Property law: introduction1
1. What is property
1.1. Consider the example
1.1.1. You buy software from a shop and are given a CD containing files relating to
the software.
1.1.2. What do you really want to buy, the CD or the software, which cannot see and
touch?
1.1.3. Is it meaningful for us to say that you are the owner of the software? What is
the subject matter of the transaction?
1.2. Consider another example
1.2.1. A developer purchases a piece of land from the government. Under the
contract between the two, the developer has the right to use the land for 50
years.
1.2.2. Under another contract, the developer leases out the land to a company for
three years for the company to use the land as a car park. The company will
have to return the land to the developer three years later.
1.2.3. What are the subject matters of the transactions and what are we focusing on
when we talk about the ownership of the land by the developer or the
company?
2. Concept of property in society
2.1. Property
2.1.1. Has economic value, i.e., demands of a society.
2.1.2. Hence, there is no boundary regarding the things be regarded as properties.
2.2. Transactions relating to property
2.2.1. Layman: property relating to something tangible, i.e., can see and touch.
2.2.2. Legal aspect: as regard real properties in particular, focus mainly on the
intangible aspect of the thing, i.e., the rights exercisable by a particular
person.
3. Property law: dealing with2
3.1.1. Legal relations,
3.1.2. Between persons, and
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Reading of Mr.Paul Kent. The law of Property: F.H. Lawson and Bernand Rudden 2nd edn.
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Just a working definition, which means that there are things regarded as properties in law not being
covered by the definition.
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3.1.3. Things, which is defined by law.
3.2. This definition is important particularly in real property or realty: see below.
3.2.1. Rather than focusing on the tangible things, emphasized on the rights and
duties exist between the persons and those tangible things,
3.2.2. For economists, such rights and duties have market values, e.g., your right of
possession to a piece of land being subject to a lease gives you the right to
receive rental from the tenant.
3.2.3. For lawyers, it is upon the concepts of rights and duties that legal
consequences rest. In fact, most of the legal concepts in property law are the
inventions of lawyers, whose primary attention were on the consequence of
lawsuits.
4. Things: type
4.1. Things: corporeal, i.e., concrete, and incorporeal, i.e., abstract.
4.1.1. Concrete or tangible objects: e.g., computers, cars etc.
4.1.2. Abstract or intangible objects: e.g. estate, debts, shares, investment funds etc.,
also include such intellectual properties as patents and copyright.
5. Legal relations
5.1.1. Personal relation.
5.1.2. Real relation.
5.2. Personal relation, or relation in personam, i.e., against a specific person:
5.2.1. Usually expressed by way of an obligation.
5.2.2. A owes you HK$100, i.e., A is your debtor.3
5.2.2.1. The thing is the debt, the legal relation is one of debtor and creditor.
5.2.2.2. Only A is your debtor, and no body else, and only A can be sued by you
when he fails to make repayment.
5.2.2.3. Be enforceable by contract law.
5.2.3. Not to be dealt with in property law.
5.3. Real relation, or relation in rem, i.e., against the whole world – not a particular
person
5.3.1. E.g: You own a car:
5.3.1.1. The thing is the car, and the legal relation between you and the car is the
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In this example, we focus on the relation, not the debt.
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ownership of the car.
5.3.1.2. Identities of every one in the world are irrelevant to the legal relation at the
outset in that they all subject to the legal relation, i.e., cannot take your car
away without lawful justification, e.g., your consent.
5.3.2. Usually related to ownership and possession.
5.3.3. Be regarded as property in property law.
5.4. Real relations: possession and ownership of a property
5.4.1. Possession: layman term, physical possession
5.4.1.1. e.g., borrowing a book from the library: have possession but not ownership.
5.4.2. Title: right to immediate possession of the thing
5.4.2.1. Mostly used in ownership to land.
5.4.2.2. Physical aspect of land: existence of different rights over the same piece of
land.
5.4.2.3. Owner of the rights may not be the same.
5.4.2.4. The concept of title: determining the ownership of the rights at issue
5.4.2.5. At issue means:
5.4.2.5.1. At which point of time, and
5.4.2.5.2. Who owns what
5.4.3. Ownership of a property
5.4.3.1. Comprises a bundle of rights, including possession, e.g., leasing out.
5.4.3.2. Ownership itself can also be the subject matter of a sale, e.g., the purchase
of a flat being subject to a lease.
5.4.3.3. Ownership to a thing is indisputable – the issue of title, in lawyers’ term
5.4.3.3.1. The essential characteristic of private property: right of the owner of the
property to exclude others from the property.
5.4.3.3.2. No one excepts the owner is entitled to the thing; or
5.4.3.3.3. No other person can regard the things as his.
5.4.3.4. Unshared, that is about the content of the ownership
5.4.3.4.1. The owner’s interest in the thing is exclusive and complete; or
5.4.3.4.2. No other person can do anything cutting down of the use of the thing or
reducing the value of the thing.
5.5. Classification of property in property law, i.e., the things: realty and
personalty.
5.6. Realty or real property
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5.6.1. Particularly important in land law.
5.6.2. Comprises all interests, i.e., rights, in land other than leases.
5.6.3. These interests are manifested in the form of rights being exercisable by the
owner of them.
5.6.4. Be regarded as property
5.7. Personal property: personalty or chattels.
5.7.1. Types: chattel real and chattel personal
5.7.2. Chattel real: lease
5.7.3. Chattels personal: see below.
6. Chattels personal: two categories – choses in possession and choses in action
6.1. Choses (things) in possession:
6.1.1. Tangible moveable, e.g., goods;
6.1.2. You can enjoy them if you have physical possession of them.
6.2. Choses in action:
6.2.1. That intangible moveable, e.g. debts, cheque, patents and copyright.
6.2.2. You can make use of it against the others will by taking a legal action only.
Property right or interest in a property4: importance for deciding whether a
right is a property right, i.e., a property or the thing:
7.1. Binding upon the third parties: relation in rem
7.2. The property right in land survives the death of its owner, as opposed to a
personal right, which ends with the life of its owner, e.g., right for service under
an employment contract.
7.3. The value of a right is enhanced if it is a property right.
7.
8.
Property law contains legal rules relating to, among others:
8.1.1. Fragmentation of ownership in a property, e.g., you, by a will, gives your
daughter the use of your house before she attains the age of 30. Afterwards,
you regain the use of the house.
8.1.2. Acquisition of interests in properties, e.g., by purchase.
8.1.3. Protection of interests in the properties, e.g., by such device as title and such
remedies as specific performance.
8.1.4. Use and control of the use of the property, especially the physical use of a
piece of land, e.g., by easement, covenants, the creation of security, and the
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Consider again the software example in Lecture 2
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planning by government etc.
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