The Law of Property Is Very Complex - Essay Example

?Sale of Property (Case Law) Law of property is very complex in its nature and involves so many legal issues. It is, therefore, important that beforeone makes a decision to purchase a given piece of land or any property for that matter, he or she must consider the legal issues attached to the transfer of property. If this is not property done, then the transaction may end up being declared null and void. This is why it is important that before committing to buying the cottage, the big garden and the field adjacent to it from Mr. Blog, the purchaser must make an informed decision with regard to the legal issues attached to the properties to be sold. To begin with, it is imperative to understand the different types of property that can be sold. Basically there are two types of property: real and personal property. Real property in this case refers to the land and anything that is growing, erected or affixed to it, including the crops and buildings. The term is also used to refer to any rights attached to the ownership of the land. Therefore, the terms real property and real estate both refer to land. Land also includes everything found above and beneath it such as oil, minerals and gases (Laitos 1998, p. 4-13). Personal property (movable property), on the other hand, is anything other than land which can be subject of ownership such as money, inventory, copyrights and patents, as well as intangible property. The difference between personal and real property can be recognized very easily. Nevertheless, its character can be altered. In this case, a property that was initially personal in nature may become a real property by being annexed to it. For instance, this may happen when a rail is converted into a fence on land. However, in certain cases the agreement or intention of the parties determines whether a property annexed retains its character as personal property. A typical example of such a scenario may happen when the landlord and the tenant agree that the new lighting fixtures attached by tenant on the ceiling of the house remains the property of the tenant after expiration of lease period (Laitos 1998, p. 16-28). Based on these facts, it is important that before buying Mr. Blogs properties, the purchaser must first establish the ownership rights or possession of the property to be purchased. In this regard, possession refers to the interest in a given property under which an individual to the exclusion of others is able to exercise some degree of power over something. Basically, it is the property right that entitles the possessor to continue peaceful possession against any other person except someone with a superior right (Stoebuck, Whitman and Cunningham 2000, p.14-22). This also gives the possessor the right to recover personal property, that has been acquired wrongfully and to recover damages against offenders. As such, it means that in case Mr. Blog only possesses the said properties without ownership, then he has no right of passing the title to the purchaser. In this case, if he happens to transfer the property to the buyer and latter own its owner comes along and claim for it, then the buyer would have to surrender the property since it is voidable. Therefore, it is important that the buyer consider the true ownership of the property before committing to buying the property. Based on the common law principle, an individual cannot pass a better title than he or she has (Mattei 2000, p.13-29). This implies that a buyer cannot acquire a better title than that of the seller. For instance, since a thief does not have a title to the stolen goods, it follows that a person who purchases goods that are stolen acquire no title. This implies that the purchaser would also have to determine if Mr. blog is the bona fide owner of the properties he is selling. This is to unearth whether the properties that Mr. Blog is to sell are stolen, grabbed or are for someone else. The reason being, if the properties that Mr. Blog wants to sell happens to have been acquired illegally, then any transfer to the purchaser would not be recognized by law. This means that the purchaser will not acquire any valid title to the property. The buyer will also have to consider legal issue to do with bona fide buyer principle. A bona fide purchaser refers to a person who buys property for value without any notice of defects to the sellers title (Stoebuck, Whitman and Cunningham 2000, p.46-59). For instance, if Mr. Blog indicates to the purchaser that he has ownership and absolute authority to sell the cottage, the garden and the open field adjacent to the garden, then Mr. Blog will be estopped from denying such representation, in case the buyer happens to resell the properties to another bona fide purchaser for value without notice of the rights of the true owner of the said properties. What the purchaser need to know also is that such prevention may not apply when an owner buys items for repairs or services to a dealer and the dealer happens to wrongfully sell the property. Nevertheless, there is still a reprieve provided by the Uniform Commercial Code. The purchaser must also be aware that a buyer who induces a sale through false representation acquires a voidable title from the seller. Robert notes that the voidable title acquired may be vacated at the option of the seller discretion, after discovering that the buyer had been fraudulently induced himself. This