The Law of Property
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Property and Democratic Deliberation: the Numerus Clausus Principle and Democratic Experimentalism in Property Law Anna Di Robilant Boston University School of Law
Boston University School of Law Scholarly Commons at Boston University School of Law Faculty Scholarship Spring 2014 Property and Democratic Deliberation: The Numerus Clausus Principle and Democratic Experimentalism in Property Law Anna di Robilant Boston University School of Law Follow this and additional works at: https://scholarship.law.bu.edu/faculty_scholarship Part of the Property Law and Real Estate Commons Recommended Citation Anna di Robilant, Property and Democratic Deliberation: The Numerus Clausus Principle and Democratic Experimentalism in Property Law, 62 American Journal of Comparative Law 367 (2014). Available at: https://scholarship.law.bu.edu/faculty_scholarship/77 This Article is brought to you for free and open access by Scholarly Commons at Boston University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarly Commons at Boston University School of Law. For more information, please contact [email protected]. PROPERTY AND DEMOCRATIC DELIBERATION: THE NUMERUS CLAUSUS PRINCIPLE AND DEMOCRATIC EXPERIMENTALISM IN PROPERTY LAW 62 American Journal of Comparative Law 301 (Issue 2 / Spring 2014) Boston University School of Law Public Law & Legal Theory Paper No. 14-27 (June 19, 2014)) Anna di Robilant Boston University School of Laww This paper can be downloaded without charge at: http://www.bu.edu/law/faculty/scholarship/workingpapers/2014.html Electronic copy available at: http://ssrn.com/abstract=2456658 \\jciprod01\productn\C\COM\62-2\COM203.txt unknown Seq: 1 18-FEB-14 8:34 ANNA DI ROBILANT* Property and Democratic Deliberation: The Numerus Clausus Principle and Democratic Experimentalism in Property Law† ABSTRACT First-year law students soon become familiar with the numerus clausus principle in property law. -
The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don't Hold Water
Florida State University Law Review Volume 3 Issue 4 Article 1 Fall 1975 The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don't Hold Water Glenn J. MacGrady Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Admiralty Commons, and the Water Law Commons Recommended Citation Glenn J. MacGrady, The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don't Hold Water, 3 Fla. St. U. L. Rev. 511 (1975) . https://ir.law.fsu.edu/lr/vol3/iss4/1 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW VOLUME 3 FALL 1975 NUMBER 4 THE NAVIGABILITY CONCEPT IN THE CIVIL AND COMMON LAW: HISTORICAL DEVELOPMENT, CURRENT IMPORTANCE, AND SOME DOCTRINES THAT DON'T HOLD WATER GLENN J. MACGRADY TABLE OF CONTENTS I. INTRODUCTION ---------------------------- . ...... ..... ......... 513 II. ROMAN LAW AND THE CIVIL LAW . ........... 515 A. Pre-Roman Legal Conceptions 515 B. Roman Law . .... .. ... 517 1. Rivers ------------------- 519 a. "Public" v. "Private" Rivers --- 519 b. Ownership of a River and Its Submerged Bed..--- 522 c. N avigable R ivers ..........................................- 528 2. Ownership of the Foreshore 530 C. Civil Law Countries: Spain and France--------- ------------- 534 1. Spanish Law----------- 536 2. French Law ----------------------------------------------------------------542 III. ENGLISH COMMON LAw ANTECEDENTS OF AMERICAN DOCTRINE -- --------------- 545 A. -
Guidance Note
Guidance note The Crown Estate – Escheat All general enquiries regarding escheat should be Burges Salmon LLP represents The Crown Estate in relation addressed in the first instance to property which may be subject to escheat to the Crown by email to escheat.queries@ under common law. This note is a brief explanation of this burges-salmon.com or by complex and arcane aspect of our legal system intended post to Escheats, Burges for the guidance of persons who may be affected by or Salmon LLP, One Glass Wharf, interested in such property. It is not a complete exposition Bristol BS2 0ZX. of the law nor a substitute for legal advice. Basic principles English land law has, since feudal times, vested in the joint tenants upon a trust determine the bankrupt’s interest and been based on a system of tenure. A of land. the trustee’s obligations and liabilities freeholder is not an absolute owner but • Freehold property held subject to a trust. with effect from the date of disclaimer. a“tenant in fee simple” holding, in most The property may then become subject Properties which may be subject to escheat cases, directly from the Sovereign, as lord to escheat. within England, Wales and Northern Ireland paramount of all the land in the realm. fall to be dealt with by Burges Salmon LLP • Disclaimer by liquidator Whenever a “tenancy in fee simple”comes on behalf of The Crown Estate, except for In the case of a company which is being to an end, for whatever reason, the land in properties within the County of Cornwall wound up in England and Wales, the liquidator may, by giving the prescribed question may become subject to escheat or the County Palatine of Lancaster. -
