Definition And Classification Of Property (1) (1) 5dq19

DEFINITION AND CLASSIFICATION OF PROPERTY

CLASSIFICATION OF PROPERTY UNDER THE COMMON LAW  

Res incorporales are incorporeal property such a copyright and patents. Res Corporales are corporeal property which are tangible and can be physically touched.

Moveable / Immoveable Property     Immoveable Property: refers to land and thing underneath and attached to it. o Land is indestructible and; o Forever retains its location. It is impossible to withdraw the courts’ jurisdiction. o Land is specifically recoverable o Land endures forever and can sustain rights as easements or servitudes which cannot subsist in moveable property.

LEASEHOLD INTERESTS AS IMMOVABLE PROPERTY BARBADOS AND TRINIDAD AND TOBAGO   

A lease is a grant of exclusive possession for a fixed term or years or period of years which is definite in duration, in return for periodic payment of money. In Trinidad and Tobago and Barbados (s 3(1) of Property Act 1979) a leasehold interests can exist as legal estates. Land is then defined to include “legal estates in land, whether or not they five right to possession of the soil” s2. Property Act 1979. o Thus it can be deduced that in Trinidad and Tobago as well as Barbados as lease can me considered immovable property or land.

BELIZE   

Position is not quite free from doubt. s2 Property Act 2000 defines land to include “land of any tenure...” in Re Booker the English Courts considered leases to be included in “land of any tenure” o Thus it can be deduced that leases are land in Belize and therefore immovable.

MOVABLES 

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Movable property can: o Lose its identity by destruction o It does not have a permanent location o If P is dispossessed he can be restored to him the very thing from which he has been dispossessed. o It can be worn out and torn beyond recognition and may not last beyond the life of man. The movable / immovable classification under the common law is used to resolve conflict of law issues.

PERSONALTY/REALTY 

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It is not easy to distinguish between personalty and realty. In England before the Land Transfer Act of 1897, realty ed under the common law directly to the heir on intestacy or to the devisee where the property was willed. On the other hand, personalty was vested in the first instance in the personal representative of the deceased. However, after the Act both personalty and realty was vested directly in the personal representative. Personalty could be will but it was not until the Wills Act of 1540 along with the Tenures Abolition Act of 1660 that reality could be the subject matter of testamentary disposition. Personalty could be the object of absolute ownership but realty under the common law was subject to incidents of tenures and could not be absolutely owned. The remedies for recovery were notable different: o The owner of realty could if dispossessed by virtue of action realis be put into possession of the very thing from which he was dispossessed. There was right in rem. o The owner of personalty’s remedy for loss was however in personam, and the defendant was obliged personally to remedy the wrong of breach complained of, there P did not get the dispossessed property back as a matter of right – it was an option between that and damages for the defendant. Seisin o This is the possession of a freeholder of a land, the actual possession enjoyed directly by him or by a leaseholder or copyholder who holds of him. o A treser’s seisin is good against the world except the disseised tenant who brings a claim before the statutory limitation has expired.

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Lord McNaughten in the 1907 case Perry v Clissold, “It cannot be disputed that a person in possession of land in the assumed character of owner... has a

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perfectly good title against all the world but the right owner.” In that case, Clissold fenced in land in 1881 after which he leased the land to tenants and even paid rates and taxes on it. Ten years after Clissold took possession of the land, the Government tried to claim it arguing that he was a treser. After his death his estate sued for compensation of the land and was successful. o When one is disseised he loses his usual rights and is left only with a right of entry which in many respects is related to seisin but is not seised because two persons cannot be seised at the same time (Leach v Jay) o The lost seisin can be regained only by means of an action instituted within the statutory limitation period for recovery. If the disseised fails to do this, he loses all rights to the property. o “Seisin” is a term of art and has never got into such ordinary use so as to lose its technical and distinctive meaning.  Leach v Jay  R. Roberts on his death devolved on his daughter and heiress at law Anne. Anne’s mother Mary however under the guise of a pretend will entered and retained possession of the estate until her death. Mary, when she died devised to Jay, who entered possession. Anne died have devised to Leach “all real estate (if any) of which I died seised”. Held that she was not seised of the property and as such could not it on to Leach. o Case goes against the clear intention of R. Roberts. Criticize it. o In 1837 by the Wills Act and 1845 (as well as the Caribbean equivalent: 1992 Property Act of Antigua and Barbuda) the right of entry could be devised and disposed of inter vivos. o The disseisor has all the rights of ownership and can devise the property.  Asher v Whitlock where W enclosed a piece of waste land and occupied it until his death leaving the wasteland to his wife on the condition that she remained unmarried with remainder interest in his daughter Mary. The daughter and the mother continued to reside on the property, the mother getting remarried to the defendant who moved into the property. Both mother and daughter died before D. The daughter’s heir at law brought an ejectment action against the defendant who argued

