PROPERTY

JURISPRUDENCE AND LEGAL THEORY

 PROPERTY RIGHTS
• Overview of Property in Civil Law
• In civil law, substantive legal rights are categorized into three main branches:
• Law of Property – dealing with proprietary rights in rem (rights enforceable against the world).
• Law of Obligations – involving proprietary rights in personam (rights enforceable against
specific individuals).
• Law of Status – addressing personal or non-proprietary rights, whether in rem or in personam.
• Multiple Meanings of the Term “Property”
• The term "property" has evolved and is used in various senses, each with a different
scope:
• Property as All Legal Rights (Broadest Sense): In its widest and now mostly obsolete sense,
“property” includes all of a person’s legal rights, whether personal or proprietary.
• Historical examples:
• Blackstone described a master’s right over a servant or a father’s right over his child as
“property.”
• Hobbes listed life, limbs, affection, and means of living as property.
• Locke famously stated, “every man has a property in his own person,” including life, liberty, and
estate.
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• Multiple Meanings of the Term “Property”
• Property as Proprietary Rights Only
•A more common modern usage limits "property" to proprietary (economic)
rights, excluding personal rights. Property in this sense includes land, chattels,
debts, and shares, but not life, liberty, or reputation.
• Itdistinguishes a person’s estate (property) from their status (personal
condition). This is the most frequent current usage, though not definitive due to
the word’s flexible application.
• Property as Proprietary Rights in Rem
• In the technical sense, "property" is confined to proprietary rights in rem only.
• Thisexcludes rights in personam, even if proprietary (such as contractual
benefits).
• Examples of property in this sense: freehold or leasehold estates, patents,
copyrights.
• Not considered property in this sense: debts, contractual claims.
 PROPERTY RIGHTS
• Multiple Meanings of the Term “Property”
• Property as Corporeal Property (Narrowest Sense)
• The narrowest definition refers only to corporeal property—the ownership of
tangible, material objects.
• This use equates property with physical items under a person’s control.
• Ahrens defines property as a “material object subject to a person’s immediate
power.”
• Bentham views applying the term to intangible rights as metaphorical and
improper.
• Rights in Property: Ownership vs. Encumbrances
• Ownership (jura in re propria) refers to full rights over a thing.
• Encumbrances (jura in re aliena) are partial rights that limit someone else’s
ownership—like leases, mortgages, or servitudes.
• Ownership rights suggest possession of the object itself, whereas encumbrances
do not.
 PROPERTY RIGHTS
• Multiple Meanings of the Term “Property”
• Material vs. Immaterial Property
• Material things: Physical objects (land, buildings, etc.).
• Immaterial things: Non-physical entities (rights, patents, goodwill, etc.).
• Property law mostly deals with material things, which form the foundation for
dividing resources among individuals.
• Proprietary Rights in Material Things
• Includes not only tangible items but also qualities of matter that can be owned:
• Force: e.g., electricity is treated as a chattel (movable property).
• Space: Definable areas of space can be legally owned, e.g., the interior of a
house or possibly airspace above land (though the extent of airspace rights is
legally debated).
 PROPERTY RIGHTS
• Multiple Meanings of the Term “Property”
• Movable vs. Immovable Property
• Movables (chattels): Items that can be moved (e.g., furniture, money).
• Immovables (land): Governed by different legal principles; more significant in
legal systems.

• Legal definition of immovables include:

