Property law

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Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights, and obligations thereon.

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties.

Real property legal term; property consisting of land and the buildings on it

Real property, real estate, realty, or immovable property In English common law refers to landed properties belonging to some person. It include all structures, crops, buildings, machinery, wells, dams, ponds, mines, canals, and roads, among other things. The term is historic, arising from the now-discontinued form of action, which distinguish between real property disputes and personal property disputes. Personal property was, and continues to refer to all properties that are not real properties.

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The concept, idea or philosophy of property underlies all property law. In some jurisdictions, historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty.

Philosophy intellectual and/or logical study of general and fundamental problems

Philosophy is the study of general and fundamental questions about existence, knowledge, values, reason, mind, and language. Such questions are often posed as problems to be studied or resolved. The term was probably coined by Pythagoras. Philosophical methods include questioning, critical discussion, rational argument, and systematic presentation. Classic philosophical questions include: Is it possible to know anything and to prove it? What is most real? Philosophers also pose more practical and concrete questions such as: Is there a best way to live? Is it better to be just or unjust? Do humans have free will?

Property, in the abstract, is what belongs to or with something, whether as an attribute or as a component of said thing. In the context of this article, it is one or more components, whether physical or incorporeal, of a person's estate; or so belonging to, as in being owned by, a person or jointly a group of people or a legal entity like a corporation or even a society. Depending on the nature of the property, an owner of property has the right to consume, alter, share, redefine, rent, mortgage, pawn, sell, exchange, transfer, give away or destroy it, or to exclude others from doing these things, as well as to perhaps abandon it; whereas regardless of the nature of the property, the owner thereof has the right to properly use it, or at the very least exclusively keep it.

Jurisdiction is the practical authority granted to a legal body to administer justice within a defined field of responsibility, e.g., Michigan tax law. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels; e.g. the court has jurisdiction to apply federal law.

Though the Napoleonic code was among the first government acts of modern times to introduce the notion of absolute ownership into statute, protection of personal property rights was present in medieval Islamic law and jurisprudence, [1] and in more feudalist forms in the common law courts of medieval and early modern England as well

A government is the system or group of people governing an organized community, often a state.

Modern history Era from ca. 1500 until present

Modern history, the modern period or the modern era, is the linear, global, historiographical approach to the time frame after post-classical history. Modern history can be further broken down into periods:

Statute Formal written document that creates law

A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by legislative bodies; they are distinguished from case law or precedent, which is decided by courts, and regulations issued by government agencies.

Theory

The word property, in everyday usage, refers to an object (or objects) owned by a person — a car, a book, or a cellphone — and the relationship the person has to it. [2] In law, the concept acquires a more nuanced rendering. Factors to consider include the nature of the object, the relationship between the person and the object, the relationship between a number of people in relation to the object, and how the object is regarded within the prevailing political system. Most broadly and concisely, property in the legal sense refers to the rights of people in or over certain objects or things. [3]

Anglo-American theory

James Wilson, U.S. Supreme Court Justice and professor of law at the University of Pennsylvania, in 1790 and 1791, undertook a survey of the philosophical grounds of American property law. He proceeds from two premises: “Every crime includes an injury: every injury includes a violation of a right.” (Lectures, III, ii.) The government’s role in protecting property depends upon an idea of right. Wilson traces the history of property in his essay "On the History of Property." In his lecture, "Of the natural rights of individuals" (Lectures II, xii), he articulates related contemporary theory.

James Wilson one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence

James Wilson was one of the Founding Fathers of the United States and a signatory of the United States Declaration of Independence and the United States Constitution. Wilson was elected twice to the Continental Congress, where he represented Pennsylvania, and was a major force in drafting the United States Constitution. A leading legal theorist, he was one of the six original justices appointed by George Washington to the Supreme Court of the United States.

Supreme Court of the United States Highest court in the United States

The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. Established pursuant to Article III of the U.S. Constitution in 1789, it has original jurisdiction over a narrow range of cases, including suits between two or more states and those involving ambassadors. It also has ultimate appellate jurisdiction over all federal court and state court cases that involve a point of federal constitutional or statutory law. The Court has the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution or an executive act for being unlawful. However, it may act only within the context of a case in an area of law over which it has jurisdiction. The court may decide cases having political overtones, but it has ruled that it does not have power to decide nonjusticiable political questions.

