In law, the term ‘property, is sometimes used in a very wide sense. In Griffith vs. Charlotte, the term ‘property’ was defined as the interest, which can be acquired in external objects or things. The things themselves are not in true sense property, but they constitute its foundation and material and the ideal of property springs out of the connection or control or interest, which according to law may be acquired in them or over them. This interest may be absolute when a thing is objectively and lawfully appropriated by one to his personal use to the exclusion of all others. It is limited or qualified when the control acquired falls short of absolute”. It implies that two major concepts can be viewed from property, namely: (i) instinct to own or possess to the exclusion of others backed with legal power and (ii) the object to be possessed. Possession will however include different kinds of rights. It is concerned with all proprietary in rem. It is used to include all people’s rights in respect of his life, liberty and estate; the use of the term in now obsolete. It consists of all of a person’s proprietary rights as distinct from his personal rights. This is the sense in which the term is commonly used in law at the present day. For instance, it includes such property as the person’s house, furniture, car and also debts due to him but not his rights in respect of freedom of movement or of reputation. It may also be interpreted as including proprietary rights in rem, but not proprietary rights in personam. This is what is commonly called the law of property as distinct from the law of obligations. A lease, for instance, is property in this sense, but not the right to recover debt. In the narrowest sense, the term is used to refer only to rights in material objects. Thus a person’s rights in respect of his house, furniture, etc., but not his rights in respect of copy rights, trade marks, etc.
People also refer to their belongings including landed property as their property. However the term ‘property’ may be described as the exclusive right to possess, enjoy and dispose a thing or as the exclusive right to control an economic good. In its legal sense, property has been defined as any personal belonging which has title and can be conveyed or re-conveyed at law with the distinguishing features of immobility. Before an item can be said to be a property, it must be capable of being owned, enjoyed used and disposed (being a valuable good) by the owner to the exclusion of others. So also a property is a ‘good’ otherwise the good becomes bad and is not wanted by anybody. There are therefore many rights which encompassed property and which must be strictly looked upon before property can be said to be existing. Let us consider the air, inasmuch as it is not a personal property, it is being enjoyed by all and sundry. But the bottled oxygen on which ownership can be laid and which is valuable for patients’ treatment can be owned and become subject of property. In the sense of “ownership”, Ely (1914) defined ‘property’ as “the exclusive right to control an economic good”. Thus, property is an abstract concept which is the subject of ownership. It is interchangeably used with estate even. Many people think of it in terms of objects that can be owned or possessed (Olusegun, 2003)
Furthermore, Barlowe (1958) opined that property is a complicated concept. ‘Property’, according to Ratcliff (1979), refers to “land and buildings” in the case of real property while ‘personal property’ refers to the “various movable articles”. Ifediora (1993) summed up property to include tangible, intangible and rights, ownership, monetary value and legal assertion. He therefore defined property as the corporeal, incorporeal, tangible and intangible things, capable of pecuniary and legal assertion, over which ownership gives control”. Furthermore, he highlighted the fact that property, when used in connection with value and valuation, is closely associated with the idea of ownership. Valuation is defined as the determination of the monetary value, at some specific date, of the property rights encompassed in an ownership. These rights are defined and protected by law. Therefore, it is the exercise of these rights or ownership that animates property to attain its value potential or usefulness.
Property can be broadly divided into two types:
- Corporeal: i.e. Tangible things that can be seen and touched e.g. building, furniture etc.
- Incorporeale. Intangible things that can only bring benefits but which can neither be seen nor touched e.g. patents and copy rights or mortgage.
Property consists of rights in respect of one’s own property such as material and immaterial things and rights in respect of another property such as encumbrances. Rights in respect of property of others are incorporeal property.
The most common relationship a person has with a thing is that he owns it and thus has complete possession of it; he/she has general rights in such properties. A person’s right in his own property is limited by the duties, which he owes to other people.
A person may also voluntarily and by agreement give up either temporarily or permanently, some of the rights which general ownership confers upon him. For instance, he may lease, or mortgage his land or grant a right of way over it.
Ownership of a thing is permanent or at least indeterminable – a right to the temporary use of property cannot confer ownership. Even though ownership may last for only a short duration of time, the most important thing is that he must be able to keep them for as long as he wishes. The right of ownership is inheritable. The right of ownership can be described as a right in definition point of duration, over a determinate thing. In English law, all lands belong to the Crown and the best right other persons can have is what is known as fee simple. However, in practice, the owner of the fee simple is the land owner.