implies that be buyer would have to be very careful when purchasing the properties without fraudulently inducing himself to the contract. This is because, in case the purchaser does so, and Mr. Blog later discovers the fraud, then he will have the discretion to vacate the deal rendering the transaction invalid. The seller usually has the authority to transfer good title to honest purchaser for value without notice of any outstanding equity (Stoebuck, Whitman and Cunningham 2000, p.46-59). It is worth noting that the voidable title rule is only used under circumstances when the owner is induce to part with title and not just the possession due to misrepresentation, deception or fraud. The other important legal issue that the buyer must be aware of is what the law says with regard to passage of property by sale. Generally speaking, the common law eludes that, for a property to be passed sale, there must be an express, or implied agreement that the title of the property shall pass (Bingham 1997, p.37). In the case before us which involve an agreement to sell real property, the law says that once the buyer shall have entered into a contract with Mr. Blog to purchase the properties like the garden, the legal ownership of such lands still remains vested in Mr. Blog and does not become vested in the buyer until the buyer shall have received a lawful deed of the passage of the title from the seller (Mr. Blog) to him. This means that even if the possession or usage of these properties are passed to the buyer, the law still hold that the properties still belong to the seller. This means that it will be very important that immediately after the sale is concluded between the buyer and Mr. blog, the first thing to do is look at ways of getting the title deed for the land that has been purchased. If this is not done, then the buyer should be rest assured that law would still recognize Mr. Blog as the true owner. Nevertheless, the law also provide a reprieve for the buyer in case Mr. Blog fails to honor the contract and surrender the titles. This is based on the fact that law would allow the buyer to sue Mr. Blog for breach of contract and recover pecuniary damages for that breach. It is also worth noting that, in equity, immediately after contract for sale, the land like the one being sold in our case is considered to belong to the buyer, in which the court can enforce its rights by a decree for a precise performance and the seller being entitled to the purchase money. It is important also that the buyer determines if the land could be of public dominion. Public dominion is the ownership by the state due to the fact that the state has administration, control or ownership. For instance, it may be that the land to be sold by Mr. Blog belongs to the government. The law hold that a property of public dominion are outside trade of man, cannot be donated, leased, sold or be the subject of any contract, except where they are taken for repairs or improvement among others. The law states that these properties cannot be acquired by prescription, irrespective of how long the possession of these properties have been (Mattei 2000, p.43-56). . This was witnessed in the case between Parlance v. Commonwealth and Menses v. Commonwealth. The law states that a transaction that involves the sale or illegal acquisition of public land is null and void. Therefore, the buyer is expected to know or ought to know or make attempts to find out if the property to be soled is for the public dominion or not. This is because, in case a buyer is induced to such a contract, they may not be able to sue and succeed in recovering the money. The only reprieve is that they can sue the seller for the damages as (Laurel v.Garcia, 1990) (Bingham 1997, p.15-32). Finally, the legal issue that the buyer must be concerned of is whether the property that Mr. Blog wants to sell has anyone else already utilizing the property or have some interest in the properties (Mattei 2000, p.21-38). For instance, the buyer may find that the land which is to be sold to him by Mr. blog has someone already using it or claiming an interest in it and has a genuine title. This means that in case the buyer is induced and enter into the contract without notice of the fraud, the contract is still considered voidable under the court of law. This implies that the buyer may end up loosing his money to unscrupulous sellers if he fails to carry research to establish those with the interest on the land and the properties attached to it. The reason being, the court will still rule in favor of the genuine title holders. Nevertheless, since the buyer is a bona fide purchaser, he will have the right to sue the seller for damages in order to recover the money that might have been paid. References Bingham, A. (1997). The law of executory contract for sale of real property. New Jersey, NJ: Wim. S. Hein Publishing. Laitos, J. (1998). Law of property rights protection: Limitations of governemental powers. New York, NY: Aspen Publishers Online. Mattei, U. (2000). Basic principles of property law: A comparative legal and economic introduction. Westport, CT: Greenwood Publishing group. Robert H ‘An ‘Irreversible Conquest’? Colonial and Postcolonial Land Law in Israel/Palestine.’ http://sls.sagepub.com/content/12/3/291.short Stoebuck, W.B., Whitman, D.A., & Cunningham, R.A. (2000). The law of property. London: Westgroup. Read More

 

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