Property law is the area of
lawLaw is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
that governs the various forms of
ownershipOwnership 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. The concept of ownership has...
in
real propertyIn English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
(land as distinct from personal or movable possessions) and in
personal propertyPersonal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
, within the
common lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal system. In the
civil lawCivil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to
real estateIn general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...
or real property, and the associated rights and obligations thereon.
The concept, idea or
philosophyPhilosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
of
propertyProperty is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
underlies all property law. In some
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s, historically all property was owned by the
monarchA monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
and it devolved through
feudal land tenureUnder the English feudal system several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perpetual, or non-free where the tenancy terminated on the...
or other feudal systems of
loyaltyLoyalty is faithfulness or a devotion to a person, country, group, or cause There are many aspects to...
and
fealtyAn oath of fealty, from the Latin fidelitas , is a pledge of allegiance of one person to another. Typically the oath is made upon a religious object such as a Bible or saint's relic, often contained within an altar, thus binding the oath-taker before God.In medieval Europe, fealty was sworn between...
.
Though the Napoleonic code was among the first
governmentGovernment refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
acts of
modern timesModern Times can refer to modern history.It may also refer to:* Modern Times , a 1936 Charlie Chaplin film* Modern Times , a 1975 album by Al Stewart...
to introduce the notion of absolute ownership into
statuteA statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, protection of personal property rights was present in medieval
Islamic lawSharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
and
jurisprudenceFiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
, and in more
feudalistFeudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...
forms in the common law courts of medieval and early modern England.
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. 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.
Early American theory
James WilsonJames Wilson was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was elected twice to the Continental Congress, and was a major force in drafting the United States Constitution...
,
U.S. Supreme CourtThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
Justice and professor of law at the
University of PennsylvaniaThe University of Pennsylvania is a private, Ivy League university located in Philadelphia, Pennsylvania, United States. Penn is the fourth-oldest institution of higher education in the United States,Penn is the fourth-oldest using the founding dates claimed by each institution...
, 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
VirginiaThe Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
but also ancient
SpartaSparta or Lacedaemon, was a prominent city-state in ancient Greece, situated on the banks of the River Eurotas in Laconia, in south-eastern Peloponnese. It emerged as a political entity around the 10th century BC, when the invading Dorians subjugated the local, non-Dorian population. From c...
.
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 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. but 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
John Hardy from the Legal institute of England stated "For the title to be valid, we must incorporate the company or association for the living" This statement has been used thoroughly
Property rights and contractual rights
Property rights are rights over things enforceable against all other persons. By contrast,
contractA contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
ual 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
licenseThe verb license or grant licence means to give permission. The noun license or licence refers to that permission as well as to the document recording that permission.A license may be granted by a party to another party as an element of an agreement...
. 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 rightsPersonal rights are the rights that a person has over their own body. Among personal rights are associated rights to protect and safeguard the body, most obviously protected by the torts of assault and battery...
. Practically all contemporary societies acknowledge this basic ontological and ethical distinction. In the past, groups lacking
political powerPolitical power is a type of power held by a group in a society which allows administration of some or all of public resources, including labour, and wealth. There are many ways to obtain possession of such power. At the nation-state level political legitimacy for political power is held by the...
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
slaverySlavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
.) More commonly, marginalized groups have been denied legal rights to own property. These include
JewsThe Jews , also known as the Jewish people, are a nation and ethnoreligious group originating in the Israelites or Hebrews of the Ancient Near East. The Jewish ethnicity, nationality, and religion are strongly interrelated, as Judaism is the traditional faith of the Jewish nation...
in
EnglandEngland is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
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
reputationReputation of a social entity is an opinion about that entity, typically a result of social evaluation on a set of criteria...
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,
organsIn biology, an organ is a collection of tissues joined in structural unit to serve a common function. Usually there is a main tissue and sporadic tissues . The main tissue is the one that is unique for the specific organ. For example, main tissue in the heart is the myocardium, while sporadic are...
and other body parts.
There have been recent cases of women being subordinated to the
fetusA fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
, through the imposition of unwanted caesarian sections.