Material property is divided into movable and immovable. The best example of immovable property is land, which in law includes all objects placed on or under the surface of the land with the intention of permanent annexation rather than physical attachment. Movable properties are all other properties that are capable of movement from one place to another. They are otherwise known as chattels.
In law, the concepts of movable and immovable things are not limited to material things; it equally applies to rights. The general rule of English law is that a right has the same quality as its subject matter. Therefore with some exceptions, all rights over movable things are themselves movable. The exceptions are rights in respects of those properties, which cannot be said to be attached to any movable or immovable things e.g. copy rights and trademarks. The English Law insists that rights must exist somewhere hence geographical locality is attributed to rights. The general rule especially with regards to rights, which are not associated with either movable or immovable things, is that a right exists where it can be exercised.
The distinction between land and chattel is very similar to that between real and personal property. Real property is the same as land with limited exceptions which the law historically established. All property other than real property is personal property. Leaseholds are treated as land when treated as part of land law but as personal property within the division between real and personal property.
An immaterial thing is anything than material thing which may be the subject matter of alright. Some property such as cheque and banknotes are to some extent material and immaterial. They do have a double aspect, giving proprietary right in rem (as pieces of paper) and proprietary rights in personam (in respect of the things which they will purchase). An important category of immaterial property in termed intellectual property. Thus, the product of a man’s brain is as much his property as the product of his skill and labour. For example, where a composer writes a symphony, it is in the legal sense of the word his property and reserves the rights that it should not be performed without his authority.
Class of intellectual property
- Patents: Applicable to new inventions. The invention can only be used under licence in return for a payment of royalty to the inventor.
- Literary copyrights: Applicable to written literatures e.g. books. The writer may assign the copyrights to a publisher for a lump sum, or collect royalty on sales.
- Artistic copyrights: This applies to drawings, painting, photographs sculptures etc. the creative skill is what is protected and not the specific drawing or painting.
- Others – Goodwill, trademarks and trade names: A businessman has a proprietary right to his good will. Trademark and trade names are in the same category as goodwill, they are all protected by law.
Encumbrances or rights in re aliena are rights, which a person has in other people’s property. They are of four main types; namely, leases, servitudes, securities and trusts.
- Leases: A lease is the right to the use or possession of property owned by another. It is mostly concerned with land and sometimes called tenancy. It may be used to refer to temporary handing over of chattels (bailment) over to another. A lease is different from licence in the sense that apart from having right of use, a lease grants right to possession whereas a licence grant only the right to use. A lease separates ownership from possession. The possession of property by the leaseholder is an encumbrance on the owner’s title. The subject matter of a lease is almost always a material object; usually land. It is however also possible to lease any other right which can be possessed. Conversely may be a subject matter of sub –lease just as copyright can be leased. Leases unlike ownership are limited in time or determinate. It is however possible for a lease to form the period of ownership of a particular ownership (i.e. indeterminate). A lease can be sub-leased for the same period but as a general rule a sub-lease must be shorter than the original lease by at least one day. A lease may be granted in perpetuity. It must however be noted that such things as copyrights and patent always have only a limited life.
- Servitude: This is a right to the limited use of land without possession of it. They are rights in respect of land only. Examples are rights of way, right to the passage of light and right to support of foundation of adjoining building. Servitude may be private (i.e. granted to a particular person or persons) or public (i.e. granted to indeterminate group of individuals or general public). It may also be divided into appurtenant or in gross. It is said to be appurtenant when it involves other land (i.e. dominant land or tenement and servient land (tenement). It is said to be gross when they do not involve dominant and servient prices of land e.g. a public right of way. A distinction must be here between easement and profit. Easement applies to private or appurtenant servitude without any right to take any profit from the servient land. A right of way or to lights is easement whereas right to pasture cattle is a profit.
- Security: The purpose of security is to ensure the fulfilment of another right usually a debt vested in the same person. The main purpose is to provide some collateral for a debt. A security may take the form of a mortgage or lien. A mortgage is a security created by the temporary transfer of some property of the debtor to the creditor or by way of encumbrance. A lien on the other hand is always only an encumbrance created in favour of the creditor over property which remains the property of the debtor e.g. the creditor may have the right to retain possession or a chattel link payment is made for it. Mortgage is capable of continuing existence even when the debt has been repaid whereas lien is automatically terminated when the debt is repaid. The mortgage remains in existence until such time the property is re-transferred to the mortgagor. The mortgagor’s right to re-assignment is known as ‘Equity of Redemption’.
