Property in civil law

Historically, property has always been divided into two categories – real property and personal property. Discuss In England the Crown technically owns all the land since the Norman Conquest of 1066 as a result of his victory, William declared himself King and owner of all land. To this day all land belongs ultimately to the Crown. Thus, if a person dies without leaving a will and with no relatives to inherit, his property goes back bona vacantia – to the Crown. Real and personal property are distinguished due to historical reasons of English law.

Most law books put the evolution of land law down to three things. First of all, land after the Norman Conquest was subject to feudal tenure and thus held from or through the Crown. Secondly, interests in land were protected at law by the so-called re actions, which meant that the land itself could be recovered if the owner were wrongfully dispossessed Thirdly, the rules relating to descent on death differed for land and personalty. Land went usually the eldest son who was the heir at law, but the personal estate went to the next of kin under the Statute of Distributions 1670

The distinction between real and personal property is significant in numerous situations, such as where a testator by will leaves his realty to X and his personality to Y or where the purchase price paid for land will include fixtures but does not include personal property. In his book Personal Property Law, 2nd edition, Blackstone Press, 1996, Michael Bridge defines that 'personal property (or personalty) is all the property that is left once land, that is real property (or realty) has been subtracted', and indeed land is, for the most part, real property, as distinct from personal property.

This distinction arose from the different forms of action which could be brought in order to recover various types of property. Personal property is property that is subject to an action by the individual rather than against the property itself. The property that is the focus of the action must be property other than land; therefore it must be a tangible thing or 'chose in possession' for example cars, books, paintings, clothes or furniture. Personal property could not always be recovered, in which case the true owner would have to be satisfied with payment of its value by compensation.

Therefore the real purpose of this action is to take back the personal property or pay damages. In the common law systems personal property may also be called chattels. In the civil law systems personal property is often called movable property or movables, any property that can be moved from one location or another. In the common law it is possible to place a mortgage upon real property. Such mortage requires payment or the owner of the mortgage can seek foreclosure. Personal property can often be secured with similar kind of device called a security interest.

Real property is a term given to property that was the subject matter of a real action in the common law courts. It is also known as freehold land and can be split further into corporeal hereditaments and incorporeal hereditaments. Corporeal hereditaments are things that can be inherited and are of physical possession. Incorporeal hereditaments can also be inherited but unlike corporeal hereditaments cannot be possessed. Real property is generally a term used in common law jurisdictions as opposed to immovable property in civil law.

An important area of real property are the definitions of estates in land. There are various interests that limit the ownership rights over land. The most common type of estate is the fee simple which signifies that the owner has the right to dispose of the property as he sees fit. Other estates include the life estate and fee tail. Real property is mainly land, but the words 'realty' and 'land' are used as if they were the same thing, which is not true. This is because some interests, whilst they may be interests in land, are not 'real' property.

An example of this is shown in leaseholds. They are personal and not realty. This is because until 1500 a tenant who was ousted from 'his land' could only recover damages in an action in personam, because leases were considered to be no more than a form of commercial contract. However, after 1500 an ousted tenant could recover the land itself in a 'real' action – an action in rem – that is, an action against the land itself. Unfortunately, whether a right is real or personal is not always clear-cut. Discuss and compare the two legal estates in land.

For many years there has been a controversy over the nature of equitable interests, especially the interest of the beneficiaries under a trust. It is thought that there was an overhaul of the area of property law in 1925 with a number of acts being passed. They included the Law of Property Act 1925, the Trustee Act 1925 and the Settled Land Act 1925. The new legislations aim was to reduce the number of legal estates in land and abandon outdated rules. An estate in land is the right of any landowner to enjoy the land for a particular period of time. Before the Law of Property Act 1925 there were a number of legal estates in land.

They included the 'fee simple' 'fee tail' and 'life estate'. Section 1(1) of the 1925 act reduces the number of legal estates to two and states that the only legal estates that can legally exist are the 'fee simple absolute in possession' and the 'term of years absolute'. Firstly the fee simple absolute in possession estate is also known as the freehold estate and secondly the estate for a term of years absolute is also known as the leasehold estate. The fee simple absolute in possession can defined as fee simple meaning ownership rights of the property can be inherited on death.

Absolute meaning that there are no limits on the ownership and in possession meaning the owner has occupation of the land and is free to enjoy the land. The word absolute is used to distinguish a fee simple from a modified fee. A modified fee has three main species, they are; a determinable fee that ends automatically when something happens, a fee simple on condition subsequent that is based on a condition and if that condition is broken then the fee simple will cease and a fee simple on condition precedent will start when a certain event occurs.