Property law

Common law Law Contract

Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property.[1] Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it.[1]

The concept, idea or philosophy of property underlies all property law. In some jurisdictions, historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty.

Though the Napoleonic code was among the first government acts of modern times to introduce the notion of absolute ownership into statute, protection of personal property rights was present in medieval Islamic law and jurisprudence,[2] and in more feudalist forms in the common law courts of medieval and early modern England.


The word property, in everyday usage, refers to an object (or objects) owned by a person—a car, a book, or a cellphone—and the relationship the person has to it.[3] In law, the concept acquires a more nuanced rendering. Factors to consider include the nature of the object, the relationship between the person and the object, the relationship between a number of people in relation to the object, and how the object is regarded within the prevailing political system. Most broadly and concisely, property in the legal sense refers to the rights of people in or over certain objects or things.[4]

Non-legally recognized or documented property rights are known as informal property rights. These informal property rights are non-codified or documented, but recognized among local residents to varying degrees.

Justifications and drawbacks of property rights

In capitalist societies with market economies, much of property is owned privately by persons or associations and not the government. Five general justifications have been given on private property rights:[1]

  1. Private property is an efficient way to manage resources in a decentralized basis, allowing expertise and specialization to develop with regard to the property.
  2. Private property is a powerful incentive for owners to put it to productive use, because they stand to gain in the investment.
  3. Private property allows exchanges and modifications.
  4. Private property is an important source of individual autonomy, giving individuals independence and identity distinct from others.
  5. Private property, being dispersed, allows individuals to exercise freedom, against others or against the government.

Arguments in favor of limiting private property rights have also been raised:[5][1]

  1. Private property can be used in a way that is harmful to others, such as a factory owner causing loud noises in nearby neighborhoods. In economics, this is known as a negative externality. Nuisance laws and government regulations (such as zoning) have been used to limit an owners' right to use the property in certain ways.
  2. Property can lead to monopolies, giving the owner the power to unfairly extract advantages from others. Because of this, there is often laws on competition and antitrust.
  3. Property can lead to the commodification of certain domains which people would prefer not to be commodified, such as social relations. There is debate in certain countries, for example, on whether organ sales or sex services should be legal.
  4. Private property gives individuals power, which can exacerbate over time and lead to too much inequality within a society. The propensity for inequality is justification of wealth redistribution.

Natural rights and property

In his Second Treatise on Government, English philosopher John Locke asserted the right of an individual to own one part of the world, when, according to the Bible, God gave the world to all humanity in common.[6] He claimed that although persons belong to God, they own the fruits of their labor. When a person works, that labor enters into the object. Thus, the object becomes the property of that person. However, Locke conditioned property on the Lockean proviso, that is, "there is enough, and as good, left in common for others".

U.S. Supreme Court Justice James Wilson undertook a survey of the philosophical grounds of American property law in 1790 and 1791. He proceeds from two premises: “Every crime includes an injury: every injury includes a violation of a right.” (Lectures, III, ii.) The government's role in protecting property depends upon an idea of right. Wilson believes that "man has a natural right to his property, to his character, to liberty, and to safety.”[7] He also indicates that “the primary and principal object in the institution of government... was... to acquire a new security for the possession or the recovery of those rights”.[8]

Wilson states that: “Property is the right or lawful power, which a person has to a thing.” He then divides the right into three degrees: possession, the lowest; possession and use; and, possession, use, and disposition – the highest. Further, he states: “Useful and skillful industry is the soul of an active life. But industry should have her just reward. That reward is property, for of useful and active industry, property is the natural result.” From this simple reasoning he is able to present the conclusion that exclusive, as opposed to communal property, is to be preferred. Wilson does, however, give a survey of communal property arrangements in history, not only in colonial Virginia but also ancient Sparta.

