Research Paper Property

Property Law, The Inside Look
Azrielle D. Washington
July 20, 2014
LSTD506

“Property law has long played a central role in political and moral philosophy. Philosophers dealing with property have tended to follow the unanimity that property has no special content, but is a protean construct; a mere placeholder for theories aimed at questions of distributive justice and efficiency” (Joel Feinberg & Hyman Gross, Philosophy of Law (1975). Until recently there has been a relative absence of serious philosophical attention paid to the various doctrines that shape the actual law of property. If the philosophy of property is to be more attentive to concepts lying between broad considerations of political philosophy and distributive justice. In America, we are eager to claim ownership: our homes, our ideas, or organs, even our own celebrity. This paper investigates the factors that have shaped the evolution of property rights institutions. Beneath our nation’s proprietary longing looms difficult questions like; the history of property law? What is property law? Different types of personal property, real property, and what is the significance of property law?
Property Law History
Everyone seems to have an opinion about property rights, whether about one’s own rights, those of someone else, or the rights of a community. Property rights discussions can reveal diverse and controversial opinions and are often related to larger issues such as land use, regulation, planning, and the like. Since there is no universal definition of property rights, considering different perspectives and the historical background can be helpful in understanding property rights issues. Property rights come from culture and community. One person living in isolation does not need to worry about property rights. However, when a number of people come together, they need to define and enforce the rules of access to and the benefits from property.
What is Property Law? There are two types of property: real property and personal property. Most of the legal concepts and rules associated with both types of property are derived from English Common Law. Modern law has incorporated many of these concepts and rules into statutes, which define the types and rights of ownership in real and personal property. “Personal property, also referred to as movable property, is anything other than land that can be the subject of ownership, including stocks, money, notes, patents, and copyrights, as well as intangible property” (JE Penner, The Idea of Property in Law, (1997). Real property is land and ordinarily anything erected on, growing on, or affixed to it, including buildings and crops. The term is also used to declare any rights that issue from the ownership of land. “The terms real estate and real property generally refer to land” (Claire Priest, Creating an American Property Law: Alienability and its Limits in American History, Harv. Law Rev. 385 (2006). “The term land, in its general usage, includes not only the face of the earth but everything of a permanent nature over or under it, including minerals, oil, and gases” (Henry E. Smith, Mind the Gap: The Indirect Relation between Ends and Means in American Property Law, 94 Cornell L.Rev. 959 (2008). “In modern usage, the word premises has come to mean the land itself or the land with all structures attached. Residential buildings and yards are commonly referred to as premises” (Henry E. Smith, Mind the Gap: The Indirect Relation between Ends and Means in American Property Law, 94 Cornell L.Rev. 959 (2008). The difference between real property and personal property is ordinarily easily recognizable. The character of the property, however, can be altered. Property that is initially personal in nature becomes part of realty by being annexed to it, such as when rails are made into a fence on land.
Personal Property Personal property can be divided into two major categories: tangible and intangible. Tangible property includes such items as animals, merchandise, and jewelry. Intangible property includes such rights as stock, bonds, patents, and copyrights. Possession is a property interest under which an individual to the exclusion of all others is able to exercise power over something. It is a basic property right that entitles the possessor to continue peaceful possession against everyone else except someone with a superior right. It also gives the possessor the right to recover personal property (often called chattel) that has been wrongfully taken and the right to recover damages against wrongdoers. “To have possession, an individual must have a degree of actual control over the object, coupled with an intent to possess the object and exclude others from possessing it. The law recognizes two types of possession: actual and constructive” (John G. Sprankling, Understanding Property Law (2012).
Actual possession exists when an individual knowingly has direct physical control over an object at a given time. For example, an individual wearing a particular piece of jewelry has actual possession of it. Constructive possession is the power and intent of an individual to control a particular item, even though it is not physically in that person 's control. For example, an individual who has the key to a bank safe-deposit box, which contains a piece of jewelry that she owns, is said to be in constructive possession of the jewelry (John G. Sprankling, Understanding Property Law (2012).
Lost, Mislaid, and Abandoned Property Personal property is considered to be lost if the owner has involuntarily parted with it and does not know its location. Mislaid property is that which an owner intentionally places somewhere with the idea that he will eventually be able to find it again but subsequently forgets where it has been placed. Abandoned property is property to which the owner has intentionally relinquished all rights. Lost or mislaid property continues to be owned by the person who lost or mislaid it. When a person finds lost goods, the finder is entitled to possession against everyone with the exception of the true owner. The finder of lost articles on land belonging to someone else is entitled to possession against everyone but the true owner. However, if the finder of the misplaced goods is guilty of Trespass, she has no right to possess the goods. The owner of the place where an article is mislaid has a right to the article against everyone else but the true owner. Abandoned property can be possessed and owned by the first person who exercises control over it with an intent to claim it as his own. In any event, between the finder of a lost, mislaid, or abandoned article and the owner of the place where it is found, the law applies whatever rule will most likely result in the return of the article to its rightful owner. Ordinarily when articles are found by an employee during and within the scope of her employment, they are awarded to the employer rather than to the employee who found them (John G. Sprankling, Understanding Property Law (2012).
