Property Law

• Author: Jeffrey Lehman, Shirelle Phelps

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There are two types of property: real property and PERSONAL PROPERTY. Most of the legal concepts and rules associated with both types of property are derived from English COMMON LAW. Modern law has incorporated many of these concepts and rules into statutes, which define the types and rights of ownership in real and personal property.

Personal property, also referred to as movable property, is anything other than land that can be the subject of ownership, including stocks, money, notes, PATENTS, and copyrights, as well as intangible property.

Real property is land and ordinarily anything erected on, growing on, or affixed to it, including buildings and crops. The term is also used to declare any rights that issue from the ownership of land. The terms real estate and real property generally refer to land. The term land, in its general usage, includes not only the face of the earth but everything of a permanent nature over or under it, including minerals, oil, and gases. In modern usage, the word premises has come to mean the land itself or the land with all structures attached. Residential buildings and yards are commonly referred to as premises.

The difference between real property and personal property is ordinarily easily recognizable. The character of the property, however, can be altered. Property that is initially personal in nature becomes part of realty by being annexed to it, such as when rails are made into a fence on land.

In certain cases, however, the intention or agreement of the parties determines whether property that is annexed retains its character as personal property. A LANDLORD AND TENANT might agree that the new lighting fixture the tenant attaches to the ceiling of her dwelling remains the tenant's property after the expiration of the lease.

Property may be further classified as either private or public. Private property is that which belongs to one or more persons. Public property is owned by a country, state, or political subdivision, such as a MUNICIPAL CORPORATION or a school district.

Personal Property

Personal property can be divided into two major categories: tangible and intangible. Tangible property includes such items as animals, merchandise, and jewelry. Intangible property includes such rights as stock, bonds, patents, and copyrights.

Possession Possession is a property interest under which an individual to the exclusion of all others is able to exercise power over something. It is a basic property right that entitles the possessor to continue peaceful possession against everyone else except someone with a superior right. It also gives the possessor the right to recover personal property (often called chattel) that has been wrongfully taken and the right to recover damages against wrongdoers.

To have possession, an individual must have a degree of actual control over the object, coupled with an intent to possess the object and exclude others from possessing it. The law recognizes two types of possession: actual and constructive.

Actual possession exists when an individual knowingly has direct physical control over an object at a given time. For example, an individual wearing a particular piece of jewelry has actual possession of it. Constructive possession is the power and intent of an individual to control a particular item, even though it is not physically in that person's control. For example, an individual who has the key to a bank safe-deposit box, which contains a piece of jewelry that she owns, is said to be in constructive possession of the jewelry.

Lost, Mislaid, and Abandoned Property Personal property is considered to be lost if the owner has involuntarily parted with it and does not know its location. Mislaid property is that which an owner intentionally places somewhere with the idea that he will eventually be able to find it again but subsequently forgets where it has been placed. Abandoned property is property to which the owner has intentionally relinquished all rights.

Lost or mislaid property continues to be owned by the person who lost or mislaid it. When a person finds lost goods, the finder is entitled to possession against everyone with the exception of the true owner.

The finder of lost articles on land belonging to someone else is entitled to possession against everyone but the true owner. However, if the finder of the misplaced goods is guilty of TRESPASS, she has no right to possess the goods. The owner of the place where an article is mislaid has

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a right to the article against everyone else but the true owner. Abandoned property can be possessed and owned by the first person who exercises control over it with an intent to claim it as his own. In any event, between the finder of a lost, mislaid, or abandoned article and the owner of the place where it is found, the law applies whatever rule will most likely result in the return of the article to its rightful owner.

Ordinarily when articles are found by an employee during and within the scope of her employment, they are awarded to the employer rather than to the employee who found them.

Treasure trove is any gold or silver in coin, plate, or bullion that is hidden by an unknown owner in the earth or other private place for an extended period. The property is not considered treasure trove unless the identity of the owner cannot be determined. Under early common law, the finder of a treasure trove took title to it against everyone but the true owner. The U.S. law governing treasure trove has been merged, for the most part, into the law governing lost property. In the absence of a contrary statutory provision, the title to treasure trove belongs to the finder against all...