Law of Real Property Lecture 5

Transcription

1 Law of Real Property Lecture 5

2 Final Words on Estates Should a client ask you for advice in drafting a fee simple determinable or fee simple conditional, give them 3 words:

3 Don t do it!

4 A modified fee is a gift with strings attached. And it is worse if the recipient must struggle to understand what they have to do to keep the gift. There is also no reason why the giver should be ruling from beyond the grave.

5 I will upload a helpful table showing the differences between the types of estate in table form.

6 Learning Outcomes 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.

7 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.

8 What is Property? The word property Is used to refer to tangible or intangible things owned. May also refer to the interest a person has in a thing i.e. a person may have property or an interest or right in a thing.

9 Property can be Intangible /Incorporeal Trademarks Patent rights Copyrights Shares Tangibles/Corporeal Land Buildings Cars Ships

10 Property Classification in English Law Personal Property/Personalty Chattels real Chattels personal Real Property/Realty Corporeal Hereditament IncorporealHereditament

11 Realty

12 CORPOREAL AND INCORPOREAL HEREDITAMENTS A hereditament is any property that descends directly to the heir or that passes by inheritance. Corporeal hereditament refers to a physical or tangible part of land which can be inherited. e.g. buildings

13 Incorporeal hereditament refers to the intangible rights in or over land which are inheritable. e.g. rents, reversionary or remainder interest in land. These are called incorporeal because there is no immediate enjoyment of the physical land. Incorporeal hereditaments also include easements (right to pass over another s land) and profit a prendre (right to take away from the land, including timber, produce, minerals)

14 Land is indestructible and permanent. At common law land comprises: (a) the earth s surface, (b) the ground beneath it down to the centre of the earth, including all the minerals and natural vegetation, (c) the column of air or space incumbent on the earth - thus it extends upwards, literally up to the heavens. (This is expressed in the latin maxim, cuius est solum, eius est usque et ad coelum ad inferos 3, i.e. to whomsoever the soil belongs that also is his to the heights of the sky and to the depths of the earth. )

15 Land also comprises (d) fixtures, i.e. objects placed on the earth with the intent to have them permanently annexed to the land the maxim quicquid plantatur solo, solo cedit applies, i.e. whatever is attached to the ground is a part of it (we discuss this in the next lecture) (e) trees, crops, and fruits growing on the land so long as they are not severed.

16 Statutory definitions of land Section 2, Property Act (Barbados) defines land as the surface of the earth, the space above it and the things below it, and includes houses and other structures whatsoever. Section 3, Conveyancing Act (Jamaica) provides that land includes houses and buildings.

17 Section 2, Law of Property Act, Belize provides that land includes land of any tenure, mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments, and an easement, right, privilege or benefit in, over or derived from land, but not an undivided share in land.

18 Personalty

19 There are two types of personalty chattel real and pure chattel. The term Chattel real is confusing because it actually refers to leases. This was because, in the common law, when a lease was lost, the court could only award damages it could not order the return of the specific property as with realty.

20 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. 200.

21 Chattels personal or pure personalty This comprises all other personalty. It includes choses in action legal rights but are not capable of physical possession. e.g. shares, debts, stocks and bonds, copyright patents They are not capable of physical handling, but by documents of title and instruments recognised by the law as transferring the title, the incorporeal right to sue,.. [they are] documents which are capable of being enforced and treated as subjects of property : New York Breweries Co. Ltd. v. Att.-Gen. [1899] A.C. 62, 68

22 and choses in possession. movable and transferrable by delivery of possession. destructible. corporeal and visible.

23 St. Lucia Under the French Civil Code, the term bien includes a thing or property when appropriated and has an owner and the rights in rem to which they are subject. Some things cannot be appropriated. These include the air, the running waters in rivers and the sea. Things which have no other owner belong to the state Arts

24 Art. 333, St. Lucia Civil Code - All property, incorporeal as well as corporeal, is movable or immovable.

25 Immovable There are four types: (Art 334) Immovable by nature Immovable by destination Immovable by reason of the object to which it is attached Immovable by determination of law

26 Property IMMOVABLE BY ITS NATURE Lands, steam-mills, water-mills, wind-mills and buildings are immoveable by their nature : Art. 335, Civil Code Growing trees, crops and fruits are also immoveable, but become moveable when severed from the soil : Art. 336, Civil Code

27 Property IMMOVABLE BY ITS NATURE DOES NOT include: (i) severed vegetable crops Property movable by anticipation: (ii) crops due to be harvested, (iii) growing wood earmarked to be cut, and (iv) stone in a quarry sold to be used in construction

28 Property IMMOVABLE BY DESTINATION These are objects which would normally be movables but which are considered to be immovable by reason of their attachment to immovable property by the proprietor of the land. They are immovable so long as they remain there. (Art 337)

29 The following and similar objects are immovable by destination: 1. Presses, boilers, stils, vats and tuns; 2. All utensils necessary for working forges, mills and manufactories (factories). 3. Manure and straw and other substances intended for manure, are likewise immovable by destination. 4. All cattle, carts and cranks and other implements used in the working of an estate.