•A defined land area.
• Ground beneath down to the Earth’s center.
• Possibly airspace above (debated—Coke’s “usque ad caelum” (Up to the
heavens) doctrine is controversial).
• Natural features (e.g., trees, stones, minerals).
• Human-placed items intended to be permanent (e.g., buildings), even if
not physically attached.
 PROPERTY RIGHTS
• Multiple Meanings of the Term “Property”
• Misapplication of Movable/Immovable Distinction to Rights
• The distinction logically applies only to material objects.
• However, legal systems mistakenly apply it to rights as well, due to identifying
rights with their object.
• E.g., ownership of land, easements, shares, debts, patents—though diverse, are all
lumped together as property.
• This
leads to classifying rights as movable or immovable based on their subject
matter.
• Classification of Rights Based on Subject Matter
• Rights over immovables (like land): Considered immovable rights.
• Rights over movables (like goods): Considered movable rights.
• Rightswith no material object (e.g., copyrights, patents, goodwill, contracts):
Treated as movable by default, since the movable category is the residual one.
 PROPERTY RIGHTS
• Multiple Meanings of the Term “Property”
• Legal Fiction of Localizing Rights
• Lawnot only classifies rights but also assigns them a location, even incorporeal
ones. While logical for rights tied to physical objects (e.g., land or goods), non-
physical rights require arbitrary rules:
• Servitudes: Located where the land is.
• Chattel rights: Follow the chattel's location.
• Debts: Situated where the debtor resides.
• Shares: Situated at the company’s head office.
• Goodwill: Located where the business operates.
• These rules are fictional but necessary in practice, especially for conflict of laws
and jurisdictional matters.
 PROPERTY RIGHTS
• Multiple Meanings of the Term “Property”
• Real and Personal Property
• The distinction between real and personal property is deeply tied to the earlier
division between immovable and movable property.
• Although these categories—real/immovable and personal/movable—almost
completely overlap, they are not perfectly aligned due to the historical
development of English law, rather than logical necessity.
• Therefore,
the classification of property into real and personal categories is, to
some extent, arbitrary and lacks a purely scientific foundation.
• Definitions and Characteristics
• RealProperty - Refers mainly to rights over land; Closely parallels immovable
property; Includes land and interests in land, with certain exceptions as defined
by law.
• Originates from real actions—a concept in English law derived from Roman
law's actiones in rem (actions related to rights enforceable against the world).
 PROPERTY RIGHTS
• Multiple Meanings of the Term “Property”
• Real and Personal Property
• Personal Property - Encompasses all other proprietary rights, whether they are
rights in rem (against a thing) or rights in personam (against a person).Nearly
equivalent to movable property, although it also includes some non-land-based
incorporeal rights.
• Derivesfrom personal actions, a category rooted in Roman actiones in
personam (legal actions against a person).
• The Term "Chattel" in English Law
• The word "chattel" carries three distinct meanings:
• A physical movable object, such as a horse, book, or coin—as opposed to land.
• Movable property in a broad sense, including both corporeal (tangible) and
incorporeal (intangible) property. Examples include debts, stocks, contracts,
patents, and copyrights.
• All personal property, whether movable or immovable, as long as it is not real
property. For example, leaseholds (even though related to land) are considered
chattels, because they are excluded from real property by a specific legal rule.
 PROPERTY RIGHTS
• OWNERSHIP
• The Definition of Ownership.
• Ownership, in its most comprehensive signification,, denotes the relation between a
person and any right that is vested in him. That which a man owns is in all
cases a right. When, as is often the case, we speak of the ownership of a material
object, this is merely a convenient figure of speech. To own a piece of land means in
truth to own a particular kind of right in the land, namely, the fee simple of it.
• Ownership, in this generic sense, extends to all classes of rights, whether proprietary
or personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a
mortgage, or a share in a company, or money in the public funds, or a copyright, or a
lease, or a right of way, or the fee simple of land. Every right is owned ; and nothing
can be owned except a right. Every man is the owner of the rights which are his.
• Ownership, in its generic sense, as the relation in which a person stands to any right
vested in him, is opposed to two other possible relations between a person and a right.
It is opposed in the first place to Possession.
• The possession of a right (possessio juris, Rechtsbesitz) is the de facto (actual) relation
of continuing exercise and enjoyment, as opposed to the de jure (legal) relation of
ownership.
 PROPERTY RIGHTS
• OWNERSHIP

