The Law of Real Property - Essay Example

Trainee Solicitor Barry Rich 12th January 2007 Re: Adam Lee - Purchase of No. 28 Lucky Road, Tai Po, New Territories Under the law of property, two meanings of the term 'property' arise i.e. 1) It means 'ownership' itself. Under the sale of goods Act, the seller transfers the property (ownership) in goods to the buyer when the contract is made. The fact that payment or delivery of goods was not made to the buyer is immaterial. This was held in the case of Tarling v. Baxtr. The plaintiff bought a haystack from the defendants. The haystack subsequently burned down and he sued the defendants (seller). It was held that the buyer had to bear for the loss and was therefore required to pay the price. This is because the property was passed to him when the contract was made. 1 2) A tangible thing (things' in possession) i.e. books, chairs etc. It also means an intangible thing (things in action). They have no physical existence i.e. patents, debts, copyrights, trademarks, shares. A very crucial information missing is on the type of "property" that Madam Eve Wong was to sell to Mr. Adam Lee. It is very important to make such as distinction because it has an impact on the remedies available in case of default. The English Law divides property into real and personal property. Although some other legal systems had divided property into movable and immovable. The distinction between real and personal property is of historical origin and is based on the different kinds of remedies available to a dispossessed person and the court action necessary to enforce it. Mr. Adam Lee should know what legal action he may have in case Madam Eve Wong dispossessed him of the property. If dispossessed of his land, Mr. Adam will have the right to get back the very thing he had i.e. land. He would have a right in Rem (a right in the thing). It is only the thing dispossessed that would compensate him. Therefore it would not be enough that Madam Eve Wong compensates him only with damages. This right in Rem grew out of a relationship between a person and a thing. The court action is called a real action. He is granted specific performance. If dispossessed of anything else (including leasehold land) a person only had to a right in personam. It would grow out of the relationship between a person and a person. The legal relationship, cannot be defined unless other person is ascertained i.e. owing a car, a chair, watch is related to a seller. The person dispossessed could only obtain monetary compensation from the person who dispossessed him i.e. damages. The court action is called personal action and the property recovered, personal property or personality. 2 Because of the distinction in the available remedies, it has to be established of which class of property that Madam Eve Wong has sold to Mr. Adam Lee belongs. Real Property Real property consists of land, including buildings on land and trees and crops that grow on it and the rights over land. It also includes water on land. There is a rule that: - "cujus - est solum, ejus est usque and coclum et ad internos". It means "whose is the soil; his is also that which is up to the sky and down to the depths of the earth". This maxim states that: - Land ownership refers to the soil, what is above and what is below. The question of whether the fountain was included in the contract of sale of the property can be well answered using this maxim. The fountain is not somewhere else in separate land. It is on the land that is being sold. 3 The agreement fails short of explaining the specific property that the seller intended to pass to the buyer. The term "property" here is ambiguous since it is not descriptive but general. The use that Mr. Adam intends to put the property would also be of essence in determining whether the agreement included the fountain. From the case, it has been stated that the fountain was freely standing in the garden. The information missing here is the height at which the fountain is standing. It is important because the buyer of land has a restricted air space to which he is supposed to enjoy from the use of land. In Bernstein Vs Skyviews, the court held that the ownership of air space above property is restricted to such height as it is necessary to the ordinary use and enjoyment of the land. Thus the plaintiff could not prevent the defendants from flying over his land in order to take aerial photographs. If the fountain stands on such a height such that private enjoyment of the land by Mr. Adam is prohibited, then he can sue Madam Eve Wong. But looking at the considerable value of the fountain i.e. HK$300,000, can be implied to mean that it was not included in the sale agreement. Whether or not it should be interpreted to have been included in the sale price would be what a reasonable man could've judged it to be. And a reasonable man here means one without any special knowledge/skill. There is also another rule that "Quilquid plantatur solo sololedit". This means that whatever is annexed or