Property rights

There are two main views on the right to property, the traditional view and the bundle of rights view.[9] The traditionalists believe that there is a core, inherent meaning in the concept of property, while the bundle of rights view states that the property owner only has bundle of permissible uses over the property.[1] The two views exist on a spectrum and the difference may be a matter of focus and emphasis.[1]

William Blackstone, in his Commentaries on the Laws of England, wrote that the essential core of property is the right to exclude.[10] That is, the owner of property must be able to exclude others from the thing in question, even though the right to exclude is subject to limitations.[11] By implication, the owner can use the thing, unless another restriction, such as zoning law, prevents it.[1] Other traditionalists argue that three main rights define property: the right to exclusion, use and transfer.[12]

An alternative view of property, favored by legal realists, is that property simply denotes a bundle of rights defined by law and social policy.[1] Which rights are included in the bundle known as property rights, and which bundles are preferred to which others, is simply a matter of policy.[1] Therefore, a government can prevent the building of a factory on a piece of law, through zoning law or criminal law, without damaging the concept of property.[1] The "bundle of rights" view was prominent in academia in the 20th century and remains influential today in American law.[1]


Different parties may claim a competing interest in the same property by mistake or by fraud, with the claims being inconsistent of each other. For example, the party creating or transferring an interest may have a valid title, but may intentionally or negligently create several interests wholly or partially inconsistent with each other. A court resolves the dispute by adjudicating the priorities of the interests.

Property rights and rights to people

Property rights are rights over things enforceable against all other persons. By contrast, contractual rights are rights enforceable against particular persons. Property rights may, however, arise from a contract; the two systems of rights overlap. In relation to the sale of land, for example, two sets of legal relationships exist alongside one another: the contractual right to sue for damages, and the property right exercisable over the land. More minor property rights may be created by contract, as in the case of easements, covenants, and equitable servitudes.

A separate distinction is evident where the rights granted are insufficiently substantial to confer on the nonowner a definable interest or right in the thing. The clearest example of these rights is the license. In general, even if licenses are created by a binding contract, they do not give rise to property interests.

Property rights and personal rights

Property rights are also distinguished from personal rights. Practically all contemporary societies acknowledge this basic ontological and ethical distinction. In the past, groups lacking political power have often been disqualified from the benefits of property. In an extreme form, this has meant that people have become "objects" of property—legally "things" or chattels (see slavery.) More commonly, marginalized groups have been denied legal rights to own property. These include Jews in England and married women in Western societies until the late 19th century.

The dividing line between personal rights and property rights is not always easy to draw. For instance, is one's reputation property that can be commercially exploited by affording property rights to it? The question of the proprietary character of personal rights is particularly relevant in the case of rights over human tissue, organs and other body parts.

The rights of women to control their own body have been in some times and some places subordinated to other people's control over their fetus. For example, government intervention that controls the conditions of birthing by prohibiting or requiring caesarian sections. Whether and how a woman becomes pregnant or carries a pregnancy to term is also subject to laws mandating or forbidding abortion, or restricting access to birth control. A woman's right to control her body during pregnancy or possible pregnancy – what work she does, what food or substances she ingests, other activities she engages in – have also frequently been subject to restrictions by many other parties; in response, a number of countries have passed laws banning pregnancy discrimination. English judges have recently made the point that such women lack the right to exclusive control over their own bodies, formerly considered a fundamental common-law right.[citation needed]

In the United States, a "quasi-property" interest has been explicitly declared in the dead body. Also in the United States, it has been recognised that people have an alienable proprietary "right of publicity" over their "persona". The patent/patenting of biotechnological processes and products based on human genetic material may be characterised as creating property in human life.

A particularly difficult question is whether people have rights to intellectual property developed by others from their body parts. In the pioneering case on this issue, the Supreme Court of California held in Moore v. Regents of the University of California (1990) that individuals do not have such a property right.


Property law is characterised by a great deal of historical continuity and technical terminology. The basic distinction in common law systems is between real property (land) and personal property (chattels).

Before the mid-19th century, the principles governing the transfer of real property and personal property on an intestacy were quite different. Though this dichotomy does not have the same significance anymore, the distinction is still fundamental because of the essential differences between the two categories. An obvious example is the fact that land is immovable, and thus the rules that govern its use must differ. A further reason for the distinction is that legislation is often drafted employing the traditional terminology.

The division of land and chattels has been criticised as being not satisfactory as a basis for categorising the principles of property law since it concentrates attention not on the proprietary interests themselves but on the objects of those interests.[13] Moreover, in the case of fixtures, chattels which are affixed to or placed on land may become part of the land.

Real property is generally sub-classified into:

  1. corporeal hereditaments – tangible real property (land)
  2. incorporeal hereditaments – intangible real property such as an easement of way

Although a tenancy involves rights to real property, a leasehold estate is typically considered personal property, being derived from contract law. In the civil law system, the distinction is between movable and immovable property, with movable property roughly corresponding to personal property, while immovable property corresponding to real estate or real property, and the associated rights, and obligations thereon.


The concept of possession developed from a legal system whose principal concern was to avoid civil disorder. The general principle is that a person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to do so.

In England, the Torts (Interference with Goods) Act 1977 has significantly amended the law relating to wrongful interference with goods and abolished some longstanding remedies and doctrines.

Transfer of property

The term "transfer of property" generally means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons. To transfer property is to perform such an act.

The most common method of acquiring an interest in property is as the result of a consensual transaction with the previous owner, for example, a sale or a gift. Dispositions by will may also be regarded as consensual transactions, since the effect of a will is to provide for the distribution of the deceased person's property to nominated beneficiaries. A person may also obtain an interest in property under a trust established for his or her benefit by the owner of the property.

It is also possible for property to pass from one person to another independently of the consent of the property owner. For example, this occurs when a person dies intestate, goes bankrupt, or has the property taken in execution of a court judgment.


Historically, leases served many purposes, and the regulation varied according to intended purposes and the economic conditions of the time. Leaseholds, for example, were mainly granted for agriculture until the late eighteenth century and early nineteenth century, when the growth of cities made the leasehold an important form of landholding in urban areas.

The modern law of landlord and tenant in common law jurisdictions retains the influence of the common law and, particularly, the laissez-faire philosophy that dominated the law of contract and the law of property in the 19th century. With the growth of consumerism, the law of consumer protection recognised that common law principles assuming equal bargaining power between parties may cause unfairness. Consequently, reformers have emphasised the need to assess residential tenancy laws in terms of protection they provide to tenants. Legislation to protect tenants is now common.

See also

Property law in different jurisdictions:


  1. ^ a b c d e f g h i j k Merrill, Thomas W. (2010). Property. Smith, Henry E. New York: Oxford University Press. ISBN 978-0-19-971808-5. OCLC 656424368.
  2. ^ Makdisi, John (2005). Islamic Property Law: Cases and Materials for Comparative Analysis with the Common Law. Carolina Academic Press. ISBN 1-59460-110-0.
  3. ^ Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J. MARSHALL REV. INTELL. PROP. L. 604 (2016) https://repository.jmls.edu/cgi/viewcontent.cgi?article=1392&context=ripl
  4. ^ Badenhorst, PJ, Juanita M. Pienaar, and Hanri Mostert. Silberberg and Schoeman's The Law of Property. 5th Edition. Durban: LexisNexis/Butterworths, 2006, p. 9.
  5. ^ Property, mainstream and critical positions. Macpherson, C. B. (Crawford Brough), 1911-1987. Toronto: University of Toronto Press. 1978. ISBN 0-8020-2305-3. OCLC 3706603.CS1 maint: others (link)
  6. ^ Locke, John, 1632-1704. (1980). Second treatise of government. Macpherson, C. B. (Crawford Brough), 1911-1987. (1st ed.). Indianapolis, Ind.: Hackett Pub. Co. ISBN 0-915144-93-X. OCLC 6278220.CS1 maint: multiple names: authors list (link)
  7. ^ "Of the Natural Rights of Individuals | Teaching American History". teachingamericanhistory.org. Retrieved 2018-03-24.
  8. ^ Dreisbach, Daniel L.; Hall, Mark D.; Morrison, Jeffry H. (2004-10-08). The Founders on God and Government. Rowman & Littlefield Publishers. ISBN 9780742580466.
  9. ^ Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. Legal Stud. S453 (2002).
  10. ^ Blackstone, William, 1723-1780. Commentaries on the laws of England, volume 2 : of the rights of things (1766). Chicago. ISBN 978-0-226-16294-2. OCLC 913869367.CS1 maint: multiple names: authors list (link)
  11. ^ Penner, J. E. (James E.) (1997). The idea of property in law. Oxford: Clarendon Press. ISBN 0-19-826029-6. OCLC 35620409.
  12. ^ Epstein, Richard Allen, 1943- (1985). Takings : private property and the power of eminent domain. Cambridge, Mass.: Harvard University Press. ISBN 0-674-86728-9. OCLC 12079263.CS1 maint: multiple names: authors list (link)
  13. ^ Felix Cohen, "Dialogue on Private Property" (1954) Rutgers LR 357.