Treasure trove is any gold or silver in coin, plate, or bullion that is hidden by an unknown owner in the earth or other private place for an extended period. The property is not considered treasure trove unless the identity of the owner cannot be determined. Under early common law, the finder of a treasure trove took title to it against everyone but the true owner. The U.S. law governing treasure trove has been merged, for the most part, into the law governing lost property. In the absence of a contrary statutory provision, the title to treasure trove belongs to the finder against all others with the exception of the true owner. If there is a controversy as to ownership between the true owner and the state, the owner is entitled to the treasure trove (John G. Sprankling, Understanding Property Law (2012).
Confusion and Accession Confusion and Accession govern the acquisition of, or loss of a title to, personal property by virtue of its being blended with, altered by, improved by, or commingled with the property of others. In confusion, the personal property of several different owners is commingled so that it cannot be separated and returned to its rightful owner, but the property retains its original characteristics. Any fungible (interchangeable) goods, such as grain or produce, can be the subject of confusion. In accession, the personal property of one owner is physically integrated with the property of another so that it becomes a constituent part of it, losing any separate identity. Accession can make the personal property of one owner become substantially more valuable chattel as a result of the work of another person. This occurs when the personal property becomes an entirely new chattel, such as when grapes are made into wine or timber is made into furniture. Subject to the doctrine of accession, personal property can become real property through its transformation into a fixture. A fixture is a movable item that was originally personal property, but has become attached to, and associated with, the land and therefore is considered a part of the real property. For example, a chandelier mounted on the ceiling of a house becomes a fixture (John G. Sprankling, Understanding Property Law (2012).
A Bailment is the rightful temporary possession of goods by an individual other than the true owner. The individual who entrusts his property into the hands of another is called the bailor. The person who holds the property is called the bailee. Ordinarily, a bailment is made for a designated purpose upon which the parties have agreed. For example, when a person pawns a diamond ring, she is the bailor and the pawnshop operator is the bailee. The pawnshop owner holds the ring for an agreed period as security on the loan to the bailor. The bailor is entitled to recover possession of the ring by paying back the loan within the time period. If the bailor fails to pay back the loan in enough time, the bailee gains ownership of the ring and may sell it. A bailment differs from a sale, which is an intentional transfer of ownership of personal property in exchange for something of value, because a bailment involves only a transfer of possession or custody, not ownership (John G. Sprankling, Understanding Property Law (2012).
Bona Fide Purchasers The basic common-law principle is that an individual cannot pass better title than she has and a buyer can acquire no better title than that of the seller. Because a thief does not have a title in stolen goods, a person who purchases from the thief does not acquire title. A bona fide purchaser is an individual who has bought property for a value with no notice of any defects in the seller 's title. If a seller indicates to a buyer that she has ownership or the authority to sell a particular item, the seller is estopped (prevented) from denying such representations if the buyer resells the property to a bona fide purchaser for value without notice of the true owner 's rights. At common law, such an Estoppel did not apply when an owner brought an item for services or repairs to a dealer and the dealer wrongfully sold the chattel. The bona fide purchaser, however, was subsequently protected under such circumstances by the Uniform Commercial Code, which was adopted in all states (John G. Sprankling, Understanding Property Law (2012).
A buyer who induces a sale through fraudulent representations acquires a Voidable title from the seller. A voidable title may be vacated at the seller 's option, upon discovery of the buyer 's Fraud. The seller has the authority to transfer good title to a bona fide purchaser for value without notice of the outstanding Equity. The voidable title rule is only applicable in situations where the owner is induced to part with title, not merely with possession, as a result of fraud or deception (John G. Sprankling, Understanding Property Law (2012).
Real Property
In the United States, every state has exclusive jurisdiction over the land within its borders. Each state has the power to determine the form and effect of a transfer of real property within its borders. Modern statutes have eliminated much traditional concern over the proper conveyance of real property. In modern real estate law, real property can be conveyed by a deed, with the intention of the person conveying the property, the grantor, that the deed take effect as a conveyance. “The deed must be recorded to give notice as to who legally holds title to the property” (John G. Sprankling, Understanding Property Law (2012). To be of any value a claim to any property must be accompanied by a verifiable and legal property description. Such a description usually makes use of natural or manmade boundaries such as seacoasts, rivers, streams, the crests of ridges, lakeshores, highways, roads, and railroad tracks, and/or purpose-built artificial markers such as cairns, surveyor 's posts, fences, official government surveying marks, and so forth. Contributions of real property represent one of the most complicated yet rewarding opportunities in charitable gift planning. This discussion reviews various types of real property, how it is owned, income tax considerations regarding transfers to charity, factors limiting transfer, and its compatibility with various types of split interest gift planning vehicles (John G. Sprankling, Understanding Property Law (2012). This type of property is very important type in property law, and there are a number of laws which pertain to the handling of this type of property. Laws vary by region, with different areas having different legal standards.
