The Concept of Property in English Law

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The Roman law first divided the property into real and personal property and it has been stuck in the English property law ever since. Property may be either real or personal. In England, real property has superior value than personal property. The real property is owned in England in complete ownership. This means that it is assumed that the real property is owned in perpetuity and passed on to the legal heir in case of intestate case. However, personal property moves with the owners and on the event of death of the owner, are divided according to the laws relating to such distributions unless a will is left by the deceased. A real property must also move from one person to another with the help of a deed but personal property does not need the same. In case of transfer of real property, a contract of sale needs to be prepared. Also, the real property must be registered to determine the current owner. So even in case of purchase the buyer must first look into the registration papers to find out whether the seller has the authority to sell and also must get the property registered in his name. So, transfer of real property can be a bit cumbersome. Meaning of property- In general terms, property means anything that can be legally owned by a person is known as property. This property can be of two types- real and personal property. Real Property It consists of land and the related things. The buildings that are attached to land and the things associated with the building are all included in real property. Trees and plants growing naturally are also included in real property (Alchian, 2008). The trees and crops that are cultivated by the efforts of men are not included in the real property. Real property is also called real estate’s or realty. It consists of immovable property. Personal Property It is further divided into chattels and intangibles. Chattels- All the tangible things that a person possesses from cars to mobile phones are all considered as chattels. Any movable tangible property that a person owns can be classified as chattels. Intangibles- All the things that cannot be seen or touched and yet are owned by individuals are called intangibles. This may include legal rights to certain things. Insurance policies, licenses, intellectual property, stocks, bonds etc. all are included in intangibles. Personal property includes all the movable property. It is the private property of an individual. Land has always been seen as a symbol of wealth and power since longest of times. Men of any culture who had land ownership were considered rich and powerful. British considered it as a privilege to have some form of land ownership as few of them could even live off their whole lives living on the income they got from renting their land. In the 16th century England, land owners were considered nobility. The social status of the land owners was ever increasing. The poor farmers worked on the lands of the rich who were defined by the amount of land they owned. Due to several kinds of taxation introduced in 20th century, the position of land as the primary source of wealth declined. Yet, it held a great importance as compared to other kinds of property. Also, the natives held far greater importance to their land. They were spiritually attached to their lands apart from being physically and culturally attached. They feel a connection to their lands. Their whole life is sustained by that land and they seem to attach spiritual connection to it. In the third world countries, land is the only source of income. They people are poor enough to explore other opportunities and thus live on that piece of land for generations. It is an important element of survival to these people. The people of the countryside never traded their land except in dire circumstances. It was a source of pride and gave a stand to the person in the society. People having several hectares of land in a particular area considered themselves as elite in the area they lived in. (Cheshire and Burn, 2000) Current scenario does not see such dedication towards land. Land is considered just another property owned by an individual. He buys it for profit motive and do not associate their feelings and emotions to the land. They buy land due to its ever increasing prices and sell it at higher price. The spiritual and cultural attachment with the land has declined but the economic attachment to land has not at all lessened. Land is kept by the people with the view to gain benefits in the future. New opportunities and urbanization have reduced the importance of land. It does not remain the only source of survival. The natives may give importance to the land handed over to them by their ancestors but the immigrants absolutely do not. It means legal possession of land. It is an old English term which includes not only the possession but also the ownership and title of the land. It also includes the right to transfer the property. According to feudal law of England, seisin is the possession of the estate. The term is not used for any other property except land of freehold tenure. It gives the owner a legal right to the property, even if there is a matter of inheritance of land, the word seisin is used. It was passed by United Kingdom Parliament. This Act was passed to modernize the real property law and also dealt with transfer of property. It was passed to make the transactions related to land easier. It has solved many problems related to land transactions that occurred before passing this Act. (Law of property Act, 1925) The sale of land was to be made as easy as sale of goods. The previous problems and issues related to land transfer were addressed and eventually kept in mind when the law was to be framed. The official records of title of land had to be kept. That was known to solve the problem of identification of title that seemed to commonly arise before transfer. The ownership was difficult to track before this law. The owner of a particular estate could not be determined due to the fact that the land was divided into several small fragments and the paperwork could not always be completed. (Wolstenholme & Cherry, 1972) The non-determination of title led to reluctance of the purchasers to purchase a piece of land required. The third party involvement also made the land undesirable for the purchaser. The Act has made the procedure simpler for both buyer and purchaser. The list of