Essay on "Property Chapter 1 Deals With the Acquisition"

Essay 10 pages (2730 words) Sources: 1

[EXCERPT] . . . .

Property

Chapter 1 deals with the acquisition of property in all its different forms and this chapter states, from its very beginning, the fundamental rule in property ownership: the rule of capture. The rule of capture implies that the first person to take possession of a thing owns its. Following this introductory notion, the chapter continues to detail the most important elements of the rule of capture, including some of the most particular cases, such as the capture of wild animals or the discovery of caves.

The chapter focuses greatly on the way that property is awarded in the case of allocating resources, such as the rights to energy resources (oil or gas) and water rights. In terms of the latter, ground water rights are generally limited by a reasonable use clause, while transportation of the water off the land is more limited. The surface water also belongs to the person who captures it and, as such, can generally be used in any manner as long as lower owners are not harmed.

Beyond the rule of capture, the chapter goes on to discuss the acquisition by creation as another way of recognizing property. The purpose of this type of recognition is to reward labor, as the chapter shows in presenting the general rule in this case. The chapter also shows several other different types of acquisition of property that include acquisition by find or acquisition by adverse possession.

Chapter 2 expands on the most important notions relating to personal property by first defining and discussing the notion of bailments, where a person has a rightful possession of the goods without being the owner. The bailee, as this person is referred to, has a series of rights and obligations, among the latter the duty to redeliver and the obligation to exercise care.

Personal property can also be obtained by means of a voluntary transfer of property without consideration (a gift of an object or any other type of property) or by the transfer of property, in which case the bona fide rule is applied: a seller can transfer no better title than he has. All these definitions are blended with examples and detailed throughout this chapter.

Chapter 3 is an extensive discussion around the possessory estates notion, a law element going back to the feudal system in feudal England, as imposed by Norman conquerors. The beginning of this chapter has a short historical description of how the possessory estates came about and the different types of estates (fee simple, fee tail, life estate, leasehold estate) are introduced. The chapter continues, thereafter, to detail each of these types.

Each of the possessory estates is defined by the length in time that the right of property lasts. There are different types of fee simple, including the fee simple absolute (with the ownership potentially having infinite duration) or the defeasible fees (the infinite duration is no longer certain). All subchapters referring to the possessory estates details both the historical background and the main characteristics of each of the notion, including the different types of fees tail.

Chapter 4 discusses the notion of future interests, which is introduced in an ample definition at the beginning of this chapter. Summarizing this, the future interests concept proposes the idea of a present, nonpossessory interest capable of becoming possessory in the future. The chapter follows on to present the five categories of future interests: reversion, possibility of reverter, right of entry, remainder and executory interest. Each of these are discussed in separate subchapters that included a definition of the concept and particular situation that need to be addressed separately. The latter includes, for example, the concept of alienability, in the case of the possibility of reverter, or vested interest, for reversion.

Chapter 4 also presents the notion of executory interests, but also a generous historical perspective in a subchapter about rules restricting contingent remainders. While these have been mostly abolished, they still give a good idea about how the general notions relating to interests and property in general have come about. With that in mind, this is still a useful chapter to go through.

One of the very interesting notions amply described in chapter 4 is the notion of trust, a fiduciary relationship that begins between the trustee and the beneficiaries. Beyond this definition, trust defines a concept whereby a person is entrusted and manages the property for the benefit of the beneficiaries. The powers of the trustee are quite broad and there is virtually no distinction as to the degree of management that the trustee can apply, as compared to the real owners.

Chapter 5 deals with concurrent ownership and marital rights. The chapter starts with several subchapters on the notion of tenancy and, as usual, with definitions that are key to understanding how tenancy works in the overall concept of property. Each subchapter deals with the different types of tenancy, be it tenancy in common, joint tenancy or tenancy by the entirety. In each case, the subchapter is opened with a clear description of what that particular tenancy case implies and how it translates into practice and a real situation. The subchapters detail particular requirements and cases that need a separate discussion.

Following discussion on tenancy, subchapters E. And F. expand on marital rights to property following either divorce or death of a partner. In each case, there is a clear differentiation between common and modern law, with the notions being amply opened for discussion for each particular case. An interesting subchapter in this chapter is the one referring to the rights of unmarried partners, as the notion of living together without being married imposed a necessary debate around this topic. Contracts can be established between unmarried partners and, more and more through the U.S., same-sex partners can enjoy the rights and obligations of any other couple.

Chapter 6 presents the relationship between the landlord and the tenant in a similar manner as many of the other chapters are treated, starting with the historical perspective and explanations that relate to the historical background of the matter at hand. The tenant-landlord relationship has particular features that differentiate it from any other type of lease relationships in that the tenant has the right to the possession. The chapter continues to present the several type of tenancies (tenancy for years, periodic tenancy, tenancy at will etc.).

Several of the subchapters go on to expand on the obligations that the landlord has, among them the duty to deliver possession and the duty not to interfere with tenant's quiet enjoyment, as well as the duty to provide habitable premises. In terms of the latter, the chapter presents the general framework in which the landlord has the duty to repair after entry by tenant.

Chapter 7 deals with easements and covenants. The former is defined as an interest in a piece of land that entitles a person to use the respective land, but which is possessed by another. The chapter explains the many different means by which easements are created and the general scope of easements. The second part of the chapter deals with covenants, a notion also related to the use of land. The chapter continues to detail other notions of property land, including equitable servitudes, a particular type of covenant.

Chapter 8 is an interesting practical chapter in that it deals with rights against neighbors. Although mainly referring to land use, it can still be partially applied to other areas of property law as well. The chapter expands on the different rights that come into force, such as the right to support or the rights in airspace.

Chapter 9 discussed the public land use controls, starting with a wide array of zoning mechanisms that are in place and the legal framework that regulates such zoning. In subchapter C, it is explained that the government do have the power to take title to property even if the owner does not agree with such an action, provide that they respect certain clauses as to how this can be done, including a proper compensation for this.

Chapter 10 deals with the sale of land as a way of passing on the property right to another person. The broker's role is essential in the case of a land sale in that he has the exclusive right to sell the property at either the terms of the contract or the terms to which the parties have agreed. The attorney's role, on the other hand, is to examine all legal and judicial aspects related to a property sale. At the same time, the chapter presents several remedies for the buyer or seller in the case of a breach of contract. Among these, specific performance or damages are the most important ones for the buyer and similar ones are discussed for the case of the seller.

The deed is a particular act that is necessary in the transfer of interest in land. The first step in transferring this interest in land is to present a writing signed… READ MORE

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