Distinguish between Personal and Proprietary Rights to Use Land - Essay Example

Is it Necessary, and is it Possible, to Distinguish between Personal and Proprietary Rights to Use Land? Insert (s) Course Code Date of Submission Is it Necessary, and is it Possible, to Distinguish between Personal and Proprietary Rights to Use Land? Introduction Yes, it is both necessary and possible to distinguish personal and proprietary rights to use land. Although the dividing line between personal rights and proprietary rights when it comes to land use in the United Kingdom is not always easy to draw, personal rights often distinguished from the proprietary rights in that proprietary rights provides the capacity to bind a purchaser of the land while personal right is only binding to the person who gave the right. Technically, all lands belong to Crown under the English jurisprudence of land laws. However, both personal and proprietary rights to land exist and an individual may not technically own land but a series of rights related to the use of the land1. From a jurisprudential standpoint, the distinction between personal rights and proprietary rights to use land is critically important today as it was in the past. This is particularly because land leases remain personal property in the contemporary English property laws. As such a clear distinction between personal rights and proprietary rights may be required in solving a wide range of land use disputes and other legal issues pertaining to land ownership, inheritance, leasing, and contractual agreements. However, despite some of the clear legal benefits of drawing the distinction between personal rights and proprietary rights to use land, there have been a number of opposing arguments questioning the necessity of distinguishing the two rights. For example, many critics argue that the distinction may not be necessary due to the diminishing divide between personal rights and property rights in the contemporary English laws. According to this argument, the collapsing boundary between the proprietary rights and personal rights are mostly attributed to the current persistent commercial pressure. This paper argues that it is both necessary and possible to draw a clear distinction between personal and property rights to land use. Distinction between Personal and Proprietary Rights to Land Use The conceptual distinction between the property rights and the personal rights in the English law can best be seen in the fundamental differences between a land lease and a license. Firstly, whereas a lease usually confers exclusive possession and greater protection of the tenant (proprietary rights to the land), a license only confers personal permission with no exclusive possession rights and the licensee cannot enforce any of its rights against third parties. In this regard, a license does not qualify as a proprietary right. In the case of Errington v Errington Woods [1952], Lord Denning held that every grant involving exclusive possession should be regarded as a lease only as long as long as the intention was consistent with the lease and there is also an intention to create a legal relation even if it is a family agreement2. Another important distinction between the use of personal rights and the proprietary rights to property can be seen in the nature of protection afforded to the tenants under each of the rights. For example, the Law of Property Act of 1925 provides a number of protections afforded to the tenant but which do not extend to licensees. In the English case of Street v Mountford [1985], the House of Lords ruled that a lease can only be created if the factors such as exclusive possession periodic or fixed term at a rent as well as the intention to create legal relations between the involved parties. In this regard, the differences between personal rights and is that proprietary rights to land use are not only personal to the parties involved in a contract or agreement but are also capable of effectively binding or impacting on third parties rather than only the parties to the particular contract. Generally, proprietary rights covers a number of areas related to land use some of which may include easements, mortgages, rent charges, rights of pre-emption, and proprietary estoppel. In addition, leasehold is usually proprietary in nature. The leasehold rights are usually enforced against the superior estate. Based on the contemporary English laws, the freehold rights are enforced against the crown of the feudal overlord. Some of the land rights are classified as proprietary rights because of their force and character. On the other hand, personal rights hold the fact that the ownership of the property is subjected to the personal action. The action allows the owner of the property to sue the defendant incase anything happens to the land. Additionally, according to the law, the personal rights may only be able to safeguard all the activities that one wants to undertake when he or she possess the land. The personal rights give a person an opportunity to possess the land, use it, and transfer it to another party3. Proprietary Estoppel, Licenses, Leases and Co-ownership Estoppel, Licenses, Leases and Co-ownership are some of the critical issues associated with the land ownership and land use rights in the United Kingdom. For example, proprietary estoppel is an important mechanism of acquiring land use rights based on clear assurance, substantial detriment and reasonable reliance. On the other hand, based on the provisions of the Property Act 1925, a lease primarily consists of an individual acquiring ownership of a given land for a particular period of time. Leases and easements are normally considered to be proprietary rights and therefore anyone who purchases or come to ownership of the land may enjoy its property rights subject to the imposed obligations. For example, in the case of Street v Mountford [1985], it was held that the only defining feature of a lease is exclusive possession by the owner4. A license to land use refers to the simple permission which is granted to the individual and can be revoked by telling the licencee to leave the land. The distinction between a lease and a license is that a license is not considered as a property right under the English laws. Finally, co-ownership is whereby a land asset is partly owned by two or more individuals. In most cases, ownership of property means