as a ‘bundle of rights’.</p>
</blockquote>
<p>The phrase “property rights” is an effort to distinguish between the legal meaning of property and the common meaning. It is describing any and all of that bundle of rights that anyone and everyone might have.</p>
<p>Proprietary rights are a subset of property rights - they are the rights that exist by virtue of being the <em>owner</em> of the property.</p>
<p>To illustrate the difference, imagine a shopping centre ‘C’ (mall if you’re in North America) owned by a property trust ‘P’. P is not a legal entity so it has no property rights (or any other rights). The owner of C, the one with <em>proprietary</em> rights over C, is P’s corporate trustee ‘T’.</p>
<p>The retail tenants ‘R’ in the shopping centre have <em>property</em> rights over C defined in their leases but the don’t have <em>proprietary</em> rights. The employees of T have property rights in their employment contract with T but don’t have proprietary right. The unit trust holders have beneficial property rights as defined in the trust deed but they don’t have proprietary rights over C but they do over P. The shareholders T have proprietary rights over T but no rights over C. And so on.</p>
