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Several books on Trusts use both "property" (emboldened beneath) and "proprietary" (emboldened and italicized beneath) as adjectives, even in the same paragraph! Do they differ in meaning?

Or do they mean the same? is this just Elegant Variation?

      Claiming property rights has three significant advantages for the claimant, depending on the nature of the property right that is claimed. First, the claimant’s property right 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 proprietary interest, 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.

Virgo, The Principles of Equity & Trusts 2020 4th edn. Page 15.

      Secondly, where the claimant has a property interest 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 proprietary interest 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 property interest in shares that have fallen in value, it may be preferable for the claimant to pursue a personal rather than a proprietary claim.

Op. cit. Page 16.

      The same is true of proprietary rights in Equity, but Equity is even more imaginative73 in its recognition of property rights. 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.

Op. cit. Page 17.

2 Answers 2

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It is Elegant Variation

Property is the noun and proprietary is the adjective but in English it is common to use nouns as adjectives. Grammarians will tell you that this is wrong but it is very common. English is an amalgam of Anglo-Saxon, Latin and Norman French and the idea of using a noun to do the work of an adjective is common in Saxon languages such as German.

So the answer is that property rights and proprietary rights mean the same just as contract rights and contractual rights mean the same, and appellate court and appeal court mean the same.

In English (and, I assume, other languages though I don't know) it is considered bad style to keep repeating the same word in a paragraph so writers avoid doing so by a variety of means such as alternating between nouns and pronouns, using synonyms, and sometimes, as in this example, alternating between adjective and noun-used-as-adjective.

Law is a discipline where precision in using technical terms is important so there are dangers in using synonyms and this may be why alternating between adjective and noun-used-as-adjective is preferred because the writer knows that, as a matter of ordinary English grammar, the terms have identical meaning.

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    Why was this downvoted?
    – user41441
    Commented Oct 28, 2021 at 23:32
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Property

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 law means by property.

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 Yanner v Eaton, the High Court of Australia said:

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’.

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.

Proprietary rights are a subset of property rights - they are the rights that exist by virtue of being the owner of the property.

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 proprietary rights over C, is P’s corporate trustee ‘T’.

The retail tenants ‘R’ in the shopping centre have property rights over C defined in their leases but the don’t have proprietary 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.

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  • Sometimes "proprietary" means an economic or commercial right, as opposed to a non-commercial property right, although this doesn't really seem to be the used in the quoted material.
    – ohwilleke
    Commented Oct 27, 2021 at 21:11
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    In England, at least (and Virgo is an English writer) nobody would ever say that they have property rights in their employment contract.
    – Nemo
    Commented Oct 27, 2021 at 21:32
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    Can you pls simplify and elaborate your illustration with the shopping centre C, property trust P, corporate trustee T, et cetera? Your illustration is too abstruse. What are "property trust", "corporate trustee", "unit trust"???
    – user41776
    Commented Dec 11, 2021 at 21:38

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