UNIVERSITY OF THE WEST INDIES FACULTY OF LAW REAL PROPERTY I. Worksheet CLASSIFICATION OF PROPERTY

Transcription

1 UNIVERSITY OF THE WEST INDIES FACULTY OF LAW REAL PROPERTY I Worksheet CLASSIFICATION OF PROPERTY LEARNING OBJECTIVES By the end of this lesson, you should be able to:- Define land Explain the difference between real and personal property. Explain and illustrate the significance of the following terms: chattels real, right in rem and right in personam. Outline ownership rights. Explain the maxims cuius est solum eius est usque ad caelum ad inferos and quic quid plantatur solo solo cedit Discuss the difference between the classification of property in St. Lucia, Guyana and the rest of the Commonwealth Caribbean. 1 COMMON LAW CLASSIFICATION General Readings: Owusu, Commonwealth Caribbean Land Law, Chapter 1 Megarry and Wade, The Law of Real Property, Chapter 1 para and Chapter 3- paras Kevin and Susan Gray, Elements of Land Law (5 th ed.), pp Crossley Vaines, Personal Property (4 th ed.), pp J W Cecil Turner, Some Reflections on Ownership in English Law (1941) 19 Canadian Bar Review WHAT IS PROPERTY? The literature illustrates that the term property may be used to describe a number of things. It may be used to describe tangible and intangible assets as well as rights people enjoy in those assets. Those rights are referred to as proprietary rights. This is reflected in the following statement - property comprehends tangibles and intangibles, movables and immovables, it 1

2 means a tangible thing (land or chattel) itself, or rights in respect of that thing, or rights, such as a debt in relation to which no tangible thing exists. 1 The common law broadly classifies property into: (i) (ii) Land or real property this includes corporeal and incorporeal hereditaments. Personalty or personal property this includes chattels real and pure personalty. Both categories of property (real and personal) may include intangible rights Real Property Read: Kodilinye, Commonwealth Caribbean Property Law, Chap. 1 Megarry and Wade, The Law of Real Property, Chap 1, para We are specifically concerned in this course with the rights and obligations in respect of realty. We will examine also the distinction between realty and personality under the common law. This will help in our understanding of what constitutes real property. The common law phrase real property refers to land and the things which are attached to it. Land is immovable, permanent and tangible. 2 Historically the term is meant to describe Interests in the res (the thing) which are actionable by a real action. A real action or actio realis is an action for the return of the thing (res) itself to the dispossessed owner. Thus, the person who is lawfully entitled to possession of real property (the disseisee) is entitled to bring an action for possession against as person illegally occupying the property (the disseisor). This action was not available in respect of personal property. Realty comprises: (i) (ii) corporeal hereditaments permanent tangible aspects of land that can be seen and handled - soil, minerals, trees and other things part or fixed on land (fixtures); and incorporeal hereditaments intangible inheritable rights in, over or in respect of land. This category includes easements and profits-a-prendre. 1 2 Crossley Vaines, Personal Property (4 th edition), p. 3 Sampson Owusu, Commonwealth Caribbean Land Law 2

3 Defining land (introduction) Common law - The maxims cuius est solum eius est usque ad caelum ad inferos and quicquid plantatur solo, solo cedit apply. The first means he who owns the surface owns everything up to the heavens and down to the depths of the earth. The maxim can be traced to medieval times from the 13 th century Roman legal scholar Accursius Bocardo SA v Star Energy Weald Basin Ltd. & Anor. [2010] UKSC 35, [2009] 3 WLR 1010 (see pp , Gray, Elements of Land Law (5 th ed.)). This is subject to a number of exceptions under the modern law of real property including the right of the Crown (government) to certain entitlements in respect of minerals and use of airspace which permit mining and the flight of airplanes in the airspace above the surface. The impact of the maxim is therefore diminished under the modern law as a result of statutory intervention. The second maxim, quicquid plantatur solo, solo cedit means whatever is attached to the ground becomes a part of it. Those things which have become so attached to the land are referred to as fixtures. We will discuss Fixtures in Worksheet 4. Statutory definitions Statutes in the region codify the common law position:- Section 2, Barbados Property Act land means the surface of the earth, the space above it and the things below it, and includes inter alia houses and other structures whatsoever and mines and minerals, whether or not held apart from the surface; land covered by water. Section 3, Registration of Titles Act, Jamaica provides that land shall include messuages, tenements and hereditaments, corporeal or incorporeal; and in every certificate of title, transfer and lease, issued or made under this Act, such word shall also include all easements and appurtenances appertaining to the land therein described, or reputed to be part thereof or appurtenant thereto. Legislation now vests the right to mine minerals in the state e.g. s. 4, Civil Law Guyana; and s. 4, Mines Regulation Act, Cap. 184, Barbados. Thus, in Bocardo SA v Star Energy Weald Basin Ltd. & Anor., it was held that the owner of the surface owns strata beneath the surface of his land, including minerals, unless there has been some express or implied alienation of the whole or a particular part of the strata to another Personalty or Personal Property or Chattels Read: Extract from Crossley Vaines, Personal Property referred to above 3

