К содержанию номера журнала: Вестник КАСУ №3 - 2005
Автор: Бонтрагер В.
If Criminal Law can be considered issues
related to Public Wrongs, while Torts relate to Private Wrongs, Property Law
might be considered focused on the issue of “rights.” It has also been claimed
that it was the need for a law of property that brought about a need for many
other types of Civil Law.
It is the right to private property
ownership ("mine, not yours"), and the ability to own the “means of
production” a person may get from the use of their property which gives us the
need for Property Law. If there is no right to Private Property, then the King
owns everything and punishes any who violate the laws he makes to protect what
The Bible says that God created
everything. That means no man has ever created anything (other than maybe a
thought) and that man only manufactures – takes from what God made and re‑makes
God then gave man dominion over
everything, not ownership. Dominion is the right to possess and use, but it is
subject to a condition of “proper husbandry” (also called “stewardship), that
is, taking care of what is God's for God. Therefore, as to God, we are never
“owners” and should act reasonably relative to our property. This idea carries
with it an environmental and ecological concept for personal responsibility
irrespective of governmental action or inaction.
However, we may, as to one another, be
The 8th Commandment says, "Thou shalt
not steal." This is the basis for private, personal property ownership.
There can be no theft unless people own things to be stolen by others. Of
course, land cannot be stolen, but its use can be taken from someone in many
In the law given by God to His people Israel, land ownership was in the 12 tribes and not in individual
people (with some exceptions for houses located “within walled cities”).
God also provided for the Sabbatical Year,
and the Year of Jubilee. At the beginning of the 7th year, land was
to lie fallow, slaves were to be set free, and debt collection frozen for the
year (as well as no interest being charged during that year). At the beginning
of the 50th year, remaining balances of all debts were to be
forgiven, and all land was to be returned to its original tribe. This was to
prevent economic servitude from developing, to re‑confirm that all
belonged to God, and to re‑confirm the need to properly take care of the
things of the universe. It did not return people to some “all equal” status,
but it did bring down the upper disparity and raise up the lower disparity.
Since two of the actions in Trespass were
based upon injury to property or property rights, a Law of Property would be
required so that we could determine who owned what, or had what rights in what
If you damage my property, we need Tort
If I want to sell the land to you, we need
If I want you to get my property when I
die, we need Inheritance Law.
If I want to transfer some of my property
by check, we need Negotiable Instruments Law.
If we want to be merchants or manufacturers
of products, we need Merchant Law.
And we need Remedies and Procedure to make
the law work for us when some one breaches the law against us.
Thus, much of Civil Law grows out of the
need for Property Law.
Property Law asks these essential
(1) What are the level of rights –
ownership, possession, use; present or future; contingent or certain; etc – of
the competing parties; i.e., whose rights are the higher;
(2) Is the proof, as in any civil case,
sufficient to tip the scales – preponderance of the evidence; and,
(3) What needs to be done to uphold or
protect the rights – the question of Remedies.
Because of the importance attached to
ownership of property and the means of production – as well as the right to
peaceable enjoyment of one’s property – actual damages did not need to be shown
to bring and win a case in Property Law. Only the superior right in the
property needed to be established. The earliest cases were, like in Tort law,
all based upon the concept of Strict Liability – volitionally doing an act
interfering with the superior property right of another.
Property law is, more than any other field
of Western Law, a law of words and phrases – many of which are very archaic.
What follows are merely a few of the more important concepts.
Property may be Real, Personal,
or Mixed in its essential character.
Real property is land and those things permanently
attached to the land;
Personal property contemplates movable property;
Mixed property (sometimes called fixtures)
is personal property which has become so attached to real property as to have
lost its movable character and cannot be removed from land or building without
causing material damage to the real property.
Property may also be Tangible or Intangible.
This is not a concept of being able to physically touch, but a concept of
value. Tangible means touchable and valuable of itself, while Intangible may
be touchable but have no value in and of itself. A piece of paper carrying a
stock certificate is a piece of paper and thus of no practical value; but as a
“stock certificate” it represents the value of its percentage of interest in
the company issuing the certificate. The same is true of a Debit Card, or a
piece of paper currency.
A person may have Legal and/or Equitable Interests in any
given property. Equitable interest include those which may
have no right to own, possess, or use the property do but have a right to
receive value (rents) from the property. Thus there is a some ability –
through, for example, a civil action for Accounting – to control the actions of
those who do have ownership, use, or possession so that your right to receive
from the property is not harmed.
The three great indicators of rights in
property – Ownership, Possession, and Use – can be
separated into different people at the same time. I might give you my pen and
say, “Do not use it; merely hold it for Natasha and when she asks for it, give
it to her.” I would then say to Natasha, “Ivan is holding my pen for you to
use as you desire, but he is not to use it.” In that situation, I have
ownership, Ivan has possession, and Natasha has the right to use – and each of
us may, as against the other, seek enforcement of our rights in a case in
As to real estate (land), rights may be On, Above, and
Under the land. Once again, like in ownership,
possession and use, these three rights may be separated. Thus, in my case, I
own a piece of land in Colorado, but someone else owns the mineral rights
in the sub-surface land, and my airspace is subject to use by aircraft.
Rights in property may also be Current, Future, and/or Contingent in nature – and may also be subject to
being taken away from you because of your future acts.
Let’s say I have a piece of land, a wife,
and one son (whom I do not think much of). So I deed my land (or provide in my
Last Will and Testament) that at the time of my death, my wife shall have the
right to live on (or receive the income from) the land so long as she shall
live. This is called a Life Estate. At her death, the land shall go to
the children of my son, if he has any living at the death of my wife. Those
grand-children of mine have a Contingent Interest in that they must come
into existence and survive my wife in order to take any rights in the property.
