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of Ownership in Real Property

Property law is the area of law that governs the various forms of ownership 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.

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.

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, and in more feudalist forms in the common law courts of medieval and early modern England.

Definition

In Roman law, property was defined as follows: ius utendi et abutendi re sua, quatenus iuris ratio patitur, 'the right to use and abuse a thing, within the limits of the law' (Justinian, Code 4, 35, 21; see also, commentary by P.J. Proudhon in ch. 2 of What is Property? ).

One modern textbook on property law states:

When a layman is asked to define "property," he is likely to say that "property" is something tangible "owned" by a natural person (or persons), a corporation, or a unit of government. But such a response is inaccurate from a lawyer's viewpoint for at least two reasons: (1) it confuses "property" with the various subjects of "property," and (2) it fails to recognize that even the subjects of property may be intangible. For a lawyer, "property" is not a "thing" at all, although "things" are the subject of property. Rather, as Jeremy Bentham asserted, property is a legally protected "expectation * * * of being able to draw such or such an advantage from the thing" in question Black's Law Dictionary (5th ed. 1979) states that n the strict legal sense, property is an aggregate of rights which are guaranteed and protected by the government" and that the term property "includes not only ownership and possession but also the right of use and enjoyment for lawful purposes."

By contrast, Barron's Law Dictionary (2d ed. 1984) defines property as "one's exclusive right to possess, use, and dispose of a thing" "as well as the object, benefit, or prerogative which constitutes the subject matter of that right."

Property law, in systems derived from English common law, is divided into personal and real property. Gray & Gray (1998) describe the definition of property in the modern sense as oscillating between 'competing models of property as a fact, property as a right, and property as a responsibility' Declared ownership in and of itself is insufficient to constitute property in a legal sense. Rather, the notion of property arises where one can have his/her right to land or chattels respected and enforced by a court of law. Therefore to possess good title (and thus enforceable rights) on property one must acquire it legitimately, according to the laws of the jurisdiction in which one seeks enforcement.

Early 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.

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.” 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.

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 skilful 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.

Property rights are rights over things enforceable against other persons. By contrast, contractual rights are rights enforceable against particular persons. Property rights, however, may arise from a contract, so there is an overlap between the two systems of rights. In relation to the sale of land, for example, two sets of legal relationships exist alongside one another: the personal right to sue for damages on the contract, and the proprietary right exercisable over the thing.

A separate distinction is evident where rights granted are insufficiently substantial to confer on the non-owner a definable interest 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 proprietary interests.

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 persons have become "objects" of property right, 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 which 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.

There have been recent cases of women being subordinated to the fetus, through the imposition of unwanted caesarian sections. 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. In the United States, a "quasi-property" interest has been explicitly declared in the dead body. Also in the United States, it has been recognized that people have an alienable proprietary "right of publicity" over their "persona". The patenting of biotechnological processes and products based upon human genetic material may be characterized as creating property in human life.

Property law is characterized 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 devolution 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 criticized as being not satisfactory as a basis for categorizing the principles of property law since it concentrates attention not on the proprietary interests themselves but on the objects of those interests. 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

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 the United Kingdom, 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.

The most usual way 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.

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.

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 recognized that common law principles assuming equal bargaining power between parties may cause unfairness. Consequently, reformers have emphasized the need to assess residential tenancy laws in terms of protection they provide to tenants. Legislation to protect tenants is now common.