Property Theory Notes to help in the education life PDF

Preview

Summary

Property TheoryIdea of property ownership and an opportunity to examine Explore philosophical foundation and underpinnings of the concept of property ownership in its broadest form possible.We also seek out to analyse the fundamental elements and the essential particulars which are associated with t...

Description

Property Theory Idea of property ownership and an opportunity to examine Explore philosophical foundation and underpinnings of the concept of property ownership in its broadest form possible. We also seek out to analyse the fundamental elements and the essential particulars which are associated with the idea of property ownership and property as a concept. We further examine various rights duties and obligations attached to property ownership. Identify the various conceptual basis of the notion of property and its ownership. We examine various mechanisms that are being designed to regulate issues touching on property rights. Ultimately we shall come up with the idea to formulate some appraisal of some sought or evaluation of the traditional arguments usually presented for or against the institution of property ownership. This classification of property law and property theory is to purely facilitate appreciation of the various issues designated in land law. The corpus of what goes into land law is broad and the rules need a practical as well as a theoretical approach. The idea was to look at the foundation of property law and the other component was meant to take one beyond property transaction. What it enables us to do and how it does that. Property transaction was baptised property theory. The approach adopted here is to give reference points for each topic that we cover.

Land Law: weerwENTAL LEGAL CONCEPTIONS: 1.

Rights Concept in the context of civil society. How it comes about.

The all concept of the right is very much connected to the emergence of the civil society. The antecedent or the position that was holding before the emergence of that civil society is much different. The preponderant condition that there was this order that everything became yours not because you owned it, developed it but because you could actually get it by force. In the absence of such order there was chaos and everybody was for himself and if one wanted to assert their claim for any property one had to go out there and sort it out with force. Sometimes individuals were pitted against one another in order to survive one had to withstand that condition. What developed could be described as rights. It was essentially your might that translated into what you ended up owning. One lived in constant fear of losing out to the mightier parties and the conditions of living were pitiful. Life according to Thomas Hobbes in his Discourse became impossible. Hobbes argues that it was very difficult for one to survive and life was cruel and brutish. Might=Right this was the state of life. Life was not conducive to people being productive because people lived under the threat of the absence of law and order.

1

The choice of salvation vis-à-vis extinction arises from these conditions. People’s collective might so that each of them would forego the exercise of their own might in exchange of authority but instead each of them guaranteed some property rights that their property would not be taken away and that they would enjoy the fruits of their labour and the Social Contract arrived and from henceforth there was a three way transaction. Each individual was to renounce the use of individual might on condition that everyone did the same and with collective members of the society and the individual would not be outside this society and then ultimately the collective power of might would be ceded to exercise the same to the better of all. Social contract achieved to bring peace to all men and guaranteed them a number of benefits which were by far much more attractive. It is because of those dividends that the state of chaos was overcome. Expectation of peace and property was achieved by members of that society sitting together and reasoning and opting together out of chaos via the social contract. The social contract is the basis of civil society and is predicated on a very simple understanding that the sovereign, the ultimate authority to whom all individuals cede their powers of might is a custodian of the society’s collective interests as it were. What is tolerated is only that which society accepts as right and there is an enforcing machinery to ensure that no one is promoted or looked upon with any favour. Society would define values and give them clothing of legitimacy and these would be deemed to be law giving rights.

POWERS OF THE SOVEREIGN: How much power do you give to the sovereign – the sovereign is understood to enjoy powers for this to work. The sovereign alone is in charge of promulgating the law so his word shall be law. The effect of ceding those powers to the sovereign was to enable him exercise the same for the benefit of the society and he can have the power to punish so that any promulgations emanating from the sovereign will be obeyed. The sovereign will issue orders to the subject and those orders are backed by coercive powers in the sense that you do not choose to obey or disobey the law. If you disobeyed you incur the wrath of punishment. Members of the society do not expect the sovereign to act unreasonably. Reasonableness of sovereign powers is a condition. The general theory is that it becomes open for the subjects to rebel in the face of unreasonable promulgations issuing from the sovereign if the sovereign acts in excess of his authority. This clarifies the issue or the concept of a right and how it emerges upto the point where we want to relate it to issues of property. There is always a duty imposed invariably a duty as a correlation to a right in the scenario that we have just seen whereas the subjects are guaranteed their rights under conditions of life in civil society they are also duty bound to reciprocate to the extent that they cannot act as they had previously done. They are under a duty to obey. To every right attaches a correlative duty and that

2

can manifest itself in a number of ways. In terms of general theory the idea of a right stands out as one of the most important notions in terms of explaining legal relations. Rights have duties which flow from them in the words of Lord Lloyds work titled ‘the idea of law’ “As soon as a legal system arrives at the stage of development when it can yield to juristic analysis it will be found that the concepts of rights and duties form a pivotal point in the structure of the legal machinery by which the system is enabled to perform its social function.” Those two raise the idea of rights and duties.