If they do so, they will become, under this language, owners of a Fee Simple
Absolute, the highest and best rights in land available. My son has no
rights whatsoever under this language.
But there is a problem: let’s say my wife
dies and my son has no children; then there is a Remainder Interest –
that which is left after my wife’s Life Estate – which has not been
transferred. What happens to it? It Reverts to me! But I am dead; it
then looks for my Heirs-at-Law (determined by statutes rather than by
being listed in my Will), and passes in equal shares to them based upon the
level of relationship with me. First my children; since I have only one child
(my son), he would get it all if then living. If he were not living, it
would seek out my other heirs according to State Statutes of Descent.
And if there were none, then it would escheat to the State.
Now let’s change the facts. I have no
wife, and one son. In my will, I leave my land to my son, with this provision:
“Provided that if my son ever consumes alcohol on the land, then the land shall
pass to The Ladies for Abolition of Alcohol” – which, we assume, is an existing
charitable organization. I die, and one day my son is found drinking alcohol
on the land. At once, title passes on to the Ladies for Abolition of Alcohol;
my son’s future action caused him to lose title. [I won’t bother giving you the
technical name for this, or distinguishing by another technical name from the
situation where the loss would not be automatic but only upon exercise of a
right in someone else to enter and take over through appropriate court action.]
Complicated, yes; but absolutely necessary
if there is to be private ownership of land.
Ownership of property may be in more than
one person at the same time. Joint Tenancies, Common Tenancies,
and Tenancies by Entireties are all examples of multiple simultaneous
ownership. Joint Tenancy means that there is a right of survivorship between
the parties, while Common Tenancies do not have that feature. However, in both
types of tenancies, any party may transfer their undivided interest to someone
else, and can force a Partition of the land into specific shares (like
shares in a corporation) or actual physically described pieces of land, based
upon their percentage of ownership. Tenancy by Entireties are limited to land
owned by husbands and wives; and while there is an automatic right of
survivorship, neither party can transfer or encumber (allow a Lien to be
made against) the land without the joining in the transfer by the other spouse.
Partition: “Any division of real or personal property between
co-owners resulting in individual ownership of the interests of each”.
Lien: “A claim, encumbrance or charge on property for the
payment of some debt, obligation or duty. A qualified right of property which
a creditor has in or over specific property of his debtor as security for the
debt or charge or for the performance of some act”.
Property may also be Public or Private in nature, public meaning the general public can have access to and make use of
Land can also be subjected to Conditions, Covenants, and Easements (as well as other “rights”). A
Condition is a limitation on the use which, if the condition is violated,
results in the property reverting to the full owner (and an ouster of
the right of the one violating the condition). A Covenant is an agreement among
owners for mutual restrictions on their, most often, adjoining properties; one
example would be “only single-family dwellings are allowed to be erected on
this land.” Proper covenants “run with the land” and thus bind future owners
unless and until all the property owners agree to release the covenants.
Easements are grants of partial use for specific purposes. As an example, I
had a piece of land in Colorado which I could not reach from the public road
without driving across the land of a neighbor; so the neighbor gave me an
easement, or right to drive across a very specific portion of his land in order
to get to my land.
Today, ownership of land is often subject
to rights of government to, to various degrees, control use. This is done
through Land Use and Zoning laws.
Landlord-Tenant Law is a subject which deals with the
respective rights between the Tenant and the Owner of a piece of property.
Tenancy can be for a Fixed Term, or At Will. Most states have laws regulating
a lot of the rights and duties between landlords and tenants. And, like most
issues of property rights, Landlord Tenant law is subject to being controlled
by written agreements between the parties – by Contract.
Owners, occupiers and users of land can
also have liabilities to “outsiders.” Most often, this is handled through Tort
law, but sometime it is a matter of contract rights.
Because people in the U.S. can have absolute ownership of land, a system is
needed for determining who owns what. Transfer of interest in land is required
to be done “in writing” and, to be effective “against the world” the transfer
document must be signed under oath and Recorded in the office of the
proper official. With the exception of the state of Louisiana, all of our states are subdivided into Counties (small
oblasts!), and each County has a Clerk or Recorder who is charged with keeping
land records. Those records are open to the public, and specialists check
ownership by reviewing those records and writing letters of opinion as to title
(or by issuing insurance policies guaranteeing title at the time of a
transfer). Transfer may be by Bargain (by a contract), Devise (by a written Will),
Gift (but written document required), Inheritance (based upon a statutorily
described relationship), or by Adverse Possession (another person comes onto, and occupies your land – openly, notoriously, and
hostilely – for a statutorily proscribed length of time, thereby gaining a
superior right of possession which defeats your actual rights of ownership
(possession beats ownership).
Financing of land purchases and additions
is most commonly done by Mortgages; since a Mortgage is an interest in
land, it must also be recorded to be valid as against those without knowledge
of the existence of the mortgage.
Mortgage: “An interest in land or real property created by a
written instrument providing security for the performance of a duty or the
payment of a debt.” Our jurisdictions are divided over the question of whether
the mortgage is merely a lien, or does it create a “title” or “estate in land”
– the latter being an ancient term of legal art.
Two other words of meaning in Property Law
are Laches and Estoppel; but the latter will await discussion
under the section on Remedies, while the former (which also exists in Tort Law)
will be discussed under the law of Contracts. What I have tried to do here is
merely get you aware of some of the terms and thoughts contained in the
complicated field of Property law so you might be aware of those type of issue
which your laws will have to deal with as private property rights are
К содержанию номера журнала: Вестник КАСУ №3 - 2005