attached to the soil becomes part of the soil i.e. whatever is joined to the land becomes part of the land. Things attached to the land are known as fixtures. They include:- i) That rooted in the earth e.g. trees. ii) Embedded in the earth e.g. walls or buildings. iii) Attached to that which is so embedded for the permanent beneficial and enjoyment of that to which it is attached e.g. a bath or a fitted kitchen. Whether what is annexed to the land will become part and parcel of it is determined by the degree of annexation and the purpose of it. Sometimes the fact that something is annexed to the land may not qualify to be past of the land unless it is shown that it is beneficial to the enjoyment of the land. In Shaw Vs Shah Devsh a number of sisal machines were butted to concrete beds in a factory on a sisal plantation which was made of corrugated irons sheets. It was held that movable property does not become past of the land by reason only of annexation or fixation, that for it to be regarded as part of the land, it must be shown that it is on the land for the permanent and beneficial enjoyment of the land. For Mr. Adam to therefore succeed in claiming that the term "property" included the fountain and that it shouldn't be moved away, removal of the fountain would affect his permanent and beneficial enjoyment of the land. In Daharamshi Virji and another Vs Abdulremand and another, (1950), a wood and iron building containing two portions had been standing upon a square block of stone which informed the base into which timber was embedded for about ten years. It was held that the building was not part of the land since it was not permanent in nature. Personal Property Madam Wong has stated that she would remove the fountain as she had regarded it as her personal property. The way she has classified/described the fountain would automatically affect the fate of the case. Personal property is sometimes called chattels. (The name given to things which in law are deemed personal property. Personal property in their nature is movable property. They include:- 1) Chattels real i.e. leases and leasehold interests in land. It is the right to posses another's right for term in return for a rent. 2) Chattels personal (also called pure personality). These are every other kind of personal property and are of two kinds. (i) Chooses in action which are intangible and (ii) Chooses in possessions which are tangible. The classification is important because a personal property create rights in personam between the parties and not right in Rem. The sale of the land may not necessarily imply that the fountain has also been sold. Madam Eve Wong can exercise her right of Easement. Easements are the bare right of a person to use the land of another without the right to take anything from the land. It could've therefore been implied that Mr. Adam was to be entitled the rights to use land but not to take anything from that land. 4 Possession ownership To establish the ownership of the property would be something inevitable for Mr. Adam to do. Under the sale of goods Act, no one cannot sell what he doesn't own simply put "memo dat quod not habet". And a person who buys goods from a "seller" of the goods does not acquire a better title that the seller possessed. It is a rule that protects the true owner of the goods against anyone who buys his goods firm a person who has sold without his authority or without having any right in them. Ownership being a mother of law, relates to the relationship between person's rights over property vested on him. Madam Eve Wong must have the ultimate legal right over the use and disposal of the property. If the fountain does not legally belong to Madam Wong, then, Mr. Adam should forget about it in the first place because he would not acquire any better title of it than that Madam Wong had. POSSESSION is a matter of fact and the true owner of the fountain can recover it from Mr. Adam if found out that Madam Wong was not the real owner. And Mr. Adam cannot restrain the subsequent takeover or claim for compensation of the price paid unless he contracted in good faith. And if Madam Wong does not intend to pass the fountain to Mr. Adam she should be very careful because possession by Adam of the fountain for a period of more than six years can be converted into ownership. 5 Thank you. Trainee Solicitor References Emanuel, S. L, (2004), Fundamental of Business Law, 4th Edn, Sydney, Educational Publisher Jertz, A., Miller L. R, (2004): Fundamentals of Business Law, 3rd Edn, London, Macmillan Publisher Kronman, A.T (1985); Contract Law and the State of Nature, Journal of Law, Economics, & Organization, Vol. 1, No. 1 (spring, 1985), pp. 5-32 Ogola, J. J, (1999), Business Law, 1st Edn, Nairobi, Focus Publications ltd Penrose, R, (2005), Road to Reality: A Complete Guide to the Laws of the Universe, Nairobi, Longman Publisher Saleemi, N. A, (1992), Elements of Law, 2nd Edn, Nairobi, N.A, Saleemi Publishers Tyler, T. R. (1990). Why People Obey the Law. Hew Haven: Yale. Read More