Land Law Foundational Concepts - LLB Law

Property is a bundle of rights relating to something, and the extent and nature of these rights dictate the extent and nature of one’s property. These can be exercised in relation to all other people within the boundaries of the general lawover a particular period of time. It is possible for there to be both legal and equitable rights over the same piece of land, and for those rights to be held by different people.

The solicitor will, have to find out whether the vendor has title to the property that permits him to offer it for sale, whether there are any other parties with rights over the land whose rights might have to be discharged prior to the sale or indeed whose rights might have to be respected by the purchaser even after the conveyance has been completed. Leasehold rights were never re classified as real property, and therefore became known as “chattels real”, i.e. personal property in relation to which remedy is possible. The distinction between real property and personal property follows:

• Real property: freehold rights in relation to land and things attached to land (defined by application of the maximum superficies solo credit, or, “dad which is attached to the land becomes part of the land”)

• Personal property: rights in relation to things and this whole rights in relation to land and things attached to land.

Property can be divided into tangible and intangible rights. In general terms, tangible rights will be described as corporeal, or rights with physical substance. Intangible rights will be described as incorporeal, or rights without physical substance even though they can allow for a physical exercise over the land of another.

the holding of private property is generally conceived is a human right that is worthy of respect and protection in the law. This generally exists as a negative right and not a positive right. Positive rights relating to property and other social economic needs are generally resisted heavily at both domestic and international levels because they are seen ascreating too onerous burden on the state. The right to private property is afforded double protection in the Irish constitution.

in addition, article 40.3 protects private property by means of a state guarantee:

Duplication in the constitution of the guarantees relating to private property has been the subject of much debate and the constitution review group has recommended that the guarantee be expressed in a singular provision , however the courts have come to a conclusion on the appropriate relationship between these two. Where measures are challenged on the basis of constitutional property rights, the Irish courts will assess whether they:

• interfere with private property rights

• are directed at the achievement of legitimate aim, and

• are a proportionate exercise of state powers in pursuance of that legitimate aim (In Re Art 26 and Part V of The Planning and Development Bill 1999)

The European convention on human rights (ECHR),protects the right to possessions in article one of protocol one. The right to possession is contained in optimal protocol to the convention rather than in the main body of the convention . Article one protocol one provides:

article 1, protocol one protects possessions, including private property, from unjustified or arbitrary state interfering, it does not absolutely prohibit state interference with property. Possessions as defined in this article, are a relatively broad concept It can be taken to include any sufficiently established economic interest, such as mobile or immovable property, shares, patents, leases in judgement mortgages. The ECHR originally conceived of this provision as laying down three distinct rules:

• the first rule enunciates the principle of the peaceful enjoyment of property

• the second rule covers that probation of possessions in subjects it to certain conditions

• the third rule recognises that the contracting states are entitled to control the use of property in accordance with the general interest

Compliance with the provision requires that any interference with possessions ought to be lawful, it must be done on the basis of clear, precise and properly promulgated domestic law [Hendrich v France (1949)].Article one protocol one requires that any interference with possessions be done in a matter consistent with the requirements of procedural justice.

To date, article one protocol one has not shown any great degree of transformative character within the ECHR scheme. in one of the areas where it has thought that the convention might have a significant impact on Irish property law, namely in relation to adverse possession, the court has now firmly established that article one of protocol one is not violated [JA Pye (Oxford) Ltd v United Kingdom (2007)]. The Irish constitutional jurisprudence tends to be more proactive. While there is a negative obligation not to interfere disproportionately with people’s possessions, there is nopositive obligation to take appropriate action to regulate interpersonal economic activity to ensure that people can acquire possessions even with very limited resources. It relates to the lack of willingness to accept positive obligation relating to social and economic rights generally mentioned above.

The concept of moral limits to property is probably best illustrated throughout consideration of the evolution of the rule that there is no property in the human body. Originally the law recognised that a portion of our fellow creatures may become the subject of property this survived in the law until the abolition of slavery. There are limited numbersof scenarios in which human bodies or parts thereof can be protected by the law against interference from others.

In the case of corpses, prior to the burial there is no interference with the corpse by medical or other practitioners. In Smith v Tamworth it was defined as a sort of quasi property in...