RIGHTS & DUTIES In the socialist systems the rights vests in corporate entities. We are talking of those legal rights that are capable of enforcement. The fundamental difference between these rights and other rights is that only those rights that have been accepted and agreed on as laws and written as a code that guides the society are the rights that we are talking about and not rights that emanate from our moral inclinations. The ultimate question still remains what is a right? It has been suggested that a right signifies an affirmative claim in favour of one as against another in respect of a given situation, object or thing in which the right holder has an interest. This signification of that affirmative claim in favour of one against another in relation to a given situation in which the right holder has an interest is called a right. It is important within any legal system from the standpoint of the definition because it is from the standpoint of such an understanding that we would then proceed to impose duties, obligations, create a number of requirements and impose them on others in the end the idea of a right boils down to whatever statement one can make about the quantum or range of activities which one will be permitted to do within the society or which a given society will permit its members as individuals or members to engage in or execute under any specified conditions or situations. Those permitted will have to be defined by rules of law which regulate the conduct of those members of the society. So that if we were to look at it from the standpoint that one has an affirmative claim over something it would necessarily imply that the person holds it as a right to act in a certain way in relation to a given situation. If it is given as of right there is a duty on the rest of the members of the society not to impeach the execution of the engaging of such a person in those permitted activities and there should be a sanction of sorts to punish or discourage those who are bent on infringing on those rights to the beneficiary.

3

THE INTERPLAY BETWEEN RIGHTS CONCEPT OF PROPERTY & THAT OF OWNERSHIP Rights, property and ownership are interrelated. Rights issues arise from claims to property and ownership. These three concepts are very much intertwined. A right relates to particular things i.e. property which are capable of being owned so that the notion of ownership is a necessary corollary of the term property as well as the rights attaching thereto. Of course rights must attach to or be enjoined by specific people who are entitled to claim them so that one of the characteristics is that it inheres in a specific person who is entitled to claim such a right. The existence of a right presupposes that there exist other persons on whom the right imposes relative duty or obligation. A further characteristic is that there is forbearance which is the subject matter of the right in question. There must also exist some object of that right whether it is some person or some thing to which that particular right refers. There must exist some entitlement involved which essentially explains or offers the very reasons for which the right in question is being invested in the honour of the person entitled to enjoy it. All these characteristics of a right complete the picture wherever we talk of property and in all matters pertaining to the assertion of the ownership of property. Ownership denotes a relationship between a person and a particular thing whereby the owner is considered to have a free hand to the exclusive enjoyment or use of such thing or object so that the idea of ownership tends to invites talks of exclusive enjoyment of that particular thing or object. Possession of a thing or object is reserved to the right owner and as a necessary complement to that the owner also has the right to recover possession or enjoyment of such thing or property in the event that he has been wrongfully deprived of that which he owns. The rightful owner enjoys the right to hold and recover possession of the property as against all others and this then is the essential ingredient of the idea of ownership. To the extent that ownership consists a complex of exclusionary rights which can be exercised against the entire world. The rights attendant thereto are necessarily designated as rights in rem.

INCIDENTS OF CHARACTERISTICS OF OWNERSHIP An owner has the right to possess the object or thing owned the fact that he has parted with such an object or thing either by voluntarily divesting himself of the same or by being wrongfully being deprived does not derogate from that fact he still remains the owner of such an object or thing with an immediate right to possession even in situations where the person gives out or loans out the object or thing to a friend the position remains that such a person retains the reversionary interest which is protected under the law and which ranks in his favour. That protection can be enforced e.g the form of taking out a suit or legal action for damages occasion to the interests so protected or by the procurement of an injunction to stop any interference with the interests protected.

4

Most important characteristic of ownership is the owner’s right to possess the thing or object that is the subject matter of ownership and not even temporarily parting with the object denies him that right. The owner has also the right to use and enjoyment of the object or thing owned and in exercise of such right is free to determine or decide how the object or thing will be used and by whom. The owner is also entitled the receipt of income or some other benefits arising from the use of such object or thing. The right to possession essentially amounts to some form of liberty, the freedom conferred on the owner to determine from time to time how the object or thing subject of ownership can apply. The ride to that is that whereas the owner has the liberty to use and abuse the thing, its application or who will use the object or thing as he pleases, is predicated on the premise that the enjoyment will be within the confinements of the law. No rules or regulations are infringed so one has the liberty to apply his object or property as he pleases. Other people are under a duty not to use or interfere with the rights conferred on the owner. The owner also has the right not only of use but also of abuse of the object or thing subject of ownership in the exercise of his rights. He has rights to consume alienate dispose the thing/object as he pleases freely without any impediments. A non-owner even in situations where he is in possession is incapable of legitimately exercising such powers on the grounds that the owner has no good title to the object/thing. This is exemplified in the latin maxim that ‘nemo dat non quod habet’ Rights of use and abuse are peculiar to the owner alone. The owner can in death alienate his property as he pleases through a will. It is a characteristic of ownership that it is indeterminate in duration as against non-owners vis-à-vis that of a non-owner. Whereas the interest of non-owners are in a temporary position, it is not indeterminate that the owner’s interests in the thing or object can in theory last for time on end. It is perpetual and not amenable to be determined by any set time frame. Ownership is residual meaning that rights are attendant and are capable of being granted further to other persons without necessarily derogating from the owner’s right as such for instance leases being given out by owners but with a residual claim to ultimate return to the owner. Owners rights are not compromised. Owners rights cannot be lost and are inexhaustible. It is possible to give multiple further grants to others in relationship to that thing. Ownership has also the characteristic that it may be absolute or restricted. Absolute gives room for exercise of the right for free and exclusive enjoyment including the right to alter or destroy the thing owned at will provided that the same is done within the confines of the law. As long as it is coupled with terms and conditions of exclusive rights of enjoyment of rights attached to the ownership. Ownership gives rights to enjoyment.