Chapter 6 Summary Ownership of Real Property
Chapter 6 Summary Ownership of Real Property California Real Estate Principles Estate in land - degree of ownership one holds in the land. Feudal system - all land was once owned by the king/government; Allodial System (USA) - although the government detains some rights, individuals own property without proprietary control of government. Freehold estate - the estate lasts at least a lifetime; leasehold estate - renting or leasing. Types of freehold: • Fee Simple (Fee Simple Absolute) - Owns the bundle of rights – unlimited duration; inheritable. • Fee Simple Defeasible is based on an occurrence of a specified event – conditions. • Fee Tail - Property inherited by a monarch is illegal in the United States. • Life Estate: Voluntary Life Estates or "Conventional Life Estates." o Estate in Reversion • A life estate that is deeded to a life tenant - incomplete bundle of rights during lifetime. • A reversion estate that is retained by the grantor. After death of life tenant, grantor has complete bundle of rights. o Estate in remainder: differs from the above because the remainder estate is given to a third party who is known as the remainderman. After death of life tenant, the remainderman has complete bundle of rights. o Pur Autre Vie (estate in reversion/estate in remainder) - life tenant has the incomplete bundle of rights until a third party dies. o Involuntary Life Estates are legal life estates or marital right. It is not possible to sell the property without the consent of the partner, or to own property in one name only. o Dower - a wife's interest in the husband's property; Curtesy - a husband's interest in a wife's property; Homestead - protection against unsecured debts for the party who did not sign for the loan. -
Present Legal Estates in Fee Simple
CHAPTER 3 Present Legal Estates in Fee Simple A. THE ENGLISH LAW T THE beginning of the thirteenth century, when the royal courts of justice were acquiring effective A control of the development of private law, the possible forms of action and their limits were uncertain. It seemed then that a new form of action could be de vised to fit any need which might arise. In the course of that century the courts set themselves to limiting the possible forms of action to a definite list, defining with certainty the scope of permitted actions, and so refusing relief upon states of fact which did not fall within the fixed limits of permitted forms of action. This process, of course, operated to fix and limit the classes of private rights protected by law.101 A parallel process went on with respect to interests in land. At the beginning of the thirteenth century, when alienation of land was becoming possible, it seemed that any sort of interest which ingenuity could devise might be created by apt terms in the transfer creating the interest. Perhaps the form of the gift could create interests of any specified duration, with peculiar rules for descent, with special rights not ordinarily in cident to ownership, or deprived of some of the ordinary incidents of ownership. As in the case of the forms of action, the courts set themselves to limiting the possible interests in land to a definite list, defining with certainty 1o1 Maitland, FoRMS OF ACTION AT CoMMON LAW 51-52 (reprint 1941). 37 38 PERPETUITIES AND OTHER RESTRAINTS the incidents of permitted interests, and refusing to en force provisions of a gift which would add to or subtract from the fixed incidents of the type of interest conveyed. -
Get a Glossary of Terms Used in the Title Industry
GLOSSARY A Abstract Plant – A geographically arranged abstract plant, currently kept to date, that is adequate for use in insuring titles, so as to provide for the safety and protection of the policyholders. An abstract plant as further defined in Rule P-12 and as further provided for in the Insurance Code, Chapter 2501.003 and Chapter 2502, must include an abstract plant for each county in which a title insurance agent or direct operation maintains an office. Abstract of Title - A compilation of all the recorded documents relating to a parcel of land. Usually kept by the land owner and used as the basis for an attorney as to the condition of title. Still in use in some states, and in some areas of Texas, but mostly replaced by issuance of title insurance. Abstract of Judgment – A lien created by a statutory filing of a court judgment in the real property records. This lien, commonly referred to as an AJ (in Texas), attaches to all non- exempt real property of the person or entity that the judgment was against. Acceleration Clause (in a mortgage) – Specifies conditions under which the lender may advance the time when the entire debt which is secured by the mortgage becomes due. For example, most mortgages contain provisions that the note shall become due immediately upon the sale of the securing land without the lender's consent or upon failure of the landowner to pay an installment when due. Access – The right to enter and leave a tract of land from a public way. Can include the right to enter and leave over the lands of another. -