When a debtor transfers his rights to property to the creditor, in whatever way, a mortgage is created. But if a debtor encumbers his right in favour of the creditor, the result may either be a mortgage or a lien. It is a mortgage, if the encumbrance is independent of the debt, but a lien if the period of the loan and encumbrance is coincidental. Mortgage is not limited to land and houses, any right which is capable of transfer can be mortgaged, e.g. life policy. It is also possible to create a sub-mortgaged from an original mortgage. During the period of mortgage, the mortgagor remains the equitable or beneficial owner and the property must be re-assigned to him as soon as the debt is paid. A distinction between mortgage and security is a peculiarity of English law; other systems make no distinction as all transfer are treated as lien.
- Possessory: Creditor’s power to retain possession until debt is paid e.g. the right of a broker to retain a policy of marine until premium has been paid by the assured.
- Right and Distress or Seizure: Right of detention (e.g. trespassing cattle) until compensation is paid by the owner.
- Power of sale: Right to sell property in some cases if debt is not paid e.g. pawnbrokers have right to sell pledges if they have not been redeemed.
- Power of forfeiture: Creditor power to keep property of debtor i.e. right to keep deposit e.g. land sale.
- Charges: Right over general or specific property of debtor e.g. when issues debentures (which is one a form of loan); the right to repayment or the loan many be secured by a change on specific property belonging to the company or on the company property generally. If debentures are not repaid in due course, the property which is charged may be resold for the benefit of the debenture holders.
Property could be acquired in many ways, the commonest of which are possession, prescription, agreement and inheritance.
- Possession: Subject to some exceptions, the general rule is that a person who in fact has possession of property, has, in law ownership of it. One of such exceptions is where a person is in possession of land under terms of lease where ownership remains in the lessor.
- Prescription: Prescription is the acquisition or loses of title or right to property by lapse of time. Prescription can be positive or negative. Positive prescription is the creation of rights by lapse of time, while negative prescription refers to distinctions of rights by lapse of time. The two are correlative; that is for every positive prescription, there is a correlative negative prescription.
Prescription is accepted as a source of ownership based on the principle and accepted belief that ownership goes hand in hand with possession in fact, hence should be same in law. Negative prescription may be either perfect or imperfect. It is perfect where the right is actually destroyed and imperfect where only right of action is affected. In theory, acquisition by means of prescription is considered unjustifiable but considered justifiable in practice.
Agreement is about the best means of property acquisition. It is considered as a proper title of rights. With regards to real property (proprietary rights in rem) there are two types of agreements, viz: Assignment and Grant
- Agreement: is the transfer of an existing right from one person to another, e.g. where one person agrees to sell his building to another person.
- Grant: on the other hand is the creation of a new right e.g. where the owner of a land grants a lease. A lease does not transfer ownership of land, it merely creates an encumbrance.
A person cannot give a better title than he possesses. In other words, he can only transfer such rights which he has. This is the general rule subject to the following exceptions.
- Where legal ownership is separated from equitable ownership e.g. Trustee and Beneficiary.
- Where ownership and possession are separated. The equitable doctrine of purchase for value without notice makes it impossible for a beneficiary to sue innocent purchaser for value for the return of a trust property sold. The law often presumes that a purchaser in good faith from a possessor can assume that the possessor is the owner.
The above cases emphasize the fact that it is not possible to do justice in all cases. In effect, recourse must be made to compromise, which is never a satisfactory measure.
Rights are either by inheritance or otherwise. All proprietary rights are by inheritance except for some personal rights such as rights or power to bring an action for defamation. The inheritance rights passes to the legal personal representatives who may either be Executor (if there is a valid will) or administrator (if there is no will). The legal personal representatives are in charge of both assets and liabilities of a deceased person.
Where there is a will, distribution of property is done in accordance with the will subject to statutory limitations and exceptions including the following:
- Terms of a will must both breach the rule against perpetuity, i.e. there is a limit of time during which instruction in a will are enforced.
- There is a limit to amount of estate a person can leave as he pleases.
- All property must be left for the benefit of some person(s). This invalidates a will.
References
Barlowe, R. (1958). Land resource economics: The economics of real property. Englewood Cliffs N.J., Britain: Prentice-Hall Inc.
Ifediora, G.S.A. (1993). Appraisal framework. Enugu, Nigeria: Iwuba Ifediora & Associates.
Olusegun, K. (2003). Principles and practice of property valuation (Vol. 1: General principles). Lagos: Climax Communications.
