Introduction to the nature of Property

Question 1

What is property?

Answer 1

Property can be either an object or thing which is capable of bring owned by a person or the proprietary rights (rights of ownership) to that thing.

Question 2

What is real property?

Answer 2

Real property comprises land, and all things embedded in the land or attached to it such as minerals, trees and buildings. All real property rights are to land.

Question 3

What is personal property?

Answer 3

Personal property is all property that is not real property.

Question 4

What are the two classes of personal property?

Answer 4

The two classes of personal property are:

1. chattels real
2. chattels personal

Question 5

What are chattels real?

Answer 5

Chattels real comprise leasehold interests.

Question 6

Chat are the subcategories of chattels personal?

Answer 6

1. Choses in possession

2. Choses in action

Question 7

What are choses in possession?

Answer 7

Choses in possession are things that are moveable capable of actual physical possession and transfer by delivery.

Question 8

What are choses inaction?

Answer 8

A chose in action is a personal property right to an intangible thing which is not capable of actual physical possession but only enforcable by taking legal action such as to compel the payment of a debt, insurance policies, debentures or intellectual property.

Question 9

What is owenership?

Answer 9

Ownership denotes the “bundle” of rights assocaitated with the relationship of a person with a thing and which are exercisable against the whole world.

Question 10

What is possession?

Answer 10

A person has possession of an object at law if he or she has control of it and intends to retain that control.

Question 11

What are the two holding rights of co-ownership?

Answer 11

1. Joint tenants

2. Tenants in common

Question 12

What are joint tenants?

Answer 12

IN a joint tenancy, each joint tenant own and equal, undivided interest in the whole of the property.

Question 13

What is the most important element of a joint tenancy?

Answer 13

The most important element of a joint tenancy is the right of survivorship.
The right of survivorship means that on the death of one joint tenant their concurrent interest automatically passes to the surviving joint tenant or tenants.

Question 14

What is a tenancy in common?

Answer 14

A tenancy in common is a form of co-ownership where two or more persons own distinct shares in the property although each is equally entitled to possession of the property.
The most important difference between a tenancy in common and a joint tenancy is that there is no right of survirship for a tenancy in common. (the interests of the tenant in common do not teminate in their death and pass to the surviving tenants in common.)

Question 15

What are the 5 different forms of possession?

Answer 15

1. Custody
2. Actual or defacto possession
3. Legal possession
4. Constructive possession
5. The right to possession

Question 16

What is custody as a form of possession?

Answer 16

Custody is not a true form of possession but exists where there is a physical holding of goods such as an employee using the goods in the course of employment or a bank holding the contents of a safety deposit box.

Question 17

What is actual or de facto possession?

Answer 17

Actual or defacto possession is the most common form of possession and comprises physical control of a chattel and an intention to exclude others.

Question 18

What is legal possession?

Answer 18

Legal possession is the state of being a possessor in the eye of the law. Legal possession may be actual or defacto but can also exist outside of these.

Question 19

What is constructive possession?

Answer 19

Constructive possession is said to arise where constructive delivery of goods is accepted as having been made without any change in the actual possession of the thing delivered. Constructive possession may arise where a buyer has taken symbolic delivery as opposed to physical possession of goods.
Example, A yacht when the keys and possession have been handed over.

Question 20

What is the right to possession?

Answer 20

A right to possession includes the legal right to acquire the physical or de facto possession of the goods if (for example) the rightful possessor has been wrongfully dispossessed.

Question 21

What is possessory title?

Answer 21

When the courts refer to possession as conferring a “possessory title.”

Question 22

What are the legal effects of possession?

Answer 22

1. Possession of goods is presumptive evidence of their ownership in the absence of evidence to the contrary.
2. possession is an essential factor in determining the rights of the finder of lost property
3. interference with the possession of goods gives rise to the remedies of trespass, detinue and conversion
4. certain interests in goods depend upon the possession of the goods

Question 23

How can ownership of personal property be aquired?

Answer 23

1. by purchase
2. by assignement
3. by gift
4. by will or descent
5. by taking possession of abandoned property

Question 24

What is acquisition by purchase?

Answer 24

When ownership is aquired by purchasing the property from the owner.

Question 25

What is aquisition by assignment?

Answer 25

An intangible personal property right that is transferred by assignement because it cannot be transferred by delivery.

Question 26

What is acquisition by gift?

Answer 26

Ownership of personal property may be acquired by gift. The person who makes the gift is the doner and the person who receives the gift is the donee.

Question 27

What is acquisition by will or intestacy?

Answer 27

Peronsal property may be left to a person by will.

Question 28

Acquisition by taking possession of abandoned property.

Answer 28

Ownership of personal property may be acquired by taking possession of, or appropriating, abandoned property with the intention of exclusing others.

Question 29

What is a Lien?

Answer 29

A lien is a right of one person to retain the possession of goods, property or securities of another until a liability is satisfied.