• Ownership and possession can exist independently: A person may possess a

right without owning it.
• For example, a wrongful occupant of land might use an easement (like a right of way)
even though they have no legal ownership of that right.
• Conversely, someone may own a right without possessing or actively using it.
Usually, however, ownership and possession coincide—the person who legally
owns a right also exercises it. This union reflects the de jure and de facto
relationship being in alignment.
• Ownership of a right means that the right itself is vested in a person :
Encumbrance occurs when another person holds a limiting or dominant interest in
that right, but not the right itself.
• Example: A is the owner of property. B is the lessee (tenant) of the property. D is the first
mortgagee (holds a mortgage against the property). E is the second mortgagee, and so
on.
• Despite the complexity of these layered interests, legal language lacks specific
titles for each type of encumbrancer (e.g., there’s no distinct term for someone
who has an easement or a restrictive covenant).
 PROPERTY RIGHTS
• OWNERSHIP
• While an encumbrancer does not own the original right, they do own the
encumbrance itself: A mortgagee owns the mortgage; A lessee owns the lease; A
sub-mortgagee owns the sub-mortgage.
• The status of encumbrancer vs. owner is relational: In relation to the underlying right,
the person is an encumbrancer (they have a secondary interest). In relation to the
encumbrance itself, they are the owner of that specific legal interest.
• The Nature and Language of Ownership
• Ownership, in its essence, refers to a legal right, not to a material object.
• In everyday language, we often speak of owning physical things—like land or chattels
—as if ownership pertains to the object itself. This is a figure of speech, not a literal
truth.
• Talking about physical objects is easier and more concrete than discussing intangible
rights.
• Eg: You may "own" cash in your hand (a physical thing). But you don't "own" the
money someone owes you; you own a right to claim it (a chose in action, not the
money itself).
 PROPERTY RIGHTS
• OWNERSHIP
• The Nature and Language of Ownership
• Ownership cannot logically be sometimes of a thing and sometimes of a right—it
must always be a relation to a right.
• The fullest form of ownership is a universum jus—the complete set of rights over an
object. Others may have special, limited rights (e.g., lessees or mortgagees), but
these do not equate to owning the thing. Even when encumbered, the legal owner
retains ownership because they hold the residual right—which could fully expand if
other rights were removed.
• Ownership is of various kinds, and the following distinctions are of sufficient
importance and interest to deserve special examination :
• Corporeal and Incorporeal Ownership.
• Sole Ownership and Co-ownership.
• Trust Ownership and Beneficial Ownership.
• Legal and Equitable Ownership.
• Vested and Contingent Ownership.
 PROPERTY RIGHTS
• OWNERSHIP
• Corporeal and Incorporeal Ownership
• Corporeal Ownership: Refers to a jus in re propria — a full right in a thing (e.g., land
or a chattel). When someone has this comprehensive right, we speak of them owning
the thing itself.
• Incorporeal Ownership: Refers to rights that are not absolute or are encumbrances on
another’s ownership (e.g., a lease, lien, or easement). These are rights over a thing,
but do not constitute ownership of the thing.
• Sole Ownership and Co-ownership
• Sole Ownership - A legal right held by a single individual at any given time.
• Co-ownership - When two or more individuals hold the same undivided legal right
together. The right remains a single, unified whole, jointly held.
• For example, two business partners with a joint bank account holding £1,000 are both
entitled to the entire amount. It is not split into two individual £500 debts owed by the bank.
• When the unified right is divided so that each party owns a distinct portion, co-
ownership ends. This process is known as partition, leading to several (individual)
ownership rather than joint or common ownership.
 PROPERTY RIGHTS
• OWNERSHIP

• Trust and Beneficial Ownership

•A trust represents a unique legal arrangement in which ownership of property is
divided between two parties simultaneously:
• Thetrustee, who holds legal (or trust) ownership, and the beneficiary, who holds
equitable (or beneficial) ownership.
• The trustee owns the property in name only and has no right to personal
enjoyment of it. Instead, they are legally obligated to manage or use the
property for the benefit of the beneficiary. Although the trustee is formally
recognized as the owner by the law—especially when dealing with third parties—
the true substance of ownership lies with the beneficiary.
• Inlegal theory, the trustee is the property’s owner so that they can act on behalf
of the beneficiary in dealings with the outside world. In substance, the trustee is
more like an agent than an owner, tasked with managing property not for
themselves but for someone else.
• Thelaw acknowledges this dual ownership: legally empowering the trustee while
preserving the beneficiary's true ownership rights.
 PROPERTY RIGHTS
• OWNERSHIP

• Legal and Equitable Ownership

• Thedistinction between legal and equitable ownership is closely related but not
identical to the distinction between trust and beneficial ownership.
• Legal ownership arises from common law rules. Equitable ownership derives
from equity, which developed as a separate body of principles to address
injustices the common law couldn't remedy.
• Thedistinction between legal and equitable ownership is not the same as that
between legal and equitable rights.
• Forinstance, equitable ownership of a legal right (e.g., a debt assigned
verbally) differs from ownership of an equitable right. One legal right (e.g., a
debt or share) may have two owners—a legal and an equitable—but it remains
one single asset.
• Courts now apply equitable doctrines alongside legal ones, but legal and
equitable ownership remain separate concepts.
 PROPERTY RIGHTS
• OWNERSHIP

• Vested and Contingent Ownership

• Vested Ownership
• The title is perfect and fully established.
• The owner holds the right absolutely.
• The legal event (called the investitive fact) that created the right is complete
in all respects.
• Contingent Ownership
• The title is imperfect, but has the potential to become perfect.
• Ownership is held conditionally, dependent on the occurrence of a future event
or the satisfaction of a condition.
• Theinvestitive fact is incomplete because a necessary element is missing,
though it may be fulfilled later.
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• ENCUMBRANCES

