What is Property - property v personal rights Flashcards
What is the distinction between property and personal rights
- enforcement
key question to ask
Property rights
- enforceable against the world
Personal rights
- enforceable against another individual
-> a person you’re in contract with (contract law) or a person who committed a nuisance against you (tort law)
against whom can the right be asserted / enforced
What is the distinction between property and personal rights
- transmissibility
Property rights
- can be transferred to other people (sale / gift / inheritance)
- can be limited (tied to other property e.g. right of way (easement))
- can be restricted on transfer based on contract (e.g. leases)
Personal rights are not transmissible by default
What are the Latin names for personal and property rights
personal rights: in personam -> against a person
property rights: in rem -> against a thing
What is the distinction between property and personal rights
- relevant case law
King v David Allen 1916
question of whether the right to put up posters could be enforced against a new owner of the cinema
3 different types of things
- tangible, movable objects
- personal property / chattels e.g. car, book - tangible, immovable objects
- real property or land - intangible
- intellectual property e.g. song, invention
what type of thing does our course focus on
tangible, immovable objects
(2)
definition of land law (7 points)
the body of law concerned with the nature, creation, content, transfer, protection, destruction and enforcement of rights in land
why is land so special (6)
Who describes it like this
- permanence
- can do a lot of things with land e.g. pass it down, sell it etc. - scarcity
- marketable - uniqueness
- every piece of land is distinct
- location matters
- special attachments can be made - connectivity
- link to uniqueness
- land never exists in isolation - capacity to support multiple interests
- supports several interests and so can increase in value
- BUT what about when a clash of these interests occurs? e.g. priority disputes - social and economic importance
McFarlane, ‘The Structure of Property Law’
where do we find the definition of land
s.205 (1) (ix) LPA 1925
Can property rights always be created by the parties
no - people may not always want to or be able to
3 reasons why property rights are less frequent
- Formalities -> document must be signed / interest must be registered -> time consuming - may require assistance of a lawyer
- Personal choice -> may want to avoid transmissibility of right
- “The law will not allow it” -> Hill v Tupper -> the numerus clausus principle -> restricting list of permissible property rights