University of Pennsylvania Private Ivy League research university in Philadelphia, Pennsylvania

The University of Pennsylvania is a private Ivy League research university in Philadelphia, Pennsylvania. It is one of the nine colonial colleges founded prior to the Declaration of Independence and the first institution of higher learning in the United States to refer to itself as a university. Benjamin Franklin, Penn's founder and first president, advocated an educational program that trained leaders in commerce, government, and public service, similar to a modern liberal arts curriculum.

That theory was brought to a focus on the question of whether man exists for the sake of government, or government for the sake of man – a distinction which may derive from, or lead to, the question of natural and absolute rights, and whether property is one of them. While he doubts this is so, he nonetheless states: “In his unrelated state, man has a natural right to his property, to his character, to liberty, and to safety.” [4] James Wilson asks whether “the primary and principal object in the institution of government… was… to acquire new rights by human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of those rights….?” He indicates a preference for the latter. [5]

In the opening sentence of "On the History of Property," he states quite clearly: “Property is the right or lawful power, which a person has to a thing.” He then divides the right into three degrees: possession, the lowest; possession and use; and, possession, use, and disposition – the highest. Further, he states: “Man is intended for action. Useful and skillful industry is the soul of an active life. But industry should have her just reward. That reward is property, for of useful and active industry, property is the natural result.” From this simple reasoning he is able to present the conclusion that exclusive, as opposed to communal property, is to be preferred. Wilson does, however, give a survey of communal property arrangements in history, not only in colonial Virginia but also ancient Sparta.

Non-legally recognized or documented property rights are known as informal property rights. These informal property rights are non-codified or documented, but recognized among local residents to varying degrees.

Priority

Different parties may claim a competing interest in the same property by mistake or by fraud. For example, the party creating or transferring an interest may have a valid title, but may intentionally or negligently create several interests wholly or partially inconsistent with each other. A court resolves the dispute by adjudicating the priorities of the interests. The term "transfer of property" generally means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons. To transfer property is to perform such an act.

Property rights and rights to people

Property rights are rights over things enforceable against all other persons. By contrast, contractual rights are rights enforceable against particular persons. Property rights may, however, arise from a contract; the two systems of rights overlap. In relation to the sale of land, for example, two sets of legal relationships exist alongside one another: the contractual right to sue for damages, and the property right exercisable over the land. More minor property rights may be created by contract, as in the case of easements, covenants, and equitable servitudes.

A separate distinction is evident where the rights granted are insufficiently substantial to confer on the nonowner a definable interest or right in the thing. The clearest example of these rights is the license. In general, even if licenses are created by a binding contract, they do not give rise to property interests.

Property rights and personal rights

Property rights are also distinguished from personal rights. Practically all contemporary societies acknowledge this basic ontological and ethical distinction. In the past, groups lacking political power have often been disqualified from the benefits of property. In an extreme form, this has meant that people have become "objects" of property—legally "things" or chattels (see slavery.) More commonly, marginalized groups have been denied legal rights to own property. These include Jews in England and married women in Western societies until the late 19th century.

The dividing line between personal rights and property rights is not always easy to draw. For instance, is one's reputation property that can be commercially exploited by affording property rights to it? The question of the proprietary character of personal rights is particularly relevant in the case of rights over human tissue, organs and other body parts.

The rights of women to control their own body have been in some times and some places subordinated to other people's control over their fetus. For example, government intervention that controls the conditions of birthing by prohibiting or requiring caesarian sections. Whether and how a woman becomes pregnant or carries a pregnancy to term is also subject to laws mandating or forbidding abortion, or restricting access to birth control. A woman's right to control her body during pregnancy or possible pregnancy – what work she does, what food or substances she ingests, other activities she engages in – have also frequently been subject to restrictions by many other parties; in response, a number of countries have passed laws banning pregnancy discrimination. English judges have recently made the point that such women lack the right to exclusive control over their own bodies, formerly considered a fundamental common-law right.[ citation needed ]

In the United States, a "quasi-property" interest has been explicitly declared in the dead body. Also in the United States, it has been recognised that people have an alienable proprietary "right of publicity" over their "persona". The patent/patenting of biotechnological processes and products based on human genetic material may be characterised as creating property in human life.