6/17/97 in the Court of Appeals of the State of Mississippi
6/17/97 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 94-CA-00125 COA CAROLYN HARRIS HYNSON APPELLANT v. JOHN L. JEFFRIES AND MALCOLM COOPER, CO- TRUSTEES OF THE ROBERT C. HYNSON MARITAL DEDUCTION TRUST; E. BROOKE FERRIS, III, GUARDIAN AD LITEM OF ROBERT C. HYNSON II, A MINOR; WILLIAM W. SUMRALL, GUARDIAN AD LITEM OF BROOKS R. EASTERLING AND WILLIAM H. EASTERLING, MINORS; SALLY BLANKENSHIP AND FRED CHANDLER APPELLEES MANDATE ISSUED: 7/8/97 BEFORE THOMAS, P.J., AND DIAZ AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT: The only issue in this case is whether the owner of a life estate in a trust that contains producing oil and gas properties will receive the entire royalties from those minerals, or whether the royalty must be invested and the life tenant receive only the interest on that investment. The chancellor found that under the common law doctrine of waste the life tenant would receive only the interest on the royalties, while the royalty itself would be added to corpus and later be received by the remaindermen. We hold that the chancellor erred in finding that the Mississippi Uniform Principal and Income Law was inapplicable. We reverse and remand for further proceedings. FACTS Robert C. Hynson was the owner of substantial oil and gas properties. At his death, he left a detailed last will and testament, prepared by a highly competent and experienced attorney. The provisions that are relevant for this dispute are found in Item VII. In summary, the will gave to trustees of the Robert C. -
VACARIA, a Void Place, Or Waste Ground
[ 323 ] U AND V.. VAGRANTS. VACARIA, A void place, or waste ground. Mem. in Scacc. Mich, 9 Edw. 1 . VACATING RECORDS; See title Record. VACATION, Vacatio.~\ Is all the time between the end of one Term and the beginning of another; and it begins the last day of every Term, as soon as the Court rises. The time from the death of a bishop, or other spiritual person, till the bishopric or dignity is sup plied with another, is also called Vacation. Stats. Westm. 1. c. 21: 14 Edw. 3. st. 4. c. 4. VACATURA, An avoidance of an Ecclesiastical Benefice; as prima Vacatura, the first Avoidance, isfc. VACCARY, Vaccaria. A house or place to keep cows in; a Dairy- house, or Cow-pasture. Fleta, lib. 2. VACCARIUS, The Cow-herd, who looks after the common herd �of cows. Fleta. VADIARE DUELLUM, To wage a combat, where two contend ing parties, on a challenge, give and take a mutual pledge of fighting. Cowell. See title Battel. VADIUM PONERE, To take security, bail or pledges, for the appearance of a defendant in a Court of Justice. Reg. Orig. See Pone. VADIUM MORTUUM; See Mortgage. VADIUM VIVUM, A living Pledge; as when a man borrows a sum of another, and grants him an estate, as of 20/. fier annum, to hold until the rents and profits shall repay the sum borrowed. See Mortgage. VAGABOND, Vagabundus .] One that wanders about, and has no certain dwelling; an idle fellow. See Vagrants. VAGRANTS. Vagrantes.] These are divided into three classes; viz. Bile and Disorderly Persons�Rogues and Vagabonds�and Incorrigible Rogues: And are thus described and particularised at full length in the stat. -
Optimal Standardization in the Law of Property: the Numerus Clausus Principle
Article Optimal Standardization in the Law of Property: The Numerus Clausus Principle Thomas W. Merrill, and Henry E. Smith" CONTENTS I. INTRODUCTION ................................................................................... 3 II. THE NUMERUS CLAUSUS IN THE COMMON LAW OF PROPERTY .............. 9 A. The Numerus Clausus as a Norm of JudicialSelf-Governance ....... 9 B. The Common Law's Standardizationof Property....................... 12 1. Estates in Land ................................................................... 12 2. ConcurrentInterests ........................................................... 14 3. Nonpossessory Interests....................................................... 16 4. Interests in PersonalProperty ............................................ 17 5. Intellectual Property........................................................... 19 C. JudicialRecognition of the Numerus Clausus ........................... 20 D . Sum m ary..................................................................................... 23 t John Paul Stevens Professor of Law, Northwestern University. t" Associate Professor of Law, Northwestern University. The authors would like to thank Charlotte Crane, Bob Ellickson, Richard Epstein, Clay Gillette, David Haddock, Henry Hansmann, Michael Heller, Jim Krier, John Langbein, Richard McAdams, Fred McChesney, Eric Posner, Eric Rasmusen, Carol Rose, Bob Scott, Marshall Shapo, Dick Speidel, Jim Speta, Debra Stark, and the participants at a Northwestern faculty workshop and at the 2000 annual -
Question 5 Prior to 1975, Andy Owned Blackacre in Fee Simple Absolute. In
