#8367 - Introduction To Property Law - Property Law

Test 1 – Compiled notes:

1. What is property?

Definition:

An object over which an individual can exert control, and in return, which gives him rights in relation to its use (against the world)

To have property in something, need:

- actual control over property

- common (social) recognition of your control over that property

- something we have complete ownership over

- (so) something we can exert power over

Purpose:

- means of dividing scarce resources

- right to access resources (common law property says all have access, no exclusion but no incentives for most efficient use)

- exclusive control over resources

Effect:

- gives us both ownership and lesser rights (owner can divide property right lesser rights)

- defines our relationships with objects defines our relationship with people

- welfare, happiness, utility (means to an end; e.g. creation of g/s, use and enjoyment)

- power (rights against thingsothers depend on your access to themothers under dutyowner c. power)

- status (monetary value standing in society)

- autonomy (ability to make decisions sans dependence on others)

Arguments for and against property:

NB: - the greater the protection states place on property, the more important our right to property becomes

- e.g. in USA and Ireland, property is constitutionally protected

2. Types of property:

Property

Personal Property Real Property

(non-land) (interests in land except leaseholds)

Incorporeal heriditaments Corporeal heriditaments

(property rights over land in another’s possession) (physical things)

Freehold interests Chattel interests

(right for indeterminate time) (right is for a determinate amount of time)

- real property is essentially interests in land which arise from res (the thing)

- because when someone did something to this kind of property, P was entitled to get it (thing) back

- personal property is essentially other property interests (e.g. chattels etc.)

- because in the past, interference with such property meant P was entitled to damages, not the thing itself

3. Property rights:

- SO:

Rights

In rem In personam

(proprietary rights) (personal rights)

Real property Personal property

NB: distinction between real/personal property and in rem/in personam is that the former talks about property and the latter about types of right

Property rights are different from other rights in that:

- property right is a right that the law will uphold against people in general; i.e. in rem right

- the whole world OR

- everyone except a specified class of exceptions

- equitable property rights bind all the world except the good faith purchaser

- any other right is:

- right in the specific behavious of some person (e.g. right to contract performance)

- so one that the law will uphold only against specific person(s); i.e. in personam right

Thinkers:

4. Common law concept of property:

a. Bundle of rights and ownership:

Hohfield’s analysis of rights:

- “right” refers to a number of distinct jural relationships between persons including:

- claim rights of A (correlates to duty of B)

- privileges/liberties of A (correlates with no-right of B)

- power of A (correlates with disability of B)

- immunity of A (correlates with disability of B)

- right to the land

- liberty to do what you will (almost) to your land

- power to change your legal relationship to your land (e.g. parcel out lesser rights)

- immunity from having your land taken away from you

- NB: “right” includes right to giving yourself a no-right re the land; but can easily revoke this coz prop. right

- the law can change your relationship with the thing

Honore’s “Ownership” Bundle:

Involves the following rights:

- Persevere (possess)

- Until (use)

- Mental (manage)

- Inability (income)

- Claims (capital)

- Stupendous (security)

- Triumph (transmissibility)

- Against (absence of term)

- Desperate (duty to prevent harm to others)

- Law-student (liability to execution to pay debts)

1. Right to Possess

- exclusive physical control of a thing/ OR such control as the nature of the thing admits

- the right (claim) to be put in and remain in exclusive control; AND

- the claim that others should not without permission, interfere

- essence of the right to possess that it is in rem:

- BUT doesn’t mean owner is entitled to exclude everyone from their property

- though, general licence to enter others’ property would end institution of landowning as we now know it

Remedies:

- ejectment, wrongful detention and vidicatio enable P get right back

- most of the remedies also available to persons with a right to possess falling short of ownership

- some available to mere possessors

- in some cases remedies aren’t available, e.g. voluntarily parted with possession temporarily (hiring out)

2. Right to use:

- owner’s personal use and enjoyment of the thing owned (on owner’s discretion)

- so excludes management and income

- fact that certain use limitations are also standard ownership incidents does not detract from its importance

- coz standard limitations are precisely defined, while the permissible types of use constitute an open list

3. Right to manage:

- right to decide how and by whom the thing owned shall be used

- depends, legally, on a cluster of powers

- licensing acts which would be otherwise unlawful

- contracting

- admit others to one’s land

- permit others to use one’s things

- define the limits of such permission

- contract effectively re. the use and exploitation of the thing

4. Right to income:

Income in the more ordinary sense (fruits, rents, profits) may be thought of as a surrogate of use, a benefit derived from forgoing personal use of a thing and allowing others to use it for rewards.

5. Right to capital:

- owner should be able to look forward to remaining owner indefinitely upon choice + solvency

- legally immunity from expropriation (transmission of ownership is consensual, except when bankrupt)

6. Right to security:

7. Incident of transmissibility:

- unlimited duration (perpétuité) comprises of at least two elements: transmissibility and absence of term

- transmissibility is where interest can be transmitted to the holder’s successors and so on ad infinitum

- more valuable than interest which stops with his death

- better price for property in question

8. Incident of absence of term:

- it is not certain to determine at a future date (absence of term)

- laws usually provide for

- determinate interest (to determine at future date/on certain future event occurrence e.g. leases)

- indeterminate interests (interests like such as ownership and easements, to which no term is set)

- determinable interest...