Property law

Property law is the area of law that rules the various form of possession in real property (land as different from personal or variable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division amid movable and immovable property. Movable property roughly corresponds to personal property, while fixed property corresponds to real estate or real property, and the associated rights and compulsion 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 during feudal land tenure or other feudal systems of loyalty & fealty.


Though the Napoleonic code was among the first government acts of modern times to introduce the notion of absolute ownership into statute, defense 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'

Modern textbook on property law states:

When a layman is asked to define "property," he is possible 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 perspective for at least two reasons: (1) it confuses "property" with the various subjects of "property," and (2) it fails to recognize that still 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 lawfully 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 "[i]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 organize 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' affirmed ownership in and of itself is insufficient to compose 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 hold 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.

English Law of personal property

PERSONAL PROPERTY, a branch of the core division of the English law of property, the other being "real property." The separation of property into real and individual represents in a great measure the division into immovable and movable incidentally recognized in Roman law and generally adopted since. "Things personal," according to Blackstone, "are goods, money, and all other movables which may attend the owner's person wherever he thinks proper to go". This recognition of things personal with movables, though logical in theory, does not, as will be seen, absolutely express the English law, owing to the somewhat anomalous place of chattels real. In England real property is supposed to be superior in self-esteem to personal property, which was initially of little significance from a legal point of view. This view is the result of feudal ideas, and had no place in the Roman system, in which immovable and movables were dealt with as far as probable in the same method, and descended according to the same rules. The main differences among real and personal property which still exist in England are these. (I) In real property there can be nothing more than limited ownership; there can be no estate properly so called in personal property, and it may be held in total ownership. There is nothing equivalent to an estate-tail in personal property; words which in real property would create an estate-tail will give an absolute attention in personality. A life-interest may, however, be given in personality. Limitations of personal property, equally with those of real property, fall inside the rule against perpetuities. (2) Personal property is not subject to various incidents of real property, such as rent, dower or escheat. (3) On the death of the owner intestate real property descends to the heir; personal property is divided according to the Statute of Distributions. (4) Real property as a general rule must be transferred by deed; personal property does not need so solemn a mode of transfer. (5) Contracts relating to real property must be in writing by the Statute of Frauds, 29 Car. II. c. 3, s. 4; contracts relating to personal property need only be in writing when it is expressly so provided by statute, as, for instance, in the cases falling under s. 17 of the Statute of Frauds. (6) A will of lands need not be proved, but a will of personalty or of personal and real property together must be proved in order to give a title to those claiming under it. (7) Devises of real estate fall as a rule within the Mortmain Acts bequests of personal property, other than chattels real, are not within the act. (8) Mortgages of real property need not generally be registered; mortgages of personal property for the most part require registration under the Bills of Sale Acts.

Personal estate is divided in English law into chattels real and chattels personal; the latter are again divided into choses in possession and choses in action.

Interest in personal property may be either absolute or qualified. The latter case is illustrated by animals ferae naturae, in which property is only coextensive with detention. Personal property may be acquired by occupancy (including the accessio, commixtio, and confusio of Roman law), by invention, as patent and copyright, or by transfer, either by the act of the law (as in bankruptcy, judgment and intestacy), or by the act of the party (as in gift, contract and will).

There are several cases in which, by statute or otherwise, property is taken out of the class of real or personal to which it seems obviously to belong. By the operation of the equitable doctrine of conversion money directed to be employed in the purchase of land, or land directed to be turned into money, is in general regarded as that species of property into which it is directed to be converted. An example of property prima facie real which is treated as personal is an estate pur autre vie, which, since 14 Geo. II. c. 20, s. 9,1740-1741(now replaced by the Wills Act 1837, s. 6) is distributable as personal property in the absence of a special occupant. Examples of property prima facie personal which is treated as real are fixtures, heirlooms, such as deeds and family portraits, and shares in some of the older companies, as the New River Company, which are real estate by statute. In normal cases shares in companies are personal property, unless the shareholders have individually some interest in the land as land.

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reference - wikipedia.org

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