Property Law

10 Key excerpts on "Property Law"

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  South Pacific Property Law

  • Sue Farran, Donald Paterson(Authors)
  • 2013(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  The classification of things into different categories is a useful tool. In English common law, the distinction between different forms of property has its origins in the procedures which needed to be followed to claim any rights in relation to the thing, or to deny any liabilities. In particular, claims to rights relating to land were pursued differently from those to other forms of property. Legal and equitable rights were also treated differently, and in different courts, until the end of the 19th century. Although these procedural distinctions are now less significant than they were, partly because of the merger of the courts of law and equity, and because of greater recognition of many forms of property, the historical legacy is still relevant for many of the formalities for transfer of different types of property and for the remedies available when a property interest has been infringed. In island countries of the South Pacific, further distinctions are found where certain types of property, particularly land, are governed by customary law, and where they are governed by introduced law. Also, in some cases, especially in the region of the South Pacific, the nature of the property determines the forum for dispute resolution. This is particularly so in the case of land and titles, where specialist courts exist to which such matters must be referred.

  1.2 PROPERTY AS RIGHTS

  An alternative way of looking at Property Law is to focus on the relationship between people and things. The basis for this approach is that Property Law is really about claiming, resisting or exerting rights to things against other people.2 If there is no competition for things then there is no need for any legal framework. It is only when, for example, two people claim rights over the same property and a dispute arises that there is a need for a legal solution, unless they are to resort solely to self-help. Property Law thus develops in response to competing claims to resources and the commercialisation of things. Property Law confers rights on those claiming interests in a thing to seek a remedy against others who would infringe those rights in some way. Property Law also develops to facilitate and enlarge the range of transactions that can take place regarding things. In this respect, Property Law brings together many areas of law such as contract, torts, company law, commercial law, the law of equity and trusts, criminal law and even constitutional law. It is also necessary to consider the application of the common law of England, principles of equity, introduced and regional legislation and customary law.

  One of the difficulties with the approach which looks at property as rights in the South Pacific region is that in English common law, the notion of property as rights is seen as the relationship between the individual – or legal person – and the thing. Property, in the sense of rights, is seen as ‘the right to exclusive ownership and control of a specified object’.3 Property Law is therefore primarily concerned with private property. However, in the South Pacific region, individual rights are historically less common than communal rights.4 Consequently, any assertion by one person against another of rights to property may need to be treated differently. While individual rights are rarely absolute, this is even more likely to be the case where rights cannot be owned or claimed individually. This is not to say that individual rights to property are not recognised at all in island countries of the South Pacific. Indeed they are, and as the South Pacific region develops economically and lifestyles change, there is likely to be an increasing shift towards individual property ownership, particularly as regards goods and chattels.5

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  Law and the Built Environment

  • Douglas Wood, Paul Chynoweth, Julie Adshead, Jim Mason(Authors)
  • 2021(Publication Date)
  • Wiley-Blackwell

    (Publisher)

  4 Land Law 4.1 The two types of property The subject of land law is essentially concerned with the rights that can exist in land. It describes the nature of these rights, and the circumstances in which those who are entitled to them can enforce them against others. Land, of course, is a form of property but most legal systems make a distinction between land and all other forms of property. English law makes a distinction between what it describes as real property and personal property. Real property is comprised of land as well as most of the rights which people can own in land 1 . The term is sometimes abbreviated to ‘ realty ’ and is also the origin of the expression ‘ real estate ’ which was originally con fi ned to North America but which is now increasingly used throughout the world. Personal property comprises all other types of property. It includes items of property having a physical existence (tangible property) as well as property rights which are independent of any physical item (intangible property). Intellectual property rights, including patents and copyright, are examples of the latter. The term is sometimes abbreviated to ‘ personalty ’ . Although the two concepts are not strictly synonymous with each other, personal property is also sometimes loosely described as ‘ chattels ’ . The origins of the distinction between real property and personal property lie in the approach that the courts historically took to protecting rights in the different types of property. Today the law continues to treat land differently to all other types of property. This is not only re fl ected in the way it is still treated by the courts but also in terms of the whole body of law which we describe as ‘ land law ’ and which is the subject of the present chapter. This, of course, applies only to land and not to all the other forms of property which we describe, collectively, as personal property.

