Terms of Personal Property and Real Property

The aim of this question is to test whether students grasp the fundamental differences between real and personal property. In their introduction, students should explain what is meant by the terms real property and personal property. Students should also define what is meant by the term ‘land’ to indicate that it includes not just physical territory. As part of their answer, students must therefore deal with corporeal and incorporeal hereditaments in real property. Finally, students should clearly set out the source and background of the differences between real and personal property.

Students will perform well where they offer detailed and clear explanations of all of the terms mentioned. Introduction The law of real property or the realty of land law, in the words of Wylie is “concerned with rights and liabilities which arise under our law with respect to land”. Land, however, is not just physical territory; the term includes things permanently attached to land, such as houses, buildings and other structures such as garden walls or fences. Personal property or personalty covers all of the other forms of property.

Real property is, as mentioned, concerned with more than land, including buildings, as we understand the term. To put it another way, real property includes both corporeal and incorporeal hereditaments. Corporeal Hereditaments Corporeal hereditaments are objects which have a physical existence or which, in the words of Blackstone, “affect the senses”. They include: (a) land itself; (b) buildings and other structures, the foundations of which are in land; (c) parts of a building which are not grounded in land such as an upper storey flat in an apartment block.

It is well established in English law, at least, that land is capable of horizontal as well as vertical division. In England, the title to such apartments or offices is known as a strata title; (d) fixtures comprising material objects which, when attached to land, are regarded as being annexed to realty. It can be notoriously difficult at times to differentiate between a fixture which is part of real property and a chattel which is personal property. It depends as Gray states “on the degree of physical attachment between the object and the pre-existing realty”;

(e) trees, plants and flowers whether cultivated or wild as long as they are growing on the realty; (f) minerals and other inorganic substances are, in theory, part of realty, though in Ireland, the rights to most minerals, including petroleum, have been vested in the Irish State under Article 10 of the Irish Constitution. Incorporeal Hereditaments Incorporeal hereditaments are not physical objects but mere rights usually over someone else’s land, but which do not grant any right to possession of that land.

These include: (a) easements, usually a right of way, a right to light or a right to support for a building; (b) profits, including rights to pasturage (the right to graze animals on someone else’s land), turbary (the right to go on to someone else’s land to save turf and take it away for fuel), quarrying, fishing and timber rights. The Distinction between Real and Personal Property As with many other aspects of property law, the distinction between real and personal property is due to historical developments.

In the early history of the common law, there were different forms of action for different types of cases and these forms of action determined the kinds of remedies that litigants could seek before a court for a grievance that they had. Indeed, taking a case in the first place depended on being able to conform to the correct type of ‘form of action’. Real property is attributed with this name because the appropriate form of action for a person who had been dispossessed of his freehold land was an action in rem. In such an action, the plaintiff could insist on the actual recovery on the ‘thing’ (res) of which he had been deprived.

The term action in rem is derived from Roman law and means an action in recovery for the res lost. In actions for the recovery of things other than freehold land, the form of action available was a personal action, an action in personam. This means that it was an action against a particular person. In this instance, the plaintiff could not insist on recovery of the actual thing lost, because the defendant could elect to pay damages. Therefore, property in respect of which an action in personam lay became know as personal property.