WHAT IS PROPERTY LAW?
Property law has been written about a lot. Not just by lawyers but by anthropologists, geographers,
sociologists and so on.
Any general notion of property is notoriously elusive” - J.W. Harris
In terms of property law is about. Normally is about things but it can be quite difficult to work out
what an object of property law is and how a can thing generates rights. In terms of whether we need
private property law they have been arguments about whether we need private property law or not
but there can be some justifications for having it such as security, an area of autonomy against the
state for example if you possess a land the state cannot take authority over it(USA).
In the Scottish context property law can raise questions of fairness quite a lot. For example: Why do
you have that? How can someone just come in and buy a property?
PROPERTY AND “THINGS”
When we speak about property, we might think about the object itself and the right to own
the object so there is a bit confusion about it.
PROPERTY – THE WORD
Synonyms of “property” – things, patrimony, items, objects, goods, heritage, land, chattels,
moveables etc. – may be deployed depending on context.
Sale of Goods Act 1979. For example, the Sale of Goods Act talks about goods but the ECHR
talks about possessions.
ECHR speaks of “possessions”.
THINGS AND RIGHTS
Two crucial concepts to grasp.
Both need defined, but the definitions are interrelated.
REAL AND PERSONAL RIGHTS
Rights are divided into real and personal rights.
-Real right, for example, this is my book and own a right towards so for example if someone
wants to collect it from, they need my permission and if they don’t get my permission I will
need to get it from them.
-Personal rights are those enforceable against persons, for example, a right to obtain
payment and they will only be enforceable against an identifiable class of people or
individual.
In Scotland there is nothing between personal and real rights, there is a sought of
unbridgeable difference between the two, so for example ownership rights which are
effective against the world or personal rights who are effective against a defined class of
people.
,PUBLICITY
One thing that is important when dealing with real rights is publicity. Real rights are for the
information of 3rd parties. In terms of how the publicity might be affected, so for example, I
am currently wearing a shirt, this already is a publicity. Moreover, publicity might be
brought up by a process called land registration or by the very simply act of possession. In
Scotland you will never a become owner of land without registration and this how publicity
comes about.
CERTAINTY
Furthermore, real rights matters a lot because it brings certainty and this from a Scottish
perspective seems to be a good thing because we want to know who is what and
occasionally you will end up in a situation where someone has sold the same item twice
then disappearing and leaving the two parties arguing over who has ownership over it. That
is why Scotland is all about certainty because who has the real rights in relation to the thing
is in a better position.
REAL RIGHTS RECOGNISED BY SCOTS LAW
Property law is not codified in one piece of legislation, it can be found anywhere, so real
rights as well can be found in case law, legislation, books and so on. Since the court have not
set out a list of the statutory real rights.
Scots law have developed over the course time the principal real rights.
OWNERSHIP
1) Dominium, so if you have dominium it means that you have control over the assets,
therefore you have ownership.
Erskine describe ownership as having the authority to do whatever you want with the
assets.
2) This is what Stair calls the “main right”. An owner can use, enjoy and abuse
(consume) his or her property, subject to law or paction.
3) If the asset remains (e.g. perishable materials may degrade), owner is in a strong
position indeed.
4) There might be some restrictions on someone that owns property, for example, if
you are owing something that might cause harm to your neighbour.
SUBORDINATE REAL RIGHTS
Which applies in a situation where someone owns property and you have a right
towards it , for example, if someone is owing you money you might be able to obtain a
standard security against them. “Jura in re aliena”.
,Type of subordinate real rights
1) Rights of security. for example, if A goes to the pawnbroker to borrow money the
pawnbroker will give the money once A has given her moveable items and that’s a
recognised a subordinate real right in Scotland.
2) Lease of land is only for lands not for moveable items. To make the lease of the land
it will be better to register
3) Proper liferent is an entitlement to stay in property for the rest of your mortal
existence, you get to use and enjoy the fruit of the property. This type of
subordinate real rights is very common in families whereby a parent transfers the
ownership of the house to their children but still want to leave the so they will make
it the property subject to proper liferent.
4) Servitudes. Is a right to use someone ’else property. The classic example will be to
drive your own car over someone’s else property to get to your own property.
5) Real burdens of a negative nature. These are conditions entitled to land and if affects
the person that comes in and buy the land, so they must be subject to the conditions
of that land. A real burden might say that the property must be used for a family
home.
ANY OTHER REAL RIGHTS?
Stair in his writings about included public/community rights (such as a right of way)
and possession.
SCOTS LAW IS UNTITULAR
In regards of the right of ownership there can only be right of ownership at any
given time in relation to an object, but there might be situation of co-ownership so
for example, siblings might own property together but there is still one title and
when that person own that property and necessarily exclude any other person from
owning the item.
WHAT KIND OF THINGS CAN YOU OWN?
There is two dividing lines.
1) Corporeal or incorporeal
2) Moveable or inheritable(immoveable)
When you combine these two dividing lines together there are other 4 subcategories
CORPOREAL HERTIBLE v INCORPOREAL HERITABLE
CORPOREAL MOVEABLE v INCORPORABLE MOVEEABLE
Corporeal (corpus)/incorporeal
1) Corporeal thing can be literally be grasped.
, 2) Incorporeal thing has no body. For this reason, incorporeal bodies can be difficult
to conceptualise.
3) Personal and real rights have no physical presence; therefore, they fall in the
incorporeal bracket. A owes B 1000 pounds and B has the right to sue A for the
money.
4) Similarly, you might have a subordinate real right.
5) However, it is important to note that is not logically or theoretically possible to
own ownership.
Heritable (immoveable)/moveable
Immoveable property, referred to as heritable for historical reasons tied to the law of
succession (inheritance), is property that does not move.
Moveable property is everything else.
Corporeal heritable (immoveable)
1) Land and things that form part of land either naturally or by accession (essentially
building).
2) Natural parts of land would include minerals (coal, metals), soil, stones.
3) Acceded property would include houses or tenements.
4) Items that can be moved but are closely linked to land may nevertheless be
treated as heritable: e.g. keys to a house and
Corporeal Moveable
1) Anything corporeal that is not heritable.
2) Book
3) Car
4) Cat
5) Exam paper.
Incorporeal heritable
1) All rights connected to corporeal heritable property.
2) Any other permanent rights that are somehow distinct from corporeal heritable
property such as: titles of honour, and rights with a tract of future time, such as
annuities and pensions.
Incorporeal moveable
1) Anything incorporeal that is not heritable such as text of books, a debt, student
loans are all classified as incorporeal moveable.