that a person has full control of the land. He or she can exercise physical control. Additionally, one has a right to change the structures of the land even. Ownership of the land means that a person has certain duties and rights with respect to ownership of the property. The land laws are multi-dimensional. Thus, they bring into play legal, political, technical, and institutional aspects. The land laws are enforceable and formal. Ideally, rights which are created by an agreement can either be proprietary rights or personal rights. Personal rights are usually not binding to a third party, such as contractual license while the proprietary rights affect the third parties. In proprietary rights, another party enjoys the rights of inheritance of the land. Thus, a person cannot own a piece of land, but owns a series of rights which are entitled to that land. They are usually referred to as an estate in land. There are two estates in the land which are freehold and leasehold. Freehold means that a person has absolute rights in respect to the ownership of the land. On the other hand, leasehold means that a person owns the land for a pre-set fixed period5. Personal and proprietary rights mark the field of operations of the land laws. Proprietary rights have an enduring effect on the land concerned. The personal rights originate from the contract rights. They also remain outside the realm of the real property. The proprietary rights mainly fall into two categories namely the interests in land and estates in land. The doctrines of the estates usually form the cornerstones of the law of real property ownership. Law of Property Act 1925 The Law of Property Act signed in 1925 is one of the most enduring laws that guide land ownership. The act deals with leases, formalities, leases, conveyances, and tenancies. However, the common law is a source of the land laws and ensures that the laws that are set work in hand with the people’s traditions and principles6. Additionally, the English property law is part of the formulation of the land laws. The sources of the land laws have to be simple and flexible. The legislation comprised the following acts trustee act, property act, administrations of estates act, land charges act, settled land act, and land registration act. The purpose of the creation of the acts was to simplify the process sin which interests, rights, and obligations over or in land are transferred. Land ownership is a very crucial aspect which should be considered at all times as it provides a guideline on how land ownership should be done. The proprietary rights are used in different situations in life. However, the main idea of the proprietary laws mainly relates to ownership of property. The rights are classified and structured into different categories to portray the ownership of the property by different parties. The rights also allow the owners to practice the ownership of different ideas by nature. The different forms of ownership are available in different state laws. Proprietary rights also include the rights to protect the name of the business in case the land has a name. Additionally, people have rights on the real estates that they own. The proprietary rights are protected, and if they are violated it is considered as an infringement of someone’s rights7. Generally, ownership of the proprietary rights should be protected. The type of the information to be delivered to the public domain should not be confidential. Additionally, it is important to determine the intellectual property in relation to the proprietary laws. In propriety rights, when there is collective ownership of the land the shares are distributed according to the share ownership of each individual8. The contemporary English proprietary rights control how some of the information and concept is used by the contractor. When all the contractors stipulate the terms of the contract, they ensure that the interests of each of the parties are met9. Understanding the role of the propriety rights is the role of each individual who owns land. Currently, the English land laws are mainly drawn from four main sources which are the system of land registration, continuing system for unregistered land, European Convention on the human rights, and equitable and common principles which are developed in the courts. The common law and equity give people the privileges and the rights to acquire the personal rights. The law recognizes property rights as people with personal claims. The land laws are forms of laws of real property. The laws of land acquisition relate to protection, acquisition, and conflicts of people legal and equitable land laws10. Why it is Necessary to Distinguish Personal Rights from Proprietary Rights There are a number of potential reasons that may justify the necessity to distinguish between personal rights and property rights. The role of the land law is to regulate the ownership of land and ensure that the owner receives a certain level of protection. Propriety rights over land use are the rights enforced over the things are owned by an individual. Additionally, the propriety rights are distinguished from the personal rights because of the ownership rights that are attached to each of them. The personal property is subjected to personal action. The actions include the property owner being allowed to sue for any irregularity of the land issues. The ownership of land has its roots in the feudal system which was established after 106611. For example, in most parts of the world, the control of the land stems from the actions of the individual and private developers. That is why the personal and propriety land laws have come in to address this issue. There must be a proper distinction in property ownership. During inheritance and the transfer of land from one party to another, personal and proprietary land laws should be protected to ensure that the parties involved work with the set rules and regulations. Protection of the land laws ensures that there is no infringement of the rights of every individual. The parties involved have to understand the position of land ownership and how it should be handled. In addition, land is an important asset and provides a social safety has rights can be transferred from one generation to another. When one is not secured with the land rights, they live under constant threat of eviction thus impacting to the fundamental human