owners of land had to be kept and the transfer of title had to be properly organized. Also, the Act limited the number of people with legal rights over land thus successfully avoiding fragmentation of land. The third party interests were also kept in mind while drawing up this Act. The names of the estate owners were collected and every land that had been passed from one person to another was recorded with every owner. There were some problems regarding this as seen in the case of Oak Co-operative Building Society v Blackburn (1968) where it was held that a registration in a version of an estate owner's full names was not a nullity against a purchaser who did not search at all or searched in an incorrect name. Diligent Finance Co Ltd v Alleyne (1971) held that registering against the wrong name will not bind a third party who subsequently searches against the correct full name. The vendor was asked to bring out all the titles within fifteen years which meant that the purchaser should not be concerned with the titles before fifteen years. It worked in the interest of both vendors as well as the purchasers. The vendors should make a note of their rights regarding the land title and the purchaser must take a notice of it. In case of Worthington v Morgan (1849) no investigation of title deed were made. The liability does not lie in the hands of the vendor if none of the investigation has been done. Unregistered title deeds were to be made clear and if a purchaser does not mind it at the time of purchase as in the case of Hunt v Luck (1902) that brings liability to the purchaser and not the vendor. This Act brought about ease of transfer of title bringing about certainty to vendors, purchaser and third parties. The objective of this act was to bring about a level of fairness, transparency, comprehensiveness and accuracy in the registration process. When a land is registered, the registration is itself a document verifying the title ownership. Once the land is registered, there is no further proof required for ownership of land. Registration also reduces the risk of a purchaser being bound by undiscoverable third-party rights because a purchaser of registered land takes it free from all encumbrances except for those which are protected by an entry on the register and overriding interests, but to nothing else. Fixtures are those physical objects that are permanently attached to the house or a building. If the title of the building has been passed on by the vendor to the purchaser, the title of the fixtures goes to the purchaser too as there is permanent fixation involved. At the date of exchange of the contracts these fixtures are transferred even if the transfer does not explicitly mention them. Fittings are a part of movable property and are not permanent. They are not transferred along with the transfer of the house or building except in those cases where the transfer of these are talked about in the deed itself. (Canon, 1997) If any type of fitting is done in such a way that it cannot be separated without doing major damage to the property are perceived as fixtures and are thus transferred to the purchaser automatically so it depends upon the type of fixtures and fittings whether it will be transferred to the purchaser or not. Because the same things can sometimes, due to their temporary nature, be classified as fittings and in other times, when they are of permanent nature, are classified as fixtures. A freeholder is a person who owns the building or a house and the land where it stands, forever. He has the absolute ownership over the land and the house. There is no need to pay any type of rent and they have full control over the maintenance of the house who can change the house construction according to their whims. In UK if a person has a freehold right over a property he is said to own it outright forever. Freehold property, for obvious reasons, costs more than the leasehold property. However, the rights over the house are also unlimited. If the owner decides to sell the house he can fully do so as he has the title over the land and the building. A leaseholder only leases the house for a certain number of years from the freeholder. He has a contract with the freeholder for a certain number of years after which the land and the building is reverted back to the freeholder and remains with him till the lease is renewed. The leaseholder needs to pay the rent, maintenance fees, insurance and service charges. They are subject to restrictions and any changes done on the property must be first communicated to the freeholder, on whose permission only, will the changes be allowed to done on the property. If the terms of lease are not followed, the freeholder is allowed to forfeit the lease. A lease with shorter time frame is not worth. (Stanciulescu, 2012): Longer leases are said to be stable. After the expiry of the lease period it can again be renewed after a fresh agreement has been made and accepted. The leaseholder has the right to the building for a certain period but never on the land on which it stands. The leaser must make sure before renewing or extending the lease or buying the property converting himself from leaseholder to freeholder of the property that the title lies in the hands of his freeholder and he is not a third party in the whole transactions. He must look into the registration papers of the freeholders failing which will cause the liability of damage to fall on them. Also, the date of the title must be inspected. Sometimes the freeholders may no longer be the freeholders of the property and the property might have been transferred (Daniel, 2001). All the documents must be carefully inspected and all the aspects of the document must be understood. ‘House’, in case of leasehold property, does not include horizontal division of building or flats. It also does not include garage, yard, outhouse, garden and other such things. Lease contract must mention the lease of these premises too failing which will not grant the right to the leaseholder to use it. At any point of time, if the leaseholder fails to make any kind of payment or fulfil a condition mentioned in the contract, the freeholder can forfeit the contract and the leaseholder would be asked to leave the property. The notice of extension of lease or desire to have freehold right over a property must be carefully kept and must be presented in the office of Land Registry along with other documents. On the completion of the procedure of acquisition of freehold