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Lawyers
Los Angeles Guide

Property Law



Ervin - Cohen & Jessup LLP
9401 Wilshire Boulevard Ninth Floor
Beverly Hills, CA 90212
(310) 273-6333
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Property law is the area of law that governs the various forms of ownership in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights and obligations thereon.

The concept, idea or philosophy of property underlies all property law. In some jurisdictions, historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty.

The French Revolution introduced the idea of the absolute ownership of property. It is such ownership that was introduced into the civil law by the Code Napoleon. This is in contradistinction with the ideas of property in common law that remained tied to their feudal past.

Property rights are rights over things enforceable against other persons. By contrast, contractual rights, are rights enforceable against particular persons. Property rights, however, may arise from a contract, so there is an overlap between the two systems of rights. In relation to the sale of land, for example, two sets of legal relationships exist alongside one another: the personal right to sue for damages on the contract, and the proprietary right exercisable over the thing.

A separate distinction is evident where rights granted are insufficiently substantial to confer on the non-owner a definable interest right in the thing. The clearest example of these rights is the license. In general, even if licenses are created by a binding contract, they do not give rise to proprietary interests.

Property rights are also distinguished from personal rights. Practically all contemporary societies acknowledge this basic ontological and ethical distinction. In the past, groups lacking political power have often been disqualified from the benefits of property. In an extreme form this has meant that persons have become "objects" of property right, legally "things", or chattels - see slavery. More commonly, marginalised groups have been denied legal rights to own property. These include Jews in England, married women in Western societies until the late 19th century.

The dividing line between personal rights and property rights is not always easy to draw. For instance, is one's reputation property which can be commercially exploited by affording property rights to it? The question of the proprietary character of personal rights is particularly relevant in the case of rights over human tissue, organs and other body parts.

There have been recent cases of women being subordinated to the fetus, through the imposition of unwanted caesarian sections. English judges have recently made the point that such women lack the right to exclusive control over their own bodies, formerly considered a fundamental common law right. In the United States, a "quasi-property" interest has been explicitly declared in the dead body. Also in the United States, it has been recognised that people have an alienable proprietary "right of publicity" over their "persona". The patenting of biotechnological processes and products based upon human genetic material may be characterised as creating property in human life.

The concept of possession developed from a legal system whose principal concern was to avoid civil disorder. The general principle is that a person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to do so.

In the United Kingdom, the Torts (Interference with Goods) Act 1977 has significantly amended the law relating to wrongful interference with goods and abolished some longstanding remedies and doctrines.

The most usual way of acquiring an interest in property is as the result of a consensual transaction with the previous owner, for example, a sale or a gift. Dispositions by will may also be regarded as consensual transactions, since the effect of a will is to provide for the distribution of the deceased person's property to nominated beneficiaries. A person may also obtain an interest in property under a trust established for his or her benefit by the owner of the property.

It is also possible for property to pass from one person to another independently of the consent of the property owner. For example, this occurs when a person dies intestate, goes bankrupt, or has the property taken in execution of a court judgment.

Over the centuries, leases have served many purposes and the nature of legal regulation has varied according to those purposes and the social and economic conditions of the times. Leaseholds, for example, were mainly used for agricultural purposes until the late 18th century and early 19th century when the growth of cities in industrialised countries had made the leasehold an important form of landholding in urban areas.

The modern law of landlord and tenant in common law jurisdictions retains the influence of the common law and, particularly, the laissez-faire philosophy that dominated the law of contract and the law of property in the 19th century. With the growth of consumerism, consumer protection legislation recognised that common law principles that assume equal bargaining power between the contracting parties are acknowledged to work hardship when that assumption is inaccurate. Consequently reformers have emphasised the need to assess residential tenancy laws in terms of protection they provide to tenants.

 

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