rights12. According to the law, the personal property rights are divided into two. That is tangible and intangible. The tangible property includes items such a merchandise, animals, and jewellery. On the other hand, the intangible property includes copyrights, patents, stocks, and bonds13. Land ownership is determined by various factors such as social, economic, and political factors. The law allows the state to own the land which is referred to as state ownership. The other type of land ownership is collective ownership where the land is communally owned. The last type of land ownership is personal or private ownership. In the modern society, the law defines four main ways of acquiring land. The first form of land acquisition is a consent which is based on obligation14. In this case, the land is transferred through the agreement of a contract. During the transfer, all the person’s interests are supposed to be registered so that they can be fully protected. However, the law still recognizes people’s interests, even if they are not captured in the formal way. Secondly, one can acquire land through the constructive trust. In this case, the contributions that someone has made are appreciated. In addition, the land law forms the law that mainly deals with the rights to exclude, alienate, and use the land. The propriety land laws are distinguished from the personal property laws. The proprietary rights are also referred to as the real estate or property laws. The land laws are concerned with the interests and the obligations which guide the ownership of the land. Additionally, there are other property ownership rights such as incorporeal and corporeal, which are also referred to as the real property rights15. The reality rights are distinguished from the personal rights because the personal rights are movable in nature. Subsequently, Incorporeal and corporeal hereditaments are categorized under the real property by law. The corporeal amendments fall under the tangible objects such as grass, dirt, trees and buildings. On the other hand, the incorporeal hereditaments cover the intangible assets such as easements which mainly include person’s land. The personal property is movable while the proprietary property is fixed. Land rights mainly ensure that individuals have the opportunity to utilize freely and possess the land. Land laws are very crucial, but they must go by social acceptance and cultural traditions16. The land laws have been established in the international law framework. The land laws are established for particular groups of people. They ensure that cater for all the people so as to protect the rights of the people. The personal and proprietary rights fall under the human rights. Thus, the law ensures protection is provided to all the areas that relate to land. Non-discrimination and equality are highly promoted by the law in areas of land ownership. Additionally, land ownership opens up provides social safety and promotes the volubility and safety of the land. Generally, propriety issues of land ownership occur in different situations and conditions. The law recognizes come of the important land ownership mistakes such as fraud. Thus, the owners of a certain piece of land have to understand what the law focuses on especially on issues of land ownership and transfer. Before the transfer of land, the owners have to put in place some of the considerations have required by the rule of the law. They have to know what is required of them by law17. Thus, before transferring land ownership to another part, there must be some of the considerations that must be put in place. The law ensures that people sign confidentiality forms to ensure that all their property is protected. Understanding the rights of the individuals and how they should be a handled by the court ensures that all the rights are protected and people feel secure on issues of the land ownership. Land ownership and the rule of the law work hard on the land18. If a person owns a piece of land, they should ensure that they understand their rights to protect their property from any form of theft. Land is one of the most immovable assets that should be protected by the rule of the law. Protection of land ensures that it is not accessed illegally by any individual19 Conclusion In conclusion, it is both necessary and possible to draw a clear conceptual distinction between personal and property rights to land use. Generally, there is a remarkable difference between the proprietary and personal rights in land ownership. Based on the contemporary English land laws, this distinction is critically important as it is required in solving a wide range of land use disputes and other legal issues pertaining to land ownership, inheritance, leasing and contractual agreements among others. References Case Laws Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 Errington v Errington Woods [1952] 1 KB 290 Herbert Morris Ltd. v Saxelby [1916] 1 AC 688 Matthew Gloag & Son Ltd. v Welsh Distillers Ltd [1998] ETMR 504 Street v Mountford [1985] A.C. 809 Strand Securities v Caswell [1965] Ch 958, 979 Books Bruce, John W. 2006. Land law reform achieving development policy objectives. Washington, D.C.: World Bank. Card, Richard, J. R. Murdoch, Sandi Murdoch, and Richard Card. 2011.Real estate management law. Oxford: Oxford University Press. Clarke, Sandra, and Sarah Greer. 2014. Land law: directions. Gray, Kevin J., and Susan Francis Gray. 2011. Land law. Oxford: Oxford University Press. Holdsworth, William Searle. 2005. An historical introduction to the land law. London: Oxford University Press. MacKenzie, Judith-Anne, and Mary Phillips. 2012. Textbook on land law. Oxford: Oxford University Press. McFarlane, Ben, Nicholas S. Hopkins, and Sarah Nield. 2012. Land law: text, cases, and materials. Oxford, U.K.: Oxford University Press. Neville, Cynthia J. 2010. Land, law and people in medieval Scotland. Edinburgh: Edinburgh University Press. Pearce, Robert A., and Warren Barr. 2014. Pearce & Stevens trusts and equitable obligations. Pearce, Robert A., John Stevens, and Warren Barr. 2010. The law of trusts and equitable obligations. Oxford: Oxford University Press. Raff, Murray J. 2003.Private property and environmental responsibility: a comparative study of German real property law. The Hague: Kluwer Law International. Sayles, Victoria. 2013. Land law: concentrate. Oxford: Oxford University Press. Read More