property law

Definition of property law

Noun

property law (uncountable)

1. (law) the area of law concerned with the ownership and conveyance of property rights
2. The formal course in property law required of most first-year law school students

Further reading

Property law is the area of law that governs the various form of ownership in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights and obligations thereon.

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,[1] and in more feudalist forms in the common law courts of medieval and early modern England.

Definition

In Roman law, property was defined as follows: ius utendi et abutendi re sua, quatenus iuris ratio patitur, 'the right to use and abuse a thing, within the limits of the law' (Justinian, Code 4, 35, 21; see also, commentary by P.J. Proudhon in ch. 2 of What is Property? [1]).

One modern textbook on property law states:

When a layman is asked to define "property," he is likely to say that "property" is something tangible "owned" by a natural person (or persons), a corporation, or a unit of government. But such a response is inaccurate from a lawyer's viewpoint for at least two reasons: (1) it confuses "property" with the various subjects of "property," and (2) it fails to recognize that even the subjects of property may be intangible.

For a lawyer, "property" is not a "thing" at all, although "things" are the subject of property. Rather, as Jeremy Bentham asserted, property is a legally protected "expectation * * * of being able to draw such or such an advantage from the thing" in question [ . . . .][2]

Black's Law Dictionary (5th ed. 1979) states that "[i]n the strict legal sense, [property is] an aggregate of rights which are guaranteed and protected by the government" and that the term property "includes not only ownership and possession but also the right of use and enjoyment for lawful purposes."

By contrast, Barron's Law Dictionary (2d ed. 1984) defines property as "one's exclusive right to possess, use, and dispose of a thing" [ . . . ] "as well as the object, benefit, or prerogative which constitutes the subject matter of that right."

Property law, in systems derived from English common law, is divided into personal and real property. Gray & Gray (1998) describe the definition of property in the modern sense as oscillating between 'competing models of property as a fact, property as a right, and property as a responsibility'[3] Declared ownership in and of itself is insufficient to constitute property in a legal sense. Rather, the notion of property arises where one can have his/her right to land or chattels respected and enforced by a court of law. Therefore to possess good title (and thus enforceable rights) on property one must acquire it legitimately, according to the laws of the jurisdiction in which one seeks enforcement.

References

1. Makdisi, John (2005), Islamic Property Law: Cases and Materials for Comparative Analysis with the Common Law, Carolina Academic Press, ISBN 1594601100
2. R.A. Cunningham, W.B. Stoebuck & D.A. Whitman, The Law of Property, p. 1 (West 1984) (footnote reference omitted; italics and quotation marks in the original).
3. Edgeworth, B. et al, Property Law: Cases and Materials, 7th ed., (Butterworths, Australia, 2004): 6.