• General Characteristics of Encumbrances

• Encumbrances Extend Beyond Property Law
• They are not restricted solely to property (rights in rem), but also feature in the
law of obligations (rights in personam). Even intangible rights, such as choses in
action (e.g., debts, shares), can be mortgaged, held in trust, or otherwise
encumbered.
• Encumbrances Can Be Non-Proprietary in Nature
• Not all encumbrances on property rights are themselves proprietary rights. For
instance, a real right may be limited by a personal obligation or by a power,
which is a legal construct that doesn’t impose a duty on a specific person and
therefore is neither a real nor personal right.
• Encumbrances May Affect Non-Ownership Rights: It is not necessary for the
encumbered right to be a full ownership right (jus in re propria).An existing
encumbrance can itself be encumbered—for example, a mortgage can be
mortgaged again, or a lease can be sub-leased.
 PROPERTY RIGHTS
• ENCUMBRANCES

• Main Classes of Encumbrances

• There are six principal types of encumbrances:
• Leases– Agreements that grant the right to use property for a specified period
under set conditions.
• Servitudes– Rights allowing limited use of another’s property, such as
easements or rights of way.
• Trusts– Legal arrangements where property is managed by one party for the
benefit of another.
• Powers – Legal capacities to alter rights or obligations, which may not
themselves be rights.
• Contractual Obligations – Duties arising from agreements which can bind or
limit the use of property.
• Securities
– Interests granted to secure the fulfillment of an obligation, such as
mortgages or liens.
 PROPERTY RIGHTS
• MODES OF ACQUISITION OF PROPERTY
• There are four modes of acquisition: Possession, Prescription, Agreement, and
Inheritance.
• I. POSSESSION
• Possession refers to the physical control or occupation of a material object. It not only
represents a de facto (factual) relationship between a person and an object, but also
brings about a de jure (legal) claim to ownership. Simply put, to possess is, under many
circumstances, to own.
• The legal value of possession depends critically on whether the item in question already
belongs to someone else or is res nullius (a thing that belongs to no one).
• As to the latter concept, when a person takes possession of an object that previously
belonged to no one (e.g., wild animals, fish in the sea), they acquire full ownership.
• If the object is already owned by someone else, then the new possessor acquires a title
that is:
• valid against all third parties, except the original (true) owner.
• invalid against the original owner, whose rights remain superior. Even wrongful possession
(such as theft) is legally recognized as a title against all except those with a better or earlier
claim.
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• MODES OF ACQUISITION OF PROPERTY
• II. PRESCRIPTION
• Prescription refers to the legal impact that the lapse of time has on creating or
destroying rights.
• It functions as a vestitive fact, meaning that it can either establish or extinguish legal
rights depending on the circumstances.
• There are two types of prescription:
• Positive (or acquisitive) prescription – this creates a right through prolonged possession
or use.
• Example: Gaining a right of way after 20 years of continuous use.
• Negative (or extinctive) prescription – this destroys a right due to prolonged inaction or
non-possession.
• Example: Losing the right to sue for a debt after 6 years of no action.
• Function of Time and Possession
• The legal effect of time depends on whether possession exists:
• With possession: Time operates positively, building legal rights.
• Without possession: Time operates negatively, dissolving legal rights.
 PROPERTY RIGHTS
• MODES OF ACQUISITION OF PROPERTY
• II. PRESCRIPTION Contd.
• For instance:
• Possessing an easement for 20 years can lead to legal ownership of it.
• Failing to possess land for 12 years can lead to the loss of ownership rights, even if
originally held.
• Convergence of Fact and Right - “Ex facto oritur jus” – From fact, right arises
• There’s a general presumption in law that:
• Those who possess are also the rightful owners, and
• Those who do not possess are likely not the owners.
• Thus, possession is taken as evidence of ownership, and its strength increases
over time.
• Prescription reflects the law’s effort to balance justice with practicality.
• It
transforms the passage of time into a mechanism of legal certainty—one that
stabilizes ownership, encourages vigilance, and ensures that rights are not left
indefinitely unresolved.
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• MODES OF ACQUISITION OF PROPERTY
• III. AGREEMENT
• Inproperty law, agreements function as titles to proprietary rights in rem
(against the world).
• There are two primary types:
• Assignment: Transfer of existing rights from one party to another.
• Grant: Creation of new rights that encumber the existing rights of the grantor (e.g.,
granting a lease).
• Agreements may be formal or informal, but in property law, formality has
historically included delivery of possession (traditio). (Eg. Roman Law, English
