(1) Intro,Real Rights, Possession PDF

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Lecture notes with some extra reading, Dr Andrew Simpson, Dr Douglas bain...

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Property Law and The Real Rights

Introduction (1) Property within Private Law Per Roman Law: The Law of i. Persons - Who has the right ii. Things - What are the rights iii. Actions - How are rights enforced “Things” Further split into: 1. Obligations - The creation extinction and transfer of Personal rights - Delict and Unjust; Contract etc. 2. Property - The creation extinction and transfer of real rights, rights in a thing (2) Real and Personal Distinguished Law of Property 1. They are real rights - A right directly in a thing ( 2. In rem - Enforceable against the whole world e.g. Ownership, servitude etc. Law of Obligations Contract delict etc. - Personal rights, a right held from one person to another - Enforceable only against a specific party (e.g. sale or hire) NB. A personal right (in contract for example) is open to transfer to a third party, and in this wider sense a personal right becomes one of property; provided they are patrimonial rights Historical Development 1. Ancient Roman law. The distinction was not one of rights, but in actions in rem and in personam - Gaius 161 AD - The distinction was not the right itself, but how you would enforce your right, e.g. a debt could only be enforced by claiming against the person who owed 2. Developed distinction Civilian Lawyers solidified the roman reasoning i. They maintained claims in personam (actions) were based on a right (iura) in personam

ii. Claims enforced through actions in rem were based on rights (iura) in rem. In other words, those claims arose from rights such as ownership, or servitude, or security that were held directly in a specific thing. 3. A “Right” Lord Stair, Institutions - A power by law “exacting from person what is due; or disposing of things” i. Personal Liberty ii. Dominion - Disposal (use etc) of any creature (any created thing) iii. Obligation - Correspondent to a personal right (nothing but a legal tie…) Dominion Stair furthered it by saying real right could be used instead - A real right is therefore the power of disposal in any created thing Property Law: Disposal of Real rights (dominion) - The creation, transfer and extinction of the real

(3) Principle Theories The Classical Theory - As per above, focuses on the object/individual right is enforced – a specific thing or a person deciding the type of right When applied to property law 1) The right concerns disposal of real right 2) It concerns the “ownership” (whether in a physical thing or a right) 3) That the right is held against and in a specific thing Issues with classical theory 1. It suggests right is not enforceable against persons However, in practice - Consider a theft of my phone; enforceable (by vindicatio) against all people 2. Personal rights are, albeit not directly, in fact concerned with things - E.g. enforcing a debt (payment), an obligation, but is classified as incorporeal thing

The Personalist Theory Emphasises that personal rights are enforceable against those specific persons bound by the law - Real rights are enforceable by all persons against all persons (as opposed to against the world as a right in the thing) Prof Reid observations 1. that a “mere difference in number” does not sufficed legal distinction – Prof Reid 2. In theory, on a continuum the real and personal rights would be on each end, but in between what is remains unclear - However, in practice a right is either enforceable against everyone (or almost) or just one specific person(s) Distinction lies in the living law

In summary: Real and personal - Concerns Patrimonial rights – enforceable against either all or a set group - There is no defined in between - Distinction lies in legal reality Real and Personal rights: Bankrupty Problem - The distinction of personal and real rights carry some importance For example, a real right is sometimes stronger, consider a right in a house as security, if the person that owes becomes insolvent the bank may claim the house; but if a bank owns a right to a debt in cash, If the person is insolvent the debt is useless

The List of Real Rights Real Rights are of such importance in Law there is a set list 1. Reasoning for list of Real Rights Numerus Clauses - limited in Number, ensuring certainty, prohibiting the creation and extinction of a real right Publicity Principle - As they can be enforced against anyone, then everyone should be made aware of them  consider predictability of being burdened by a real right (e.g. not interfering with someone’s property) - The set of Real rights cannot be changed willy-nilly, as it would create a change in peoples’ rights - Adherence to publicity principle, and for rigidity in the Real Rights, registers are often used to recognise them – e.g. Land Registry confirms the transfer/ownership of land