EnglishEngland is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
judges have recently made the point that such women lack the right to exclusive control over their own bodies, formerly considered a fundamental
common-lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
right. In the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
, a "
quasi-propertyQuasi-property is a legal concept, in which some rights similar to ownership may accrue to a party who does an act which benefits society as a whole. Black's Law Dictionary defines "quasi" as being "almost" or "resembling" - but not actually the same as the suffix item...
" 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
biotechnologicalBiotechnology is a field of applied biology that involves the use of living organisms and bioprocesses in engineering, technology, medicine and other fields requiring bioproducts. Biotechnology also utilizes these products for manufacturing purpose...
processes and products based on
humanHumans are the only living species in the Homo genus...
genetic material may be characterised as creating property in human life.
A particularly difficult question is whether people have rights to
intellectual propertyIntellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
developed by others from their
body partsBody Parts may refer to:* Body Parts , starring Paul Ben-Victor and Kim Delaney* "Body Parts" , a 1996 episode of Star Trek: Deep Space Nine...
. In the pioneering case on this issue, the
Supreme Court of CaliforniaThe Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
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
terminologyTerminology is the study of terms and their use. Terms are words and compound words that in specific contexts are given specific meanings, meanings that may deviate from the meaning the same words have in other contexts and in everyday language. The discipline Terminology studies among other...
. 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
intestacyIntestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
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. 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:
- corporeal hereditaments – tangible real property (land)
- 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 usual way of acquiring an interest in property is as the result of a consensual transaction with the previous owner, for example, a
saleA sale is the act of selling a product or service in return for money or other compensation. It is an act of completion of a commercial activity....
or a
giftA gift or a present is the transfer of something without the expectation of receiving something in return. Although gift-giving might involve an expectation of reciprocity, a gift is meant to be free. In many human societies, the act of mutually exchanging money, goods, etc. may contribute to...
. 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
fraudIn criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
, 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.
but 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
companyA company is a form of business organization. It is an association or collection of individual real persons and/or other companies, who each provide some form of capital. This group has a common purpose or focus and an aim of gaining profits. This collection, group or association of persons can be...
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
John Hardy from the Legal institute of England stated "For the title to be valid, we must incorporate the company or association for the living" This statement has been used thoroughly.
Lease
Historically,
leaseA lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...
s 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
agricultureAgriculture is the cultivation of animals, plants, fungi and other life forms for food, fiber, and other products used to sustain life. Agriculture was the key implement in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that nurtured the...
until the late eighteenth century and early nineteenth century, when the growth of cities made the leasehold an important form of landholding in
urban areaAn urban area is characterized by higher population density and vast human features in comparison to areas surrounding it. Urban areas may be cities, towns or conurbations, but the term is not commonly extended to rural settlements such as villages and hamlets.Urban areas are created and further...
s.
The modern law of
landlordA landlord is the owner of a house, apartment, condominium, or real estate which is rented or leased to an individual or business, who is called a tenant . When a juristic person is in this position, the term landlord is used. Other terms include lessor and owner...
and
tenantA leasehold estate is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord....
in common law jurisdictions retains the influence of the common law and, particularly, the
laissez-faireIn economics, laissez-faire describes an environment in which transactions between private parties are free from state intervention, including restrictive regulations, taxes, tariffs and enforced monopolies....
philosophy that dominated the law of
contractA contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
and the law of property in the 19th century. With the growth of
consumerismConsumerism is a social and economic order that is based on the systematic creation and fostering of a desire to purchase goods and services in ever greater amounts. The term is often associated with criticisms of consumption starting with Thorstein Veblen...
, the law of
consumer protectionConsumer protection laws designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional...
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
- Claim club
Claim clubs, also called Actual Settlers' Associations or Squatters' Clubs, were a nineteenth century phenomenon in the American West. Usually operating within a confined local jurisdiction, these pseudo-governmental entities sought to regulate land sales in places where there was little or no...
- Conversion (law)
Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another. It is a tort of strict liability...
- Detinue
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor...
- Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
- Rei vindicatio
Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing...
- Replevin
In creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the...
- Trover
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...