Question 5 Prior to 1975, Andy owned Blackacre in fee simple absolute. In 1975, Andy by written deed conveyed Blackacre to Beth and Chris “jointly with right of survivorship.” The deed provides: “If Blackacre, or any portion of Blackacre, is transferred to a third party, either individually or jointly, by Beth or Chris, Andy shall have the right to immediately re-enter and repossess Blackacre.” In 1976, without the knowledge of Chris, Beth conveyed her interest in Blackacre to Frank. In 1977, Beth and Frank died in a car accident. Frank did not leave a will and his only living relative at the time of his death was his cousin Mona. In 1978, Chris and Andy learned that Beth had conveyed her interest in Blackacre to Frank. When Mona approached Chris a day later to discuss her interest in Blackacre, Chris told her that he was the sole owner of Blackacre and she had no interest in Blackacre. Chris posted “No Trespassing” signs on Blackacre. He also paid all of the expenses, insurance, and taxes on Blackacre. Andy and Mona have never taken any action against Chris’ possession of Blackacre. 1. What right, title, or interest in Blackacre, if any, did Andy initially convey to Beth, Chris, and himself? Discuss. 2. What right, title, or interest in Blackacre, if any, are held by Andy, Chris, and Mona? Discuss. 56 Answer A to Question 5 1. WHAT RIGHT, TITLE OR INTEREST IN BLACKACRE DID ANDY INITIALLY CONVEY TO BETH, CHRIS, AND HIMSELF? Andy owned Blackacre in fee simple absolute, which indicates absolute ownership and means he had the full right to convey Blackacre. -
UNDERSTANDING INDEFEASIBILITY UNDER the VICTORIAN TRANSFER of LAND ACT by BERNARD O'brien*
UNDERSTANDING INDEFEASIBILITY UNDER THE VICTORIAN TRANSFER OF LAND ACT By BERNARD O'BRIEN* INTRODUCTION The central concept in Torrens system legislation is the principle of indefeasibility. It is commonly thought that once a title is recorded on the register, not only is the title created by the act of registration, but upon registration the statute will guarantee the validity of that title and confer upon it an immunity from any attack. Whilst it seems to be universally acknowledged that indefeasibility will result from the registration of title, controversy nonetheless exists as to when indefeasibility will attach to a registered title. The line of battle is drawn between those who favour the view of immediate indefeasibility and those who prefer the concept of deferred indefeasibility. It is dubious whether the various protagonists in this debate can be all grouped behind such simple labels. For instance, the deferred indefeasibility camp in turn divides according to two basically different approaches. There are those who rest their case on the basis that the registration of a void instrument cannot confer an indefeasible title in favour of the registrant even when that person is a bona fide purchaser for value.1 Alternatively, there are those who place paramount importance on s.43 of the Transfer of Land Act 1958 as being fundamental to the statutory scheme of indefeasibility.2 That section can be briefly described as providing that when a transferee of a registered proprietor deals with the registered proprietor he shall be relieved of the requirements of notice. The proponents of this view argue that this provision implies that indefeasibility only attaches to those titles which have been registered by a person who has acquired his title and entered the transaction on the faith of the register. -
Usufruct Study Guide
Article 562 ± 578 1. Define usufruct. Usufruct is a real right by virtue of which a person is given the right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law provides otherwise. 2. What are the three fundamental Rights Appertaining to Ownership? Ownership consists of three fundamental rights, to wit: - jus disponende (right to dispose) - jus utendi (right to use) - jus fruendi (right to the fruits) 3. Of the above-mentioned fundamental rights, what consists usufruct and naked ownership? The combination of the jus utendi and jus fruendi is called usufruct. The remaining right jus disponendi is really the essence of what is termed ³naked ownership´. 4. What right is transferred to the usufructuary and what right is remained with the owner? In a usufruct, only the jus utendi and jus fruendi over the property is transferred to the usufructuary. The owner of the property maintains the jus disponendi or the power to alienate, encumber, transform, and even destroy the same. (Hemedes vs. CA, 316 SCRA 347 1999). 5. What are the formulae with respect to full ownership, usufruct, and naked ownership? The following are the formulae: - Full Ownership equals Naked Ownership plus Usufruct - Naked Ownership equals Full Ownership minus Usufruct - Usufruct equals Full Ownership minus Naked Ownership 6. What are the characteristics or elements of usufruct? The following are the characteristics or elements of usufruct: ESSENTIAL CHARACTERISTICS: those without which it can not be termed usufruct: (a) It is REAL RIGHT (whether registered in the Registry of Property or not).