Property, an object of legal rights, which embraces possessions or wealth collectively, frequently with strong connotations of individual ownership. In law the term refers to the complex of jural relationships between and among persons with respect to things. The things may be tangible, such as land or goods, or intangible, such as stocks and bonds, a patent, or a copyright.
Every known legal system has rules that deal with the relations among persons with respect to (at least) tangible things. The extraordinary diversity of the property systems of non-Western societies, however, suggests that any concept of property other than the descriptive one is dependent on the culture in which it is found. Because property law deals with the allocation, use, and transfer of wealth and objects of wealth, it must reflect the economy, family structure, and politics of the society in which it is found.
Very few, if any, non-Western societies generalize about property in the way that Western legal systems do. What distinguishes the Western property system from the systems of most, if not all, other societies is that its category of private property is a default category. Western legal systems regard individual ownership as the norm, derogations from which must be explained. The legal concept of property in the West is characterized by a tendency to agglomerate in a single legal person, preferably the one who is currently in possession of the thing in question, the exclusive right to possess, privilege to use, and power to convey the thing.
In classical Roman law (c. ad 1â250), the sum of rights, privileges, and powers that a legal person could have in a thing was called dominium, or proprietas (ownership). The classical Roman jurists do not state that their system tends to ascribe proprietas to the current possessor of the thing but that it did so is clear enough. Once the Roman system had identified the proprietarius (the owner), it was loath to let him convey anything less than all the rights, privileges, and powers that he had in the thing.
The medieval English legal system similarly showed the tendency at critical points to agglomerate property rights in a single individual. A notion of property in land emerged at the end of the 12th century in England from a mass of partly discretionary, partly customary, feudal rights and obligations. What began as essentially an appellate jurisdiction, offered by the king in his court to ensure that a feudal lord did right by his men, ended with the free tenant being the owner of the land, in a quite modern sense, with the lordâs rights limited to receipt of money payments.
The fundamental tendency in Western property law to agglomerate property rights in a single individual is probably not the product of the influence of a particular philosophical idea or the dominance of one social group over another or even of a balancing of social interests. As the need arose for a category to describe the sum of the rights, privileges, and powers that an individual could have with respect to a thing, the Romans, followed by the English, chose a noun derived from an adjective that means âown.â The category at once described the concept and also the tendency. As time went on, the tendency took on an independent life. Western law excluded from the category âpropertyâ certain rights, privileges, and powers with respect to a thing because they existed in someone other than the property holder. In modern legal systems, though not in the Roman, property came to represent one of the rights of the individual against the state, perhaps originally because property had come to rest in the freeholder and not in his lord, and the king was the lord of all.
In Western law today, most tangible things may be the object of property, although certain kinds of natural resources, such as wild animals, water, and minerals, may be the object of special rules, particularly as to how they are to be acquired. Because Western law gives great emphasis to the concept of possession, it has had considerable difficulty in making intangible things the object of property. Some Western legal systems still deny the possibility of property in intangibles. In all Western legal systems, however, the great increase of wealth in the form of intangibles (stocks, bonds, bank accounts) has meant that property or property-like treatment must be given to such intangibles. Certain government-created rights such as patents and copyrights have traditionally been treated as property. Others, such as the right to receive social-insurance payments, have not normally been so treated, although there appears to be some tendency to treat these rights as property also. (This is the ânew propertyâ of recent writing.)
The use of property, particularly property in land, is extensively regulated throughout the West. Neighbours injured by adjoining land uses may sue in nuisance in the Anglo-American countries. Similar actions exist in the civil-law countries. Throughout the West, landowners may agree to allow others to use their land in ways that would otherwise be actionable, and such agreements may be made to bind those to whom the land is conveyed. Anglo-American law tends to divide these grants of use rights into categories that reflect their common-law origins: easements (such as rights of way), profits (such as the right to take minerals or timber), real covenants (such as a promise to pay a homeownersâ association fee), and equitable servitudes (such as a promise to use the property for residential purposes only). The civil law does not have as many categories, the category of âservitudesâ tending to cover for them all, and the civil law is a bit more restrictive. Most of the same practical results, however, can be achieved in civil-law countries as in Anglo-American.
Throughout the West, public regulation of land use has increased dramatically in the 20th century. Most familiar is zoning, the division of a given area into districts with limitations on the types of land use (such as residential, commercial, or industrial). Extensive regulation of types of building (such as height or density) and of materials and methods of construction (building codes) is also very common. When public authorities cannot achieve their purposes through regulation, they may âexpropriateâ the land. This occurs, for example, when land is acquired by government for construction of a highway or by a utility company for creation of a reservoir. Such expropriation may not be a voluntary exchange between the parties, but compensation for property value is commonly provided.
Throughout the West, property may be acquired by various âoriginal modesâ of acquisition. For instance, âoccupancyâ is a means of original acquisition when the thing possessed belonged to no one formerly. A thing can also be acquired if someone possesses it for a certain period of time as if he were the owner. This is called âacquisitive prescriptionâ in civil-law countries, âadverse possessionâ in Anglo-American countries. The privileges conferred by public authorities, such as rights to mineral resources in the public domain or to exclusive use of an invention, can be viewed as types of original acquisitions.
A far more common means of acquiring property is by transfer from the previous owner or owners (âderivative acquisitionâ). Most forms of such transfer are voluntary on the part of the previous owner. âSale,â the voluntary exchange of property for money, is the most common of these. A âdonation,â or gift, is another voluntary form. Succession to property upon death of the previous owner is a central concept in nearly all property systems and falls into the category of derivative acquisition. In the West, succession may by dictated by a will made by the deceased or by the laws of intestacy, statutes that determine the distribution of property in the event the deceased left no will. Other instances of derivative acquisition are involuntary. A bankrupt person, for example, may have property sold by judicial sale to pay his debts.
