What is Possession in relation to Land Law?

Note: these were the very first notes I ever took in this lecture and they just give a really really brief summarization of points.

What is property?

It is the law of things and it mainly concerns itself with rights and duties, and their relation to ‘things’. This year we mainly focused as a basis on:

  • Creation and transfer of rights
  • Priority between inconsistent rights

 Definitions:

Property is about the rights to things rather than concerning itself with the things themselves.

Assignable rights (wide)

–Death rights

–Bankruptcy

–Wealth

These rights can be sold or transferred to another

 

There are two types of ‘rights’

Rights in personam:

    • can be forced against specific persons
    • and without much regard to the things themselves

Rights in rem:

    • concern specific things
    • without (much) regard for persons

 Examples:

Rights in Personam

 If I borrow £20 from you, you have the right to be paid and would have a duty to pay. There is a legal relationship of debt. = this makes it a right in personam as you don’t expect the exact same note back, but an equal value of what was owed

Rights in Rem:

If I borrow a book from you, you have a continuing right to the book and I have a duty to preserve and return it to you.The legal relationship here would be described as a bailment. = this makes it a right in rem, as you’re not giving up ownership but transferring it temporarily.

 

Personal v Property

Personal rights: Depend on the performance of a duty by a specific person

Property rights: depend on a continued existence of a specific thing

 

Rights and Duties

all rights have corresponding duties. So following the above examples with a:

  • right in personam there would be a duty to fulfil the debt owed
  • right in rem- it would be concerned with the true ownership of the book

 

Essential characteristics of property

Within the narrow definition, there are a range of different rights in rem, and all share two main characteristics, the right to a thing [1], that corresponds to a general duty placed on other members of society not to interfere with that right [2]

It is important to remember that:

  • there are valueless rights
  • not all rights are assignable
  • not all property rights are excludable

 

A Few Cases to explore: 

King v David Allen – there was only a right in personam and so had no property right to post bills, they only had a licence

Grady v HM Prison- all rights were sold to trustee, she no longer had rights to property as she was bankrupt. CoA said the unfair dismissal wasn’t an assignable right but was a personal right- for purposes of bankruptcy so she still had a case.

 

Rights to things

Are all rights to things property rights? Example:

An Oyster card- is just a plastic thing, enforceable against the world at large in relation to it would be rights in rem

The card entitles me to travel- but would this mean I have a right in rem to travel and the tubes? No as services are not property rights. Rights in relation to things aren’t necessarily rights in rem.

 

Persons and things

There is a general duty not to interfere with- other persons, and their things

The law aims to protect these rights in various ways e.g:

Your arm- tort- trespass to person

your book- damages- trespass to book

 

Interesting questions to consider in relation to rights:

Is your arm property?

as your body isn’t a separate thing.

being a person in legal terms is different from being a human being. This is proved by the case below:

Joly v Pelletier

The plaintiff was claiming that the government was hiding  knowledge of alien existence

Case was unsuccessful as assuming he’s an alien= he cannot bring a claim (only people can)

 

Property rights to Human Tissue

  • Human remains- corpse
  • Regenerating tissue- once separated from body it’s no longer your right e.g blood samples
  • non-regenerating tissue- e.g kidney- leaves you worse off if it’s gone= is it still property?

There is no law regulating this and this allows black markets to be stronger.

 

The case of Yearworth:

can you sue for failing to take care of frozen sperm? no personal injury present, however ruined claimant’s chances of having kids. Sperm is property.

 

Property rights to info

restrictions to freedom of info= protect public

intellectual property for example is designed to allow people to exploit ideas= limited monopoly rights

Case of Victoria Park is there property in a spectacle? there is a right to privacy

 

Share:

Leave a Reply

Your email address will not be published. Required fields are marked *