Property Law


Real Property Law

Personal Property Law

Modern property rights conceive of ownership and possession as belonging to legal individuals, even if the legal individual is not a real person. Thus, corporations, governments and other collective forms of ownership are framed in terms of individual ownership. Exceptions to this pattern include the " commons ", which belong to a defined community, and the " public domain ", to which access is unlimited. Property rights are found in the oldest laws written down, and equate the expectation of use or profit to some payment from the very beginning. Modern property rights can be said to begin with the transition from ownership by entities as being the primary form of property right, to the theory that property rights are to promote the general good, and specifically encourage economic development and utilization of property.

Property is usually thought of in terms of a bundle of rights as defined and protected by the local sovereignty which itself, by definition, has "exclusive right to exercise supreme authority" concerning that property. If ownership gave supreme authority it would be sovereignty not ownership. They are two different concepts. In other words, "I own this so I can do what I want with it" is not how the concepts of ownership or property work.

Traditionally, that bundle of rights includes:

1. control use of the property

2. benefit from the property (examples: mining rights and rent)

3. transfer or sell the property

4. exclude others from the property.

Legal systems have evolved to cover the transactions and disputes which arise over the possession, use, transfer and disposal of property, most particularly involving contracts . Positive law defines such rights, and a judiciary is used to adjudicate and to enforce.

In his classic text, "The Common Law", Oliver Wendell Holmes describes property as having two fundamental aspects. The first is possession, which can be defined as control over a resource based on the practical inability of another to contradict the ends of the possessor. The second is title, which is the expectation that others will recognize rights to control resource, even when it is not in possession. He elaborates the differences between these two concepts, and proposes a history of how they came to be attached to individuals, as opposed to families or entities such as the church.

According to Adam Smith , the expectation of profit from "improving one's stock of capital" rests on private property rights, and the belief that property rights encourage the property holders to develop the property, generate wealth , and efficiently allocate resources based on the operation of the market is central to capitalism . From this evolved the modern conception of property as a right which is enforced by positive law, in the expectation that this would produce more wealth and better standards of living.

Socialism 's fundamental principles are centered on a critique of this concept, stating, among other things, that the cost of defending property is higher than the returns from private property ownership, and that even when property rights encourage the property-holder to develop his property, generate wealth, etc., he will only do so for his own benefit, which may not coincide with the benefit of other people or society at large (and which often goes directly against the interests of non-property-holders). This is still a modern theory of property, however, in that it argues based on superior utility of result.

Communism argues that only collective ownership through a polity, though not necessarily a state, will assure the minimization of unequal or unjust outcomes and the maximization of benefits, and that therefore all, or almost all, private property should be abolished.

Both communism and (sometimes) socialism have also upheld the notion that private property is inherently illegitimate. This argument is centered mainly on the fact that the creation of property involves the use of natural resources, therefore private property in general necessarily involves private property over land. If private property over land is illegitimate (for example, due to the fact that it was first instituted by force), then it follows that private property in general is illegitimate.

Not every person , or entity , with an interest in a given piece of property may be able to exercise all of the rights mentioned a few paragraphs above. For example, as a lessee of a particular piece of property, you may not sell the property, because the tenant is only in possession, and does not have title to transfer. Similarly, while you are a lessee the owner cannot use his or her right to exclude to keep you from the property. (Or, if he or she does you may perhaps be entitled to stop paying rent or perhaps sue to regain access.)

Further, property may be held in a number of forms, e.g. joint ownership , community property , sole ownership , lease , etc. These different types of ownership may complicate an owner's ability to exercise his or her rights unilaterally. For example if two people own a single piece of land as joint tenants, then depending on the law in the jurisdiction , each may have limited recourse for the actions of the other. For example, one of the owners might sell his or her interest in the property to a stranger that the other owner does not particularly like.

This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Property"