30 Conditions for item to become immovable by destination affixation should be by owner and not tenant or someone other than the proprietor (nailed, cemented, etc) Both objects must be owned by the landowner. Property must have been affixed for the service and exploitation of the immovable property.

31 Art. 338 : Mirrors, pictures and other ornaments are considered to have been placed permanently when without them the part of the room they cover would remain incomplete or imperfect.

32 IMMOVABLE BY THE OBJECTS TO WHICH THEY ATTACH Emphyteusis (long leases)and rents from it (Arts. 345 and 346) Servitudes and usufructs (civil law equivalents of for easements and restrictive covenants) Under the civil law, these rights are classified as immovable. This mirrors the common law classification of easements as incorporeal hereditaments. 32

33 IMMOVABLES IN ST. LUCIA Property IMMOVABLE BY DETERMINATION OF LAW Art. 340: All moveable property of which the law ordains or authorises the conversion into immoveable property becomes immoveable by determination of law either absolutely or for certain purposes. Also the moneys produced by the redemption of constituted rents which belong to minors are immoveable. 33

34 MOVABLES IN ST. LUCIA All biens which are not immovable are movables. This includes those which are movable by anticipation. Art. 341: Property is movable by its nature or by determination of law. 34

35 MOVABLES IN ST. LUCIA Property MOVABLE BY NATURE Things that can be physically moved from one place to another either by themselves or by external force: Art Things which are visible and tangible and can be physically controlled and relocated Exceptions:- (a) Tangible things which are annexed to a building, wall or fence, or (b) Things which are temporarily separated from a building or wall or fence, so long as they are destined to be replaced. 35

36 MOVABLES IN ST. LUCIA Incorporeal rights relating to movables Leases which are not emphyteusis (Art. 346) Rents from those leases (Arts ). Rights relating movables (Art. 344). 36

37 MOVABLES IN ST. LUCIA Property Movable by Determination of Law (1) Immovables converted to movables by law for certain purposes (Art. 344). (2) Shares in a partnership or company are considered as movables so long as the partnership or the company exists (Art. 344). 37

38 CLASSIFICATION OF PROPERTY IN GUYANA 38

39 CLASSIFICATION OF PROPERTY IN GUYANA Property is: i. Immovable and ii. Movable Roman-Dutch law tradition prior to English common law adopted in part in 1917 (s.3(a) Civil Law of Guyana). 39

40 IMMOVABLES IN GUYANA Replacing Roman-Dutch land law The options: (a) English common law of realty not affording absolute ownership of law (b) English common law of personalty affording absolute ownership 40

41 IMMOVABLES IN GUYANA Replacing Roman-Dutch land law The English common law of personalty was adopted to govern land, i.e., immovable property in Guyana. Civil Law of Guyana, s.3(c): (c) the English common law of real property shall not apply to immovable property in Guyana ; 41

42 IMMOVABLES IN GUYANA Civil Law of Guyana, s.3(d): (d) there shall be as heretofore one common law for both immovable and movable property, and all questions relating to immovable property within Guyana and to movable property subject to the law of Guyana shall be adjudged, determined, construed and enforced, as far as possible, according to the principles of the common law of England applicable to personal property... 42

43 IMMOVABLES IN GUYANA Section 2 Civil Law immovables include:- 1. Real property 2. Chattels real The law recognises the estates in land created by the common law but they are bereft of the incidents that would impair absolute ownership (s. 3(d)(i) Civil Law of Guyana). 43

44 IMMOVABLES IN GUYANA Note that: (i) The rules of succession or primogeniture which apply to estates in land in English common law do not apply s.3(d)(i). (ii) The rules concerning mortgages, land conveyances and easements remains as it was before 1917 s.3(d)(ii) 44

45 IMMOVABLES IN GUYANA (iii) s.2(3), Civil law of Guyana: The law retains certain rights, privileges and titles that are not available in English common law (where no equivalent exists or where by virtue of local customs the Guyanese High Court maintains that the Roman-Dutch rules obtains). 45

46 MOVABLES IN GUYANA Movables are: 1. choses in action 2. choses in possession Chattel Real (lease) is NOT a movable property in Guyana. A lease of whatever duration is not a movable property. All leases are immovable. 46

47 Rights in realty are described as rights in rem or rights against the whole world. Such rights are in contrast to rights in personam which are rights against a particular person and only that person. We ll discuss this further in Equity.

48 Classify this

49 Which of the following is immovable by determination of a) Steam mill; law? b) Rents from property owned by a minor; c) Money inherited as part of a marriage settlement; d) Corn to be harvested

50 Blocks which have been temporarily removed from a wall are: A.Movable property B. Immovable property

51 Trademarks and patents are examples of this kind of property?

52 Chattel or realty?

53 Chattel or realty?

54 Which of these is an example of an incorporeal hereditament?

55 Movable or immovable?

56 Which of these is immovable by destination?

57 What is this classified as in St. Lucia?

58 In Guyana the following are?