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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 is his.

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 it. 

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 “owners.”

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 ways.

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 property. 

If you damage my property, we need Tort Law.

If I want to sell the land to you, we need Contract Law.

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 questions:

(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 Court.

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 the property.

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 developed.



К содержанию номера журнала: Вестник КАСУ №3 - 2005


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