Land Law Foundational Concepts - LLB Law - Irish Land Law Foundational Concepts

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 the corpse. this was confirmed by the 6th Circuit Court of Appeal in Brotherton The Cleveland [1880] in which corneas were removed from the disease without the consent of the next of kin. The court held that the plaintiffs were entitled to the protections of their property guaranteed by the due process clause in the same way as those rights would be guaranteed to them in relation to any other piece of property.

The most continuous exception to the rule that bigger is no property in human beings is called the work and skill exception. This comes from the Australian case of Doodleward v Spence [1908]. The corpse of a 2 headed baby had been preserved and had become the subject of a dispute as to who was properly entitled to it. The court accepted that human bodies were not capable of being property, they did not accept that this was an absolute rule. Griffith CJ held that the possession of a corpse for purposes other than burial was not, per se, unlawful and proceeded to carve out the work and skill exception.

A human body, or a portion of a human body, is capable By law becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with the human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial , he acquires a right to retain possession of it, or at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law whichforbids its retention under the particular circumstances.

This was endorsed by the Court of Appeal in R v Kelly [1999]. It concerned an artist who had limited access to cadavers at the Royal College of Surgeons London. he was charged with the theft of different body parts which were removed without authorisation and used by him for the creation of bronze sculptures and were never returned to the college. The Court of Appeal upheld his conviction holding that there is a distinction between corpses and body parts and, Furthermore, that body parts could be transformed into property by virtue of the application of skill.

This question has become more urgent with the advancements in medical research and technology that frequently required the harvesting of and experimentation which cells, or other body tissue , and can result in the production of body parts. There is case law that suggests the absolute rule against property in the human body may continue to be applied notwithstanding developments in scientific and medical research (Moore v Regents of UCLA 1990). he was being treated for leukaemia at UCLA where different body substances were removed for the confirmation of his diagnosis. after his diagnosis he kept going back to UCLA to get more treatments to cure his disease And more bodily fluids were sampled. throughout his treatment doctors at UCLA medical centre had been engaged in research on hairy cell leukaemia involving the use of his cells and other bodily substances without his knowledge. Moore suit on the basis that he had property rights in these cells will stop the court held that he had no property in his cells or the profits made from them , although it did find that his medical staff had an obligation to reveal the research and financial interests in the bodily substances harvested from his body.

This raises questions about the nature of the rule that there is...