2. The List 1) Ownership “Using and disposing of subject as our own… except in so far we are not restrained by law or paction” - Erskine, Institute, Vol 2 1.1 2) Security - “The right of a creditor held in property, as security for a debt owed to him” Reid, Property, Para 5 3) Servitude - Right for owner of a “benefitted land” to use “burdened tenement” – e.g. right of access NB. “runs with land” – servitude is not extinguished by death of creator(s); remains attached until corresponding owners of lands agree on termination (or the term runs to an end) 4) The negative real Burden - The “benefitted proprietor” can prevent ANYONE, or ask “burdened proprietor” to refrain from using the neighbouring “burdened land” a certain way

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E.g. consider a prohibition of using the neighbouring land for a specific, perhaps loud activity

NB. As this is enforced can be enforced to ask a person to refrain from an activity (Stop it), it is personal – however, Title Conditions (Scotland) Act 2003 s9(2) – makes it a real right 5) Proper Liferent (Usufruct) - The right to use (usus) of property under liferent, allowing the use and disposal of the fruits thereof (fructus) - Nb. Does not allow disposal of the land under liferent 6) The Lease - Right in a lease for tenant is real, and for the landlord, vis-à-vis successors of the landlord - Used to be a simple personal right (contract, terminated on death of one party) – causing issue of successors would not have to obey lease (essentially allowing kicking out of leasee) - Changed position according to Leases Act 1449; statute allows certain contract to give rise to an effect of a real right 7) Additional Rights 1. Public Right of Way - Similar to servitude, the rights of access to public places etc. seem real in nature as they can be enforced “against the world” – however they are specifically created by public law and thus does not necessarily fit 2. Exclusive privilege - Historically, the Privilege of certain royal boroughs to undertake certain activities, of trade for example - Today this is also intellectual property 3. Possession - Possession can on one hand be said to be nothing more than a matter of fact, whilst ownership is a matter of law; legally, possession does not even confer the right to possess, which is a real right derived from Ownership

3. Ownership as the Main right - The “sovereign” real right - any other real right flows from ownership Subordinate Real Rights - They are subordinate as could not exist without the underlying ownership Stair: Diminished Property - When the Right of Property (ownership) is diminished, that part is “servitude or pledge” Servitude: - Personal  liferent, lease - Real  Rights of Access Pledge: - Security In summary:

1) Ownership is main - Entitles: Use, enjoyment, fruits, and disposal of the owned property 2) The subordinate rights - Liferent and leases, and servitude being right of access; and Negative real burden (prohibiting certain use of land) - Security

Things 1. Types 1) Corporeal and Incorporeal Corpoeal - anything with corpus – e.g. which has body, and is tangible - a book Incorporeal - No Physical presence – Reid Property, Para 11 - a right in contract or delict is incorporeal - A share in company, pensions etc. are other examples 2) Heritable and Moveable Heritable: - “immoveable” Anything land, and anything aceeded to land Moveable - per definition, anything that is not heritable However, may be refined - Professor Bell stated that “Whatever moves, or is capable of being moved from place to place without injury or change of nature in itself, or in the subject with which it is connected, is moveable” (see , Bell, Principles at § 1472, cited in Reid, Property, para.12). In practice, it generally is land and not land - The transfer of ownership is what differs Land requires registration - supports certainty, and publicity Moveables - Commercially counterintuitive if one had titles, like for a book - It is transfers often by transfer of possession A thing may be corporeal and heritable; or corporeal and moveable; or incorporeal and heritable; or incorporeal and moveable.  Land, and tangible things incorporated into land, are both corporeal and heritable.  A book is corporeal and moveable, and so is a car, to name two examples.  Amongst incorporeal heritable things are real rights in land, and also personal rights to acquire real rights in land (e.g. missives of sale of land). See Reid, Property Law, paragraph 14.  Amongst incorporeal moveable things are personal rights (insofar as they are not personal rights to acquire real rights in land) and shares in limited companies.

