Real Property Mid-Semester

translation of quicquid plantatur solo, solo cedit

whatever is attached to the ground becomes a part of it

s2 of the Barbados Property Act, Cap 236

'land' means the surface of the earth, the space above it and the things below it, including houses and other structures

s3 of the Jamaica Conveyancing Act 1889

'land'… includes… houses and other buildings

When was the Jamaica Conveyancing Act established?

1889

When was the Norman Conquest?

1066

What is subinfeudation?

Many petty lords were created between the great barons and the immediate tenants of the soil

When was the Quia Emptores statute created?

1290

How long did subinfeudation continue?

200 years

What was the effect of the Statute Quia Emptores?

Actual land occupants appeared as the absolute owner; there was to be no more subinfuedation
Consent of the feudal lord no longer required (holder of a free tenure could freely pass land)

Who said "Property' is used to signify things which are the subject matter of ownership"

Owusu

Define property.

the power relationship between a person and something of value

What are the three property rights?

the right to exclude, the right to enjoyment, and the power of transfer

What is another name for usufructuary rights?

the right to enjoyment

What are the two types of power of transfer?

inter vivos disposition and testamentary disposition

What is meant by inