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Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property. Property can be exchanged through Contract, and if property is violated, one could sue under Tort to protect it.
The concept, idea or philosophy of property underlies all property law. In some , historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty.
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.Badenhorst, PJ, Juanita M. Pienaar, and Hanri Mostert. Silberberg and Schoeman's The Law of Property. 5th Edition. Durban: LexisNexis/Butterworths, 2006, p. 9.
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.
Arguments in favor of limiting private property rights have also been raised: (1978). 9780802023056, University of Toronto Press. ISBN 9780802023056
U.S. Supreme Court Justice James Wilson undertook a survey of the philosophical grounds of American property law in 1790 and 1791. 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 believes that "man has a natural right to his property, to his character, to liberty, and to safety." He also indicates that "the primary and principal object in the institution of government... was... to acquire a new security for the possession or the recovery of those rights".
Wilson states that: "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: "Useful and skillful 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.
William Blackstone, in his Commentaries on the Laws of England, wrote that the essential core of property is the right to exclude. That is, the owner of property must be able to exclude others from the thing in question, even though the right to exclude is subject to limitations. By implication, the owner can use the thing, unless another restriction, such as zoning law, prevents it. Other traditionalists argue that three main rights define property: the right to exclusion, use and transfer.
An alternative view of property, favored by Legal realism, is that property simply denotes a bundle of rights defined by law and social policy. Which rights are included in the bundle known as property rights, and which bundles are preferred to which others, is simply a matter of policy. Therefore, a government can prevent the building of a factory on a piece of land, through zoning law or criminal law, without damaging the concept of property. The "bundle of rights" view was prominent in academia in the 20th century and remains influential today in American law.
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 license. In general, even if licenses are created by a binding contract, they do not give rise to property interests.
The dividing line between personal rights and property rights is not always easy to draw. For instance, is one's reputation 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, organs and other body parts.
In the United States, a "quasi-property" 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 biotechnology processes and products based on human genetic material may be characterised as creating property in human life.
A particularly difficult question is whether people have rights to intellectual property developed by others from their . In the pioneering case on this issue, the Supreme Court of California held in Moore v. Regents of the University of California (1990) that individuals do not have such a property right.
Before the mid-19th century, the principles governing the transfer 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 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.Felix Cohen, "Dialogue on Private Property" (1954) Rutgers LR 357. 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:
Although a tenancy involves rights to real property, a leasehold estate is typically considered personal property, being derived from contract law. In the civil law system, the distinction is between movable and immovable property, with movable property roughly corresponding to personal property, while immovable property corresponding to real estate or real property, and the associated rights, and obligations thereon.
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.
There are cases when a person is legally capable of owning property, but is not capable of maintaining and dealing with it (such as paying property taxes). This is the case for young children and mentally handicapped individuals. The state deems them incompetent in their capacity to deal with property. Thus, they must be appointed a legal guardian to deal with the property on the incompetent individual's behalf. In cases where the individual cannot find a legal guardian to deal with the property, the property is put up for sale and the incompetent individual is involuntarily deprived of such property.
are another process by which individuals can be forcibly deprived of their private property. A tax sale is the forced sale of property by the state due to unpaid taxes on that property. The property is typically auctioned off as a tax sale by the local government to payoff the delinquent taxes on that property. One could make the argument that, given the presence of property taxes, an individual never truly owns a piece of property; they rent it from the government.
Property can also pass from one person to the state independently of the consent of the property owner through the state's power of eminent domain. Eminent domain refers to the ability of the state to buyout private property from individuals at their will in order to use the property for public use. Eminent domain requires the state to "justly compensate" the property owner for the acquisition of their land. The practice dates back to at least the 17th century. Common examples include buying land from individuals in order for the state to build public roads, transportation systems, governmental buildings, and to construct certain public goods. The state also uses its eminent domain power for large urban renewal projects by which it will buy out large portions of typically poor housing areas in order to rebuild it.
Eminent domain also consists of enabling the state to condemn certain real estate construction and development rights for various reasons. One must meet location specific regulatory standards and building codes in order to construct on property. The general rule for stairs (in the US) is 7-11 (a 7-inch rise and 11 inch run). More exactly, no more than 7 3/4 inches for the riser (vertical) and a minimum of 10 inches for the tread (horizontal or step). Failure to meet these regulatory standards can result in an inability to receive state building permits, state destruction of property, legal fines, and increased liability.
KELO V. NEW LONDON (04-108) 545 U.S. 469 (2005) was a pivotal case that increased the scope of the eminent domain power of the state. The U.S. supreme court ruled that private property could be condemned by the state and transferred to a private company.
In the case of bankruptcy of a lender, the legal successor in interest has the right to collect the debt. "What Happens if Your Lender Goes Under?" , by Louis DeNicola, Money Management International, 4/9/2021
The modern law of landlord and leasehold estate 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 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.
In many countries, non-citizens cannot own property or are limited greatly in their capacity to own property. The United States allows foreign entities to buy and own property. But the United States does have stipulations surrounding tribal land owned by the indigenous Native Americans.
Incompetent individuals also cannot own property, at least without a legal guardian. Incompetent individuals consist largely of children and the cognitively impaired. They are legally recognized and allowed to own property, but they cannot deal with it without the consent of their legal guardians. Children do not have the capacity to pay property taxes.
Communist ideals oppose private property laws. Communism / Marxism advocates for full state / public ownership of property. "Private property has made us so stupid and one-sided that an object is only ours when we have it – when it exists for us as capital, or when it is directly possessed, eaten, drunk, worn, inhabited, etc., – in short, when it is used by us" (Marx). However, it is important to note that many Marxist–Leninist societies such as China and the dissolved Soviet Union have forms of private property laws.
In the United States, "the federal government owns roughly 640 million acres, about 28% of the 2.27 billion acres of land in the United States. Four major federal land management agencies administer 606.5 million acres of this land (as of September 30, 2018). They are the Bureau of Land Management (BLM), Fish and Wildlife Service (FWS), and National Park Service (NPS) in the Department of the Interior (DOI) and the Forest Service (FS) in the Department of Agriculture. A fifth agency, the Department of Defense (excluding the U.S. Army Corps of Engineers), administers 8.8 million acres in the United States (as of September 30, 2017), consisting of military bases, training ranges, and more. Together, the five agencies manage about 615.3 million acres, or 27% of the U.S. land base. Many other agencies administer the remaining federal acreage."
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