2. Rights in Rights Per Prof Reid, para 16: - As incorporeal things are another name for rights

- And one can have a right to an incorporeal thing, so in a thing  One may have a right in a right

Example

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a tenant may have a valued lease in security a bank may take right in lease e.g. Tenant grants a subordinate real right (the security) in a real right of his (the lease) another suborindate right  Bank has a right in an incorporeal thing, which is a right “Having a real right in…” Prof Reid: Simple means: - Having ownership of a right, for example, a leause Further, this means 1) having a real right of ownership (which is incorporeal) in a contractual right (the lease) which is incorporeal, in the land which is corporeal 2) NB. does not “collapse” a distinction between the personal and real - If one has a real right of ownership, which is incorp., in a personal contractual right, incorp. - One remains enforceable in personam, against just a person, and the ownership itself against the whole world, but only as far as to hold that contractual right Implication of “having” a right and “owning” a right Reid argues: - to “have” an incorporeal right is to “own” that incorporeal right in - helps one to explain why someone is entitled to burden a lease with a standard security. - No one is able to burden that which he does not own. Therefore it seems to follow that, in some sense, the leaseholder who burdens his lease must “own” it. The full argument is outlined in Reid, Property, para. 16. Reid does admit there is one exception that must stand against this theoretical position. This is that it would be nonsensical and meaningless to speak of the ownership of ownership. - While all other rights are incorporeal things to be owned, ownership is not such a right Critique of owning a right Gretton. See ‘Owning Rights and Things’, (1997) 8 Stellenbosch Law Review 176-180. - nonsensical to speak of the ownership of the right of ownership. He states “One can own land or lease land. If one owns a lease then one should also own ownership.” - avoid these linguistic difficulties, and simply to speak about “having” incorporeal things like real and personal rights within one’s broader patrimony. Yet an admitted criticism: - If one can only HAVE incorporeal things, then strictly speaking no-one “owns” a share in a company, which is an incorporeal thing. One can merely “have” a share in a company Gretton’s at 180, sums up a pragmatic, and natural, and realistic positiong “… each approach does some violence to ordinary speech - One approach would forbid us to speak of the ownership of company shares - the other approach would require us to speak of a leaseholder as an owner. In other words, the muddle is ingrained in our language. So long as the nature of the muddle is understood, it perhaps matters little how we speak…

Possession

1. Concept of Possession i. Generally Ownership and Possession as nothing in Common (Jurist Ulpian, in the Roman Digest) As recognised by Barry Nicholas: It is obvious to distinguish, in ordinary language between holding and being entitled to something - “possessing” a thing was more about “having” it, - “owning” a thing was more about entitlement to it. e.g. Possession could be seen as a matter of fact, whilst ownership could be seen a matter of right. Not Purely a Matter of Fact  Reid para 113 In law possession means more than a physical fact  to be possessor one must hold on his own account, so that for example, a depositee does not become possessor  Stair, Instiutions, ii.1.18 Must be a detention of the body, and detention of the mind, for use - E.g. physical holding and a intention to hold such, for use or other purpose

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Physical and Mental Elements

a) Physical  Reid para 119: Requires Exclusive Control - but varies per situation  Stair, Insitutions ii.1.11-13 1) the Simple: Moveable - simple holding and detaining for our own use; debarring others - For a small item, simply holding suffices, or may be locked away etc 2) A heritable: immoveable field - to possesses a field need not physically possess the whole field strictly speaking - part of it is enough

Possession of Incorporeal Things

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Reid, at 120, it “has no physical presence and so cannot be detained; and since detention is requirement of possession it follows that incorporeal property cannot be possessed Erskine, Institutes at ii.9.3 - If one holds right in servitude, one holds an incorporeal things, but does not properly possess anything - Only the owner of the land which is the servient tenement possess the land, not the claimer of servitude