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  Law and Economics

  An Introductory Analysis

  • Werner Z. Hirsch(Author)
  • 2014(Publication Date)
  • Academic Press

    (Publisher)

  2 Property Law'S BASIC LEGAL PREMISES INTRODUCTION American Property Law has deep historical roots in English common law. From this beginning, Property Law has slowly changed to meet new conditions as they emerge in an increasingly urbanized and industrial-ized society. As we will see, the law has struggled to adjust itself to new circumstances. In this chapter the basic legal premises of Property Law are examined. 1 First I discuss rights and entitlements to property, their permanent transfer, and their temporary transfer. Then I take up land use plan-ning and development. Other chapters explore some of the economic aspects of certain Property Laws, especially habitability laws, just-cause eviction statutes, and zoning ordinances. DEFINING RIGHTS AND ENTITLEMENTS TO PROPERTY Private property, under the American system of law, can be consid-ered an entitlement protected by a property rule. Property Law provides the rules with regard to the entitlement to land and improvements 1 American Property Law can be traced as far back as the Statute of Uses passed by Parliament in 1535. For a detailed treatment of Property Law, see A. James Casner and W. Barton Leach, Cases and Texts on Property (Boston: Little, Brown, 1969). 23 24 2 Property Law'S BASIC LEGAL PREMISES thereon. These rules enhance the certainty of who owns a given prop-erty and under what circumstances. Moreover, they facilitate efficient transfer of title. OWNERSHIP, POSSESSION, AND CONTROL Of particular interest to lawyer and economist alike is the degree to which a given party has a right to a certain property under specified conditions. We can distinguish between ownership, possession, and con-trol in an attempt to define the differing extent of a right to a particular property. An ownership right means that the enforcing part (e.g., the state) has determined that the holder of this entitlement has the benefit of the property for most uses.

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  Introduction to Law

  • Beth Walston-Dunham(Author)
  • 2019(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  These legal changes have been the result of an effort to adapt to the changes that have occurred in society and in the types of land interests in this country that did not exist in feudal England. This chapter defines and examines the cur -rent law of property, including personal property, real property, and associated interests. Before discussing the types of property and the rights related to the purchase, conveyance (transfer), own -ership, possession, or alteration of property, we clarify the legal definition of the term property, which generally means the right to possess or control. 1 This meaning is different from the everyday language use, which inter -prets property as an actual physical thing such as a parcel of land. Consequently, in legal terms, when discussing an interest in property, the focus is on the type of right to possess, control, or own the item in question rather than on the item itself. This chapter is organized by type of area subject to Property Law, and the rights associ -ated with ownership within those areas are discussed. 436 ChAPTER 12 REAL PROPERTY Real property is land or that which is attached to the land in such a way that it is permanent, fixed, and immovable. 2 The law of real property governs all that is part of the land naturally or as a result of being artificially incorporated into the land in a permanent way. Real property includes houses, buildings, and other structures that are affixed to the property by some permanent means. An example of something that would not ordinarily be considered real property is a mobile home that has not been permanently affixed to the ground. This type of structure is considered mov -able and thus falls into the category of personal property (discussed at the end of this chapter). The following sections discuss the types of interest or rights to real property. These interests and rights can be affected by ownership, inheritance, marital status, and terms of possession.

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  Researching Property Law

  • Sarah Blandy, Susan Bright(Authors)
  • 2015(Publication Date)
  • Hart Publishing

    (Publisher)

  106 Introduction Property is fundamental in both law and economics. Writing from a legal perspective, the jurist William Blackstone observed that ‘nothing … so generally strikes the imagination, and engages the affection of mankind, as the right of property’. 1 So much in law revolves around property – from contracts that exchange goods (property in things) or services (property in labour) and tort doctrines of nuisance and trespass that protect property rights (including common and public property rights), to criminal laws pro-hibiting theft and constitutional rules limiting government expropriation – that Tom Bethell exaggerates only slightly when he claims that ‘a society without property rights would hardly need lawyers’. 2 From a functional perspective, Property Law is the mechanism by which entitlements (and liabilities) concerning scarce goods and services are allocated among competing uses and users. 3 The scarcity of goods and services is also what gives property its funda-mental importance in economics. In 1932, Lionel Robbins offered a widely influential definition of economics as ‘the science which studies human behavior as a relationship between ends and scarce means which have alter-native uses’. 4 Those scarce means are allocated according to a legal system of property, and ‘the content of property rights affects the … use of resources in specific and predictable ways’. 5 As Armen Alchian later explained: 1 Blackstone W, Commentaries on the Laws of England Vol. 2 (University of Chicago Press, Chicago IL, 1979 [1766]) 2. 2 Bethel T, The Noblest Triumph: Property and Prosperity through the Ages (St Martin’s Griffin, New York, 1998) 23. 3 Cole D H and Grossman P Z, Principles of Law and Economics (2nd edn, Wolters Kluwer, New York, 2011) 31. 4 Robbins L, The Nature and Significance of Economic Science (2nd edn, Macmillan, 1945) 16.