title, application must be given regarding the transfer of title, if the property is already registered and first time registration of land, if it is not registered before. On the transfer of title, the previous freeholder loses all the rights over the land and these rights transfer to the existing owner. In the earlier inheritance laws in UK, the sons were the only ones who had the authority to inherit the property. Daughters had no said whatsoever in the inheritance. The English law of inheritance have been inspired by Anglo-Saxon law and Norman feudalism. Earlier, various places had various types of succession rules. However, after Norman invasion uniform laws were established. Norman feudalism meant all land was held by the monarch (Klein and Robinson, 1997). These estates were granted to Lords who gave it to tenants that had no rights on the land. The land would be transferred to the lineal descendant of the tenant and there were no lineal descendant after the death of the tenant then the land would be transferred then the land would be reverted back to the Lord. When a person dies and leaves a will behind him then it is known as testate succession. If the person dies and does not leave a will behind then it is called intestate succession. In case of testate succession, the wealth is distributed as per the will keeping in mind the legal rights of the persons. In case of Intestate succession, the wealth and estate of a person is distributed according to the laws of succession being followed by the state. The distribution of estate is easier in case of testate inheritance as the representatives just have to apply and obtain the grant of Probate that they are acting on the wishes of the testator. However, the testator must be proved to be of enough mental capacity to draw out a will and also checked that the will is not drawn under coercion. Also the testator must know all about the will and any part that is drawn without his consent must not be executed. The Court does not have the power to draw a will on behalf of the testator. Also, the ratification of the will has limited possibility. It must be ratified within six months of the date of grant according to the English rule (Eliescu, 2012). The executors of the will must also be careful while distributing the estate. Moreover, he must not hold any property of the testator for long and pass it on to the mentioned Representatives after doing sufficient investigation of the same. But, it is important to consider that marriage of the testator automatically revokes the will. The exception may be that the testator was expecting to be married at the time of preparing the will. At all the other times, marriage revokes the will made by the person. Thus, the will must always contain the testator’s expectation of marriage to that particular person. This should be done to avoid any type of ambiguity or uncertainty. It is also necessary to note the importance of the authenticity of the will which must be properly attested. If the executor has any doubts regarding the same then he can get an investigation done over the same. Also the unworthy heirs to the estate cannot claim their rights of succession if they are proven guilty of murder or homicide from the court of law (Popa, 2008). But, in case of the person dying intestate, the legal representatives need to apply for a Letter of Administration to deal with the estate and it may be both complex and time-consuming as the representatives claiming a stake in interstater’s property needs to have a background check and prove a legitimate interest in the same. If the person dies leaving a spouse behind then all the property of the person goes in the hands of the spouse. However, the spouse receives only a half of the property of the deceased if he has left behind his children. If the person deceased does not have any one left behind to claim his estate under intestate law, the estate escheats to the State. However, in both the cases the legal rights of a person cannot be defeated. If the legal rights have been satisfied then the remaining property as known as the deed’s part and thus becomes a part of free estate. A residuary legacy is the whole or a share of the estate once all gifts, debts, taxes and costs associated with it have been deducted. The benefit of residuary legacies is that the value is unaffected by inflation as there is no fixed sum. The value of legacy increases with the increase in the value of estate. Pecuniary This is a gift of a fixed sum of money. These types of legacies can often be affected by inflation and their value can decrease. Reversionary This allows a person to pass the estate to an initial beneficiary for him or her to have the benefit and enjoyment during his or her lifetime. After this time, the estate is passed to a specified person or charity absolutely. Specific This is a gift of a specific item that a person feels will be beneficial to the other person. They either use the items as intended or we may sell the item and use the proceeds for the benefit of the person. Conditional This requires a particular event to occur. Conditional legacies mostly occur when a person outlive all of the named beneficiaries in your Will. References: Alchian, A.A. (2008). "Property Rights". In David R. Henderson. Concise Encyclopedia of Economics (2nd ed.). Indianapolis: Library of Economics and Liberty. ISBN 978-0865976658. Canon, J (1997), The Oxford Companion to British History, p. 405 under the heading "Gentry" (Oxford University Press, 1997) Cheshire, C and Burn, B (2000) The Modern Law of Real Property (Butterworths,16th ed, 2000) Daniel W. B, (1991). Environment and Economy: Property Rights and Public Policy. Cambridge, MA: Blackwell Pub. Eliescu, M.(1997) Course of successions. In: Fasciolosis. Bucharest. Humanitas Publishing House, 997, second vol., p. 65. Klein, B. and Robinson, J(1997). "Property: A Bundle of Rights? Prologue to the Symposium" Econ Journal Watch 8(3): 193–204, Popa, I. (2008) Course of successional lawBucharest, Legal Universe Publishing House , p. 330 Stănciulescu, L (2012): Course of civil law. Successions, Hamangiu Publishing House, p. 204 Wolstenholme & Cherry (1972) Conveyancing Statutes (Stevens, 12th ed by BL Cherry, DH Parry & JRP Maxwell, 1932); (Oyez,13th ed by JT Farrand, 1972) Cases Oak Co-operative Building Society v Blackburn (1968) Diligent Finance Co Ltd v Alleyne (1971) Worthington v Morgan (1849) Hunt v Luck (1902)
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