Exception: Incorporeal that can be possessed - theres legal fiction – for limted purposes, such as positive prescription and for registration of title – allowing for certain heritable incorporeal property to be possessed Servitudes: - in s.3(2) of the Prescription and Limitation (Scotland) Act 1973, expressly stateds servitudes can be “possessed” and then acquired by long use. Quasi-Possession Gretton speaks of this as “an exercise of right”, as the physical detention requirement makes it impossible to possess incorporeal… - Possession is only possible of incorporeal if one regards exercise as a substitute for detention Natural possession vs Civil Possession An example: If One buys a flat, and let it to a tenant straight away one remains in possession - Civil Posession The tenant who lives in flat – Natural possession Gretton 12.9 - As well as the foregoing example of a landlord possessing through her tenants, pledgers possess through pledgees, fiars possess through liferenters and owners possess through custodiers such as warehousers and carriers.” Animo Solo: retaining possession - Once possession has begun, one can retain it with mind alone For example, Students sitting in lectures are still in possession of their flat - Only time possession is lost, is if an intention to lose it is formed, for example by intending to abandon

b) Mental - must be detention of body…and detention of the mind for use – Reid, Property, at para 123 Continues, split into; 1) Exclusive Control - intention to exercise exclusive physical control over the thing detained 2) Benefit for Oneself - intention to exercise control for the benefit of oneself - Control exercised solely for the benefit of another is custody and not possession

Exclusive Control - Illustrating this requirement is the situation where: Does a person possess a thing, which by whatever reason, enters an enclosed space the person controls? If one is unaware there may not be intention to possess? Parker v British Airways 1982 1 QB 1004 - Parker found old fancy bracelet in airport lounge; having picked it up, he argued possession at that time of picking it up; - BA argued control of lounge/airport gave them possession of items left within; Held, in principle holding a building may allow possession of items within But, the Occupier’s intention to exercise control over anything within, must be manifest - Parker was in possession nb. Not Scottish authority, but would assist in approaching the question

Benefit for Oneself Animus Sibi Habendi - Must have the intention to possess for one’s own use – possession with animus sibi habendi Confirmed by Stair, and insistence that tenants do “possess” the tenanted property, and it is also the approach that is favoured in Reid, Property, para.125. - nb. This is contrasted with animus domini – intention to be owner - Found in Roman Law, this is not used, as it would exclude a lease holder, or tenant to be in possession Examples, this allows for a “custoder” to not be in possession, such as a warehouse keeper, or depositee of a cloakroom

2. Relevance of Possession: What flows from it - If requirements for possession is satisfied, certain things arise i.

The jura possessionis: the right to continue in possession until one consents freely to the loss of possession or until a court order is given awarding - Even true owner may not According to Bankton, - 'a right ... whereby one is entitled to hold what he is possessed of, till a better right in another appears' Essentially, one can possess something, without title, as long as its not challenged - Challenge In Scots law is Spuilzie to gain back possession (by true owner) – by proving having been in possession, and having been unlawfully dispossed

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nb. Possession does not confer the rights of encroachment and trespassing (As these can only be enforced by rightful owner, who can prove such) ii.

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Possession as a pre-requisite for another right the holder may be able to rely on his or her possession to acquire certain rights for which possession is a necessary, but not a sufficient, pre-requisite. E.g. Occupatio – this requires possession

iii. Presumptions: The possessor is presumed to be 1) In lawful possession - Gretton 12.19 2) To be owner Stair IV, 45, 17 NB. If one want to be benefit of such a presumption - possession must obviously involve an assertion of the will to be owner, rather than simply the will to hold the thing for one’s own use Sir John Scot and Walter Scot v Sir John Fletcher 1665 Mor 11616...