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  Law

  Made Simple

  • D. L. A. Barker, C. F. Padfield(Authors)
  • 2014(Publication Date)
  • Made Simple

    (Publisher)

  10 THE LAW OF PROPERTY 1. Ownership Ownership has been described as 'the entirety of the powers of use and disposal allowed by law' (Pollock: First Book of Jurisprudence). The owner of a thing has an aggregate of rights, namely (i) the right of enjoyment, (ii) the right of destruction, and (iii) the right of disposition, subject to the rights of others. Thus if A owns a hat he can wear it, alter it, burn it, or merely throw it away. There are, however, limits to these rights. If A throws his hat at B, this might be an assault on B (or a battery if the hat strikes him), for under the general law B has a right not to be interfered with. Similarly in regard to land, A may enjoy and use his land, he may sell it or give it away; but his use of his land is subject to the rights of others as allowed by law, e.g. in nuisance and tort. Today a landowner's rights are much circumscribed by legislation aimed at social control, e.g. the Town and Country Planning Act, 1971. Permission for any change in the use of the land owned has to be obtained from the local planning authorities. Moreover, Govern-ment departments and local authorities may compulsorily acquire privately-owned land and use it for public purposes, e.g. as a site for a school or college. A person may own land notwithstanding that another has an easement, such as a right of way, over it. As already mentioned, the ownership of land grew out of possession. An early landowner's rights were possessory, and in medieval law his title to the land was based on the concept of seisin (a possessory right). The word 'ownership' was not found in use in England before 1583, and the word 'property' was uncommon before the nineteenth century. People spoke of 'possessions' and 'estates'. In course of time the idea of ownership grew with an advancing industrial and capitalistic economy. The right of possession changed into the right of ownership which we know today. Ownership may be acquired in the following ways. (a) Originally.

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  The Principles of Personal Property Law

  • Duncan Sheehan(Author)
  • 2017(Publication Date)
  • Hart Publishing

    (Publisher)

  1 On different types of ‘non-private property’ see A Clarke and P Kohler, Property Law: Commentary and Mate-rials (Cambridge, CUP, 2005) ch 1. 1 The Basic Concepts of Personal Property Law I. Introduction There are a number of basic concepts in the law of personal property, some of which are common to land law as well, although our focus in this book is on personal property and in particular private property rights. 1 Indeed the distinctions between land or real property and personal property and between personal and proprietary rights are among the most basic we see. This chapter is devoted to building these concepts up. It will set the scene for the rest of the book. The chapter is divided into a number of sections. Firstly we examine the different types of asset with which we are concerned. Subsequently we look at the different ways of owning assets. In English law we can hold property in one of three ways. We can hold it, or own it, outright. This is what we look at in the second section of this chapter along with the differ-ent ways of understanding legal title and possession. I may also hold property on trust. It is important to see what we mean by legal title before we look at this, because usually the trustee—the person holding on trust—has legal title. He also has various obligations. We look at the private express trust briefly. Later in the book it will be explained how equitable interests under trusts are transferred and protected. However, for more detail on the trust a dedicated trusts textbook should be consulted. I can also hold the asset as security for an obligation owed by another party (D). In these cases I am D’s creditor and have a right in an asset, title to which (either legal or equitable) is normally held outright by D, although mortgages are an exception to this. When the obligation is discharged, so is the security interest.

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  Modern Methods of Valuation

  • Eric Shapiro, David Mackmin, Gary Sams(Authors)
  • 2019(Publication Date)
  • Estates Gazette

    (Publisher)

  3    Property Law 1. Land law

  The word “property” means the right that a person has in land or goods. So, in valuing land, the valuer is estimating the value of the rights (the property) that a person has in that land. Obviously a valuer has to understand the scope of these rights in order to carry out a competent valuation. If, for example, the valuer is valuing a freehold, it is necessary to understand what legal rights are embodied in that freehold as well as any legal restrictions on those rights. Such rights and restrictions are the subject of land law. Land in this context includes buildings and parts of buildings – section 205(1)(ix), Law of Property Act 1925.

  Land law principles are derived from the common law – the law evolved by the judges in thousands of cases over the centuries. This law was modernised, codified and simplified by the reforming legislation of 1925. This consisted of seven Acts of Parliament on various aspects of land law and includes the Law of Property Act 1925 which, as amended, sets out the basic rules governing the ownership, creation and transfer of estates and interests in land.

  2. Property rights in general

  The two principal rights or interests in land in England and Wales with which the valuer is concerned are known, respectively, as the freehold and leasehold. (The position in Scotland changed with The Long Leases (Scotland) Act 2012 which converted qualifying (residential) long leases into outright ownership with all such leases ceasing to exist after 28 November 2015.) Tenants of these qualifying leases became owners with responsibility for shared maintenance of common parts and shared liability for other matters. So in Scotland the valuer is primarily concerned with freeholds which may be owner-occupied or subject to short-term leases. Continuing concern in England and Wales in relation to the practice of selling long leases in residential property, often with onerous lease terms, has stirred political interest and changes are being made as set out in section 14 below.

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  Law for the Construction Industry

  • J.R. Lewis, Stephanie Owen(Authors)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  4

  Law of property

   

  Introduction

  What does property mean?

  What sort of property do you own? Make a list. The word property comes from the French word ‘propre’, meaning one's own, and thus property in law is anything capable of ownership.

  Your list should therefore include ‘things’ such as motor cars, clothes, jewellery, furniture, household goods, animals, food, cheques, copyright, patents, money and debts, as well as your house and land. You cannot own people or corporations.

  You will notice that out of this list some property is tangible, i.e. it can be touched or is physical. Other types of property are intangible and cannot be touched, such as copyright, patents, shares in a company, or goodwill.

  Possession and ownership

  Property can be possessed or owned. What is the legal difference?

  Possession

  This was recognised much earlier in history, as it is relatively easy to determine who is the possessor of something. It is a question of fact and needs no law to determine it. Because of the ease of proving possession, it is often said that ‘possession is nine tenths of the law’. Indeed, the person in possession of property has a better right to it than anyone else, except for the true owner. Thus, a squatter has rights, but only possessory rights, and they can never be better than those of the owner. If he remains on the land long enough, however, he may acquire ownership of the land by adverse possession. Similarly, if a person finds a lost ring he may have it returned to him by the police, but, if the true owner seeks its return within the limitation period, then the finder may be sued for the ring itself or its value. ‘Finders, keepers’ is only partly true.

  Ownership

  This concept encompasses all the legal rights that can attach to property, so that the owner can do with the property whatever he wishes, including giving up possession. Ownership is therefore better than mere possession as the owner is entitled to possession as well, and can claim any property back that has been wrongly taken out of his possession.

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  Persons, Parts and Property

  How Should we Regulate Human Tissue in the 21st Century?

  • Imogen Goold, Kate Greasley, Jonathan Herring, Loane Skene, Imogen Goold, Kate Greasley, Jonathan Herring, Loane Skene(Authors)
  • 2014(Publication Date)
  • Hart Publishing

    (Publisher)

  In order to connect the exercise of entitlements in things (the functional dimension) with the specific set of rights and duties that represent Property Law doctrine (the structural dimension) we need to conceptualise Property Law. That is, we need to consider the social and moral assumptions about the relationship between a person and a thing on which Property Law is premised. Since the struc-ture of Property Law is configured to particular types of relationships that arise between a person and a thing, in order to understand the structure of Property Law we must explore the concept of Property Law. It is tempting to conceptualise property rights in terms of ‘things-ness’. However, a definition of property rights as ‘rights in things’ must presuppose a definition of ‘things’ that is neither circular (that is, it avoids the danger of defin-ing ‘things’ with reference to what we consider to be items of property) nor con-testable (that is, it accounts for borderline cases, such as the ‘attached’ body, statutory codes and intellectual property). A wider approach is instead taken here. It will be assumed that all branches of law concern a rights-holder, a duty-bearer, a thing and an activity. Where branches of law differ is how these basic features of law are organised in relation to each other. Importantly, this provides a way of viewing multiple branches of law through a common and neutral framework. Here, two conceptual distinctions will be drawn. First, where branches of law can differ is in terms of whether the thing or the activity is the focal point for the legal relationship between rights-holder and duty-bearer. ‘Exclusionary rights’ have the thing as the focal point of the legal relationship, whereas ‘interactive rights’ have the activity as the focal point of the legal relationship.

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