5

CLASSIFICATION OF RIGHTS INTERPLAY BETWEEN RIGHTS, PROPERTY & OWNERSHIP There are various types of legal rights the notable ones being perfect vis-à-vis imperfect rights, positive vis-à-vis negative rights. There is also the classification based on those rights whether they are rights in rem or rights in personam, there is also classification based on whether they are legal vis a vis equitable rights, based on whether they are personal rights as opposed to proprietary rights and other popular classification based on whether they are public rights vis a vis private rights, further classification based on whether they are rights in re aliena vis a vis rights in re propria. Whether they are principal rights vis a vis accessory rights, whether they are vested rights vis a vis contingent rights.

PERFECT & IMPERFECT RIGHTS The perfect rights are those recognised by law and are enforceable through the various legal processes that are available for vindicating such rights in the event that the same have been breached by somebody else. On the other hand we talk of imperfect rights in situations whereby even though we may be dealing with rights which are recognized by law, the same become unenforceable directly through the legal machinery owing to some factors such as operation of limitation laws which would lead us to situations whereby we have claims of rights which even though recognised by law become time barred due to statues of limitation. For example in a situation where A owes B money arising out of a contract maybe a contract for B to give A a loan, the scenario that unfolds is the one that gives the right to have money repaid to B by A based on the contractual arrangement but under the requirements of limitation laws, such a right subsists only upto a maximum of six years this being the limitation period of contractual agreements in which time the right to recover that money is said to be current or alive. Beyond that 6 year period the right is extinguished by the right of limitation rules. Provided that A will not have acknowledged the indebtedness in anyway thereafter. Except where after the 6 year period the debt is acknowledged then the debt can be resurrected. Such rights will still be a right that is attributed to a. save that there is no way of enforcing it, it will still exist though not directly capable of enforcement; for example this can be seen in respect to rights which are based on claims beyond the local jurisdiction limits of the local courts, one would theoretically hang on to such rights except that having acquired those rights in a foreign jurisdiction are unable to claim them and will have go back where the right accrued. Under certain circumstances, such rights can be enforced in jurisdictions other than those in which they were acquired and that is a much more technical path.

6

Another example be seen in terms of a situation whereby you have an absence legal required element in the entire arrangement that actually leads to the acquisition of the rights in question. There are certain contracts for example that by law must be made under a Seal and if this is not complied with, whatever rights that may be acquired remain imperfect and unenforceable. All that the other party requires to raise is an objection that the rights are not capable of enforcement.

Positive Vis-a-Vis Negative Rights: Discussions of this category arise from time to time. Positive rights require that the person on whom the duty lies shall undertake some positive task or carry out some positive task or carry out a positive act for the benefit of the person who is in title to the right in question. Positive rights necessarily therefore correspond to positive duties and they can be conceptualised of as being those rights in consequence of which a person bound by the right is compelled to perform certain duties or some positive act in favour of the person in whom the right inheres and they envisage situations for instance such as those involving one’s right in a contractual relationship to insist on the other party fulfilling their part of the contract e.g. in a contractual situation a right to insist on specific performance. Of course this can be contrasted with other situations for instance one involving a person’s civil rights under the general law that such a person be not subjected to any harm or injury by the rights of others because what is actually entailed is the requirement for restraint on the part of the others, restrain from injury or harming a person by reason of their activities which by its character is a negative right. A negative right corresponds to a negative duty, that is to say one in consequence of which a person is bound to refrain from doing some rights. A negative right requires that a person bound by such right is stopped from carrying out such a right which might amount to harming the person entitled to that right.

RIGHTS IN REM VIS A VIS RIGHTS IN PERSONAM The difference in the two lies in the difference between the number of people that are subject to the duty of respecting or complying with the rights in question. In respect to rights in personam these are rights that are available against specific persons as opposed to rights in rem which are available as against the world at large (all members of the human race) these are rights that can be asserted against everybody else. Rights in rem are therefore those rights which are available against the whole world, a right that is good ag...