4 Personalty is used to traditionally refer to all property that is not freehold land or those things which are attached to freehold land. Freehold land is subject to indeterminate ownership as distinct from a leasehold (property held by a lease). Personalty comprises: (i) chattels real and (ii) pure personalty. Chattels real The term chattel real is used in the common law to refer to leaseholds or leases. A lease is the grant of exclusive possession of land for a definite duration of time, usually in return for a periodic payment of money Prudential Assurance Co. Ltd. v London Residuary Body [1992] 2 AC 386, 390, Street v Mountford [1985] AC 809 at 818 and Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 at 413E-F. Although a lease shares characteristics with realty, at common law it is considered personalty. Unlike realty, there was no action for recovery of the res where personalty was stolen or lost the action was one for damages (compensation for loss). However, statute in most places (including the UK) now includes leases within the definition of land see s. 3(1) Property Act, Barbados and s. 2, Law of Property Act, Belize. The Belizean section defines land as land of any tenure This has been construed as including leasehold interests Re Brooker [1926] W.N. 93 and Re Berton [1939] Ch Chattels personal or pure personalty This comprises all other property not listed above. This comprises choses in action (New York Breweries Co. Ltd. v. A-G. [1899] AC 62, 68) and choses in possession. 2 CIVIL LAW CLASSIFICATION IN ST. LUCIA Read: Owusu, Chap. 1 Lawson et al., Amos & Walton s Introduction to French Law, pp St. Lucia Civil Code, 1957, Arts Under the Civil Code in St. Lucia, property (bien) is classified as either movables (res mobiles) or immovable (res immobiles or res solis) Art The Code prescribes those things which are movables or immovable. Immovables (Part Second, Chapter First, St. Lucia Civil Code) Land and things underneath and attached to it. Land may be subject to certain real rights which are not applicable to movables. The Code at Article 334 provides for four types of 4

5 immovables: (i)immovables by nature, (ii) immovables by destination and (iii) immovables by the object to which they apply and those (iv) immovables by determination of law. Property immovable by nature (Art ) Movables (Part Second, Chapter Second, St. Lucia Civil Code) This refers to property that is not immovable, having as its distinguishing feature the absence of physical mobility. 3 Property is movable by its nature or by determination of law Art. 341, St. Lucia Civil Code. Art. 342 states that [a]ll bodies which can be moved from one place to another, either by themselves, as animals, or by extrinsic force, as inanimate things, are movable by nature. See also Arts CLASSIFICATION OF PROPERTY IN GUYANA (ROMANO-DUTCH TRADITION) Read: Owusu, Chap. 1 Ramsohaye, The Development of Land Law in British Guiana, Chap. 2 (available at the reserve desk in the library and in e-learning) Civil Law Ordinance, Guyana, 1916, ss. 2 and 3 Under Roman-Dutch legal tradition, land can be held absolutely by its owner. Thus, future interests in land 4 are not recognised. e.g. a gift of a life interest made by the owner during his life time will vest absolute ownership in the grantee. This is preserved in Guyana by the adoption of the English law on personalty after This applies the law on personalty to BOTH real and personal property in Guyana. 5 Real and personal property in Guyana are referred to as immovable and movable property respectively as under the French Civil Law tradition in St. Lucia. Immovable property includes land and leasehold interests. Guyanese law recognises freehold estates as the common law does. These are not recognised in St. Lucia. Movable property includes choses in action and choses in possession. Chattels real are excluded from the meaning of movables (in contrast to the common law s definition of personalty which includes leases) Amos and Walton s Introduction to French Law Except for life interests in leases which may be bequeathed see Ramsohaye extract. This does not apply with regards to servitudes. Statute law governs the creation and extinguishing of servitudes. 5

6 Past Exam Questions: Dec 2013, q6 There appears to be three different systems of classification of property in the Commonwealth Caribbean. Discuss. Dec 2016m q3 In Mitchell v Mosley [1914] 1 Ch. 438, 450, Cozens Hardy MR said that the grant of the land includes the surface and all that is supra houses, trees and the like and everything that is infra mines, earth and clay, etc... Plainly, the source for these remarks was the well-known Latin brocard cuius est solum, eius est usque ad coelum et ad inferos. per Lord Hope in Star Energy Weald Bason Ltd v Bocardo SA [2010] UKSC 35. Critically assess whether the foregoing is a true statement of the law in the Commonwealth Caribbean. 6