What is the significance of property law?
Property laws have been important from the beginning of this nation, especially since many new citizens did not or could not own property in their countries of origin. Property rights have more advantages to the economy and society as a whole than we realize. “They silently encourage practices that are beneficial to the economy and stimulate economic progress. In addition, countries with sound property right legal enforcements-ones that enforce the protection of its citizens ' property rights-generally tend to have more successful economies” (Bruce H. Ziff, Principles of Property Law (1993).Therefore, property rights hold a high level of importance in managing a sound economy. Without these types of property rights (or more generally, legal entitlements), people have much less incentive to invest in capital, and they have much more of an incentive to loot and steal (Bruce H. Ziff, Principles of Property Law (1993). Without investment, and with the need to divert more scarce resources to protection, economic growth inevitably falters (Bruce H. Ziff, Principles of Property Law (1993). The importance of private property rights could not be clearer in terms of the historical evidence. Economics is the discipline that has devoted the most time and effort to explaining the functional significance of private property on economic system. Unfortunately, for most of the 20th century economists lost their way in recognizing the critical importance of property rights because they treated it as the background to analysis rather than the subject of analysis (Bruce H. Ziff, Principles of Property Law (1993). In the United States, where we have always benefited from private property and free enterprise, our biggest threat to continue affluence lies in the slow erosion of the respect for private property by government through taxation and regulation.
Conclusion
Property, in the legal sense, can mean real property in the form of land and buildings, or personal, movable property. The popular notion of property as something owned, encourages the idea of property rights as absolute. However, property in the legal sense is more accurately regarded as the combination of the legal rights of individuals with respect to objects, and the obligations owed them by others and guaranteed and protected by government. Property is either classified as private property owned by one or more individuals, or public property owned by government. The development of property law has generally been gradual and unspectacular. The property laws of the common-law provinces are generally similar, but one area in which the real property law does differ is in the system of recording the ownership of land. Property laws have been important from the beginning of this nation, especially since many new citizens did not or could not own property in their countries of origin. The importance of property ownership and the right to devise were clearly evident in the pervasive laws and court decisions rendered in America. Property rights is about more than just buying something and saying it is yours. You have to know why it is yours, what laws make it legally yours, what outline your rights to the property. I hope that after reading my paper and see me lay out the outline to property law, what is the different types of property, and why is property law important.

Work Cited
Peter Benson, Philosophy of Property Law, (2002).
Roger A. Cunningham et al., The Law of Property (1993).
Larry A. DiMatteo, History of Natural Law Theory: Transforming Embedded Influences into a Fuller Understanding of Modern Contract Law, the, 60 U.Pitt.L.Rev. 839 (1998).
Joel Feinberg & Hyman Gross, Philosophy of Law (1975).
Herbert Gintis, The Evolution of Private Property, 64 Journal of Economic Behavior & Organization 1 (2007).
JE Penner, The Idea of Property in Law, (1997).
Francis S. Philbrick, Changing Conceptions of Property in Law, University of Pennsylvania Law Review and American Law Register 691 (1938).
Claire Priest, Creating an American Property Law: Alienability and its Limits in American History, Harv. Law Rev. 385 (2006).
Henry E. Smith, Mind the Gap: The Indirect Relation between Ends and Means in American Property Law, 94 Cornell L.Rev. 959 (2008).

Cited: Peter Benson, Philosophy of Property Law, (2002). Roger A. Cunningham et al., The Law of Property (1993). Larry A. DiMatteo, History of Natural Law Theory: Transforming Embedded Influences into a Fuller Understanding of Modern Contract Law, the, 60 U.Pitt.L.Rev. 839 (1998). Joel Feinberg & Hyman Gross, Philosophy of Law (1975). Herbert Gintis, The Evolution of Private Property, 64 Journal of Economic Behavior & Organization 1 (2007). JE Penner, The Idea of Property in Law, (1997). Francis S. Philbrick, Changing Conceptions of Property in Law, University of Pennsylvania Law Review and American Law Register 691 (1938). Claire Priest, Creating an American Property Law: Alienability and its Limits in American History, Harv. Law Rev. 385 (2006). Henry E. Smith, Mind the Gap: The Indirect Relation between Ends and Means in American Property Law, 94 Cornell L.Rev. 959 (2008).