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that he was the last adverse possessor and was entitled to keep the property until ejected by someone with a better right to the property.  It was held that the interest in land which the accords to an adverse possessor has all the attributes of property, thus it can be devised. Thus, Williamson’s will was valid. Seisin finds expression in possession: possession is nine tenths of the law. Seisin cannot be in abeyance.

PERSONALTY 

Two categories: o Chattel Real which is a lease. A lease was not considered as realty because it did not descend to the heir on intestacy and there was no real remedy for the enforcement of a leasehold interest and a lessee did not have seisin. This is why under common law leases were not considered as realty but personalty but as time developed it became more akin to realty. It gained protection through the action of a writ of tres and it was always immoveable as realty was. However, an indeterminate during is an essential character of all freehold estates and the quality of inheritability. Thus, leases were considered as chattel real.  Trinidad and Tobago, Barbados and Belize

Chattel Personal 

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Choses in possession are things which are visible tangible and capable of direct physical control and possession. They are capable of being transferred by manual delivery, such a cigarette. They are not permanent or stationary. A chose in action is incorporeal; it has not physical existence and is not visible. These include debt, shares, copyrights, trademarks as well as contractual rights affecting land and other interests such as rent for letting and mortgage debt secured on land. While choses in possession have always be transferrable it is not until 1873 when a chose in action could be transferred, by assignment.

CLASSIFICATION OF PROPERTY IN ST. LUCIA 

Under the civil law property may be immovable by; o Destination o Attachment o Determination of Law o Nature

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IMMOVABLE BY NATURE o Art 335 defines immoveable by nature as consisting of;  Lands  Steam mills, water mills, wind mills  Buildings  Growing trees, crops and fruits are immoveable but become movable when severed from the soil. o It appears as only the things specified in Art 335 can be immoveable by nature. IMMOVABLE BY DESTINATION o These are objects which would have normally been movables but which are considered to be immovable by reason of their attachment to immovable property.  Article 337 describes them as moveable things which a proprietor has placed on his property for a permanency of which he has incorporated therewith, are immoveable so as long as they remain there. o For property to be classified as such, three requirements must be met:  Affixation by the Owner of the Immovable  Although there is no requirement that the movable should belong to the owner of the land, it must be affixed by the owner of the land. So chattel or movable property belong to a tenant cannot become immovable if it is affixed by the tenant. o Under common law movable property of a tenant can become immovable unless circumstances show that it was not intended.  Destination  In order to a movable property to become immobilised it must have been affixed on placed on or in the immovable property for the purpose of the service or exploitation of the immovable property. (Art 337) o Eg: pressers, boilers, vats, tuns, manure, straw, cattle, carts, cranks.  Intention to Immobilse the Movable  Art 337 speaks to the fact the item should have been placed on the land “for permanency... or incorporated therewith”. So the controlling factor in determining if the status of a chattel affixed to the land is the intention to incorporate for permanency. Thus, even if it rests on its own weight, it is possible for it to become an immoveable once the intention can be proved. Intention seems conclusive under civil law. This is the converse of the common law which a slight attachment is require after

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which intention gives rise to a presumption which can be rebutted. Immovable by attachment: Art 338 – read the section on page 17, don’t think it will come. Immovable by deterimination of Law: Art 340 – read section on page 19 LEASES: leases of less than nine years (Art 346, 345 provide that leases which are not emphyteusis are movables) are presumed to be moveable whereas long leases emphyteusis seem to be made immovable by Art 339. Not doing Guyana for classification but for fixtures!!!! 