Laws etc. stressed on delivery of property to conclude transfer of ownership)
• Theneed for traditio reflects older legal thinking where possession and
ownership were closely linked.
• Without possession, an owner’s rights were minimal.
• Ownership was largely meaningless without control of the item.
• Law hadn’t yet distinguished the transfer of rights from the transfer of things.
 PROPERTY RIGHTS
• MODES OF ACQUISITION OF PROPERTY
• III. AGREEMENT Contd.
• One cannot transfer more rights than they possess—nemo plus juris ad alium transferre
potest, quam ipse habet. However, there are important exceptions, arising from two
key legal developments:
• (i) Separation of legal and equitable ownership : A legal owner holding on behalf of an
equitable owner (e.g., as a trustee) may still convey good title if:
• The buyer gives value; The buyer has no knowledge of the trust.
• This is known as the equitable doctrine of "purchase for value without notice". Essentially, a
good-faith purchaser may receive a better title than the seller actually had.
• (ii) Separation of ownership from possession :
• Sometimes, possession is mistaken for ownership. Common law and statutes allow for
good-faith purchasers to obtain valid title from possessors who are not owners:
• Negotiable instruments: A stolen banknote can be validly transferred if the recipient gives
value and acts in good faith.
• Mercantile agents can pass ownership of goods they possess even if unauthorized.
• Hire-purchase systems: Though the hirer isn’t the owner until final payment, they can transfer
ownership to a bona fide buyer.
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• MODES OF ACQUISITION OF PROPERTY
• IV. INHERITANCE
• Inheritanceor succession refers to the transfer of rights and obligations from a
deceased person to another individual, typically a legal representative or heir. It is
a legal mechanism that ensures continuity of certain rights and obligations after a
person’s death.
• Types of Rights upon Death
• All
rights are classified into two categories based on whether they survive the
death of their owner:
• a.Inheritable Rights: These rights continue to exist after the owner's death. They
generally include proprietary rights (rights over property). The death of the owner
is a vestitive event—rights pass to another—but does not destroy the rights
themselves.
• b. Uninheritable Rights: These cease to exist upon the owner's death. Typically,
these are personal rights, which are closely tied to the individual. Example:
Personal service agreements, certain tort claims. Exception: Some personal rights,
like hereditary nobility and associated privileges, are inheritable.
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• MODES OF ACQUISITION OF PROPERTY
• IV. INHERITANCE Contd.
• The rights of the deceased vest in a legal representative, who may be:
• Appointedby the deceased (via a Will) ; or Appointed by law (in the case of
intestacy).
• Legal Fiction of Continuity : The representative personifies the deceased in law.
He holds and exercises rights and fulfills obligations on behalf of the deceased until
the estate is fully administered.
• Duties and Liabilities of the Representative :
• Not a Beneficial Owner : The representative holds the estate in trust for Creditors
(first claim) and Beneficiaries (as named in the will or by law).
• Limited Liability: Responsible only to the extent of the deceased’s estate. Not
personally liable unless he incurs obligations in his own name (e.g., contracts signed as
executor).
• Trustee’s Personal Liability : Obligations incurred during the administration fall on the
trustee personally.
• Example: If the executor registers shares in his own name, he is personally liable for any
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• MODES OF ACQUISITION OF PROPERTY
• IV. INHERITANCE Contd.
• Beneficiaries: Two Types
• Testamentary beneficiaries (ex testamento): Named in a valid will.
• Intestate successors (ab intestato): Determined by law when there is no will,
typically relatives based on proximity.
• Bona Vacantia : If no relatives exist, the estate becomes ownerless property
and passes to the Crown (State).
• Testamentary Succession (Wills) : Power of the “Dead Hand”
•A person may direct the distribution of their property after death through a will.
• Although a will is powerless during life, it becomes legally effective upon the
testator’s death.
• This influence of the dead on the living is known as mortua manus ("dead
hand").
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• MODES OF ACQUISITION OF PROPERTY
• IV. INHERITANCE Contd.
• Legal Restrictions on Wills:
• To prevent misuse, the law imposes three main restrictions:
• (1)Time Limitation: The testator must ensure that their estate vests fully in
beneficiaries within a legally defined period. Efforts to extend control beyond
this time invalidate the testamentary instructions.
• (2)Amount Limitation: Many legal systems restrict the portion of the estate that
can be freely disposed of by will. The remainder is reserved for dependents
(e.g., spouse and children).
• (3) Purpose Limitation: Wills must benefit the living. Provisions that serve no
living person—e.g., instructing money to be buried or wasted—are void.
END OF SESSION