A particularly difficult question is whether people have rights to intellectual property developed by others from their body parts. In the pioneering case on this issue, the Supreme Court of California held in Moore v. Regents of the University of California (1990) that individuals do not have such a property right.

Classification

Property law is characterised by a great deal of historical continuity and technical terminology. The basic distinction in common law systems is between real property (land) and personal property (chattels).

Before the mid-19th century, the principles governing the transfer of real property and personal property on an intestacy were quite different. Though this dichotomy does not have the same significance anymore, the distinction is still fundamental because of the essential differences between the two categories. An obvious example is the fact that land is immovable, and thus the rules that govern its use must differ. A further reason for the distinction is that legislation is often drafted employing the traditional terminology.

The division of land and chattels has been criticised as being not satisfactory as a basis for categorising the principles of property law since it concentrates attention not on the proprietary interests themselves but on the objects of those interests. [6] Moreover, in the case of fixtures, chattels which are affixed to or placed on land may become part of the land.

Real property is generally sub-classified into:

  1. corporeal hereditaments – tangible real property (land)
  2. incorporeal hereditaments – intangible real property such as an easement of way

Possession

The concept of possession developed from a legal system whose principal concern was to avoid civil disorder. The general principle is that a person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to do so.

In England, the Torts (Interference with Goods) Act 1977 has significantly amended the law relating to wrongful interference with goods and abolished some longstanding remedies and doctrines.

Transfer of property

The most common method of acquiring an interest in property is as the result of a consensual transaction with the previous owner, for example, a sale or a gift. Dispositions by will may also be regarded as consensual transactions, since the effect of a will is to provide for the distribution of the deceased person's property to nominated beneficiaries. A person may also obtain an interest in property under a trust established for his or her benefit by the owner of the property.

It is also possible for property to pass from one person to another independently of the consent of the property owner. For example, this occurs when a person dies intestate, goes bankrupt, or has the property taken in execution of a court judgment.

Priority

Different parties may claim an interest in property by mistake or fraud, with the claims being inconsistent of each other. For example, the party creating or transferring an interest may have a valid title, but intentionally or negligently creates several interests wholly or partially inconsistent with each other. A court resolves the dispute by adjudicating the priorities of the interests. According to the Indian property law, it define the ‘Transfer of property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and "to transfer property" is to perform such act.

In this section "living person includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

Lease

Historically, leases served many purposes, and the regulation varied according to intended purposes and the economic conditions of the time. Leaseholds, for example, were mainly granted for agriculture until the late eighteenth century and early nineteenth century, when the growth of cities made the leasehold an important form of landholding in urban areas.

The modern law of landlord and tenant in common law jurisdictions retains the influence of the common law and, particularly, the laissez-faire philosophy that dominated the law of contract and the law of property in the 19th century. With the growth of consumerism, the law of consumer protection recognised that common law principles assuming equal bargaining power between parties may cause unfairness. Consequently, reformers have emphasised the need to assess residential tenancy laws in terms of protection they provide to tenants. Legislation to protect tenants is now common.

See also

Notes

  1. Makdisi, John (2005). Islamic Property Law: Cases and Materials for Comparative Analysis with the Common Law. Carolina Academic Press. ISBN   1-59460-110-0
  2. Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J. MARSHALL REV. INTELL. PROP. L. 604 (2016) https://repository.jmls.edu/cgi/viewcontent.cgi?article=1392&context=ripl
  3. Badenhorst, PJ, Juanita M. Pienaar, and Hanri Mostert. Silberberg and Schoeman's The Law of Property. 5th Edition. Durban: LexisNexis/Butterworths, 2006, p. 9.
  4. "Of the Natural Rights of Individuals | Teaching American History". teachingamericanhistory.org. Retrieved 2018-03-24.
  5. Dreisbach, Daniel L.; Hall, Mark D.; Morrison, Jeffry H. (2004-10-08). The Founders on God and Government. Rowman & Littlefield Publishers. ISBN   9780742580466.
  6. Felix Cohen, "Dialogue on Private Property" (1954) Rutgers LR 357.

Related Research Articles

In law, possession is the control a person's intentional exercises toward a thing. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property. Like ownership, the possession of anything is commonly regulated by country under property law.

Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables – any property that can be moved from one location to another.

In property law, a title is a bundle of rights in a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, possession and title may each be transferred independently of the other. For real property, land registration and recording provide public notice of ownership information.

A lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the lienee and the person who has the benefit of the lien is referred to as the lienor or lien holder.

In common law and statutory law, a life estate is the ownership of land for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may revert to the original owner, or it may pass to another person. The owner of a life estate is called a "life tenant".

A bill of sale is a document that transfers ownership of goods from one person to another. It is used in situations where the former owner transfers possession of the goods to a new owner. Bills of sale may be used in a wide variety of transactions: people can sell their goods, exchange them, give them as gifts or mortgage them to get a loan. They can only be used:

Hypothec, sometimes tacit hypothec, is a term used in mixed legal systems to refer to an express or implied non-possessory real security over corporeal movable property. At common law it is equivalent to an American non-possessory lien or English legal charge.

Fixture (property law) legal concept

A fixture, as a legal concept, means any physical property that is permanently attached (fixed) to real property Property not affixed to real property is considered chattel property. Fixtures are treated as a part of real property, particularly in the case of a security interest. A classic example of a fixture is a building, which—in the absence of language to the contrary in a contract of sale—is considered part of the land itself and not a separate piece of property. Generally speaking the test for deciding whether an article is a fixture or a chattel turns on the purpose of attachment. If the purpose was to enhance the land the article is likely a fixture. If the article was affixed to enhance the use of the chattel itself, the article is likely a chattel.

Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the property itself.

Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it – property that is fixed to the earth, such as land or a house. Immovable property includes premises, property rights, houses, land and associated goods, and chattels if they are located on, or below, or have a fixed address. It is delimited by geographic coordinates or by reference to local landmarks, depending on the jurisdiction.

Security interest legal concept

A security interest is a legal right granted by a debtor to a creditor over the debtor's property which enables the creditor to have recourse to the property if the debtor defaults in making payment or otherwise performing the secured obligations. One of the most common examples of a security interest is a mortgage: When person, by the action of an expressed conveyance, pledges by a promise to pay a certain sum of money, with certain conditions, on a said date or dates for a said period, that action on the page with wet ink applied on the part of the one wishing the exchange creates the original funds and negotiable Instrument. That action of pledging conveys a promise binding upon the mortgagee which creates a face value upon the Instrument of the amount of currency being asked for in exchange. It is therein in good faith offered to the Bank in exchange for local currency from the Bank to buy a house. The particular country's Bank Acts usually requires the Banks to deliver such fund bearing negotiable instruments to the Countries Main Bank such as is the case in Canada. This creates a security interest in the land the house sits on for the Bank and they file a caveat at land titles on the house as evidence of that security interest. If the mortgagee fails to pay defaulting in his promise to repay the exchange, the bank then applies to the court to for-close on your property to eventually sell the house and apply the proceeds to the outstanding exchange.

Australian property law is the system of laws regulating and prioritising the Property law rights, interests and responsibilities of individuals in relation to "things". These things are a form of "property" or "right" to possession or ownership of an object. The law orders or prioritises rights and classifies property as either real and tangible, such as land, or intangible, such as the right of an author to their literary works or personal but tangible, such as a book or a pencil. The scope of what constitutes a thing capable of being classified as property and when an individual or body corporate gains priority of interest over a thing has in legal scholarship been heavily debated on a philosophical level.

A servitude is a qualified beneficial interest severed or fragmented from the ownership of an inferior property and attached to a superior property or to some person other than the owner. At civil law, ownership (dominium) is the only full real right whereas a servitude is a subordinate real right on par with wayleaves, real burdens, security interests, and reservations. There are two types: predial, attaching to property, and personal, attaching to a person.

In property law and real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of the property. Future interests are created on the formation of a defeasible estate; that is, an estate with a condition or event triggering transfer of possessory ownership. A common example is the landlord-tenant relationship. The landlord may own a house, but has no general right to enter it while it is being rented. The conditions triggering the transfer of possession, first to the tenant then back to the landlord, are usually detailed in a lease.

English property law refers to the law of acquisition, sharing and protection of valuable assets in England and Wales. While part of the United Kingdom, many elements of Scots property law are different. In England, property law encompasses four main topics:

Conversion is an intentional tort consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In the United Kingdom, it is a tort of strict liability. Its equivalents in criminal law include larceny or theft and criminal conversion. In those jurisdictions that recognise it, criminal conversion is a lesser crime than theft/larceny.

English personal property law is a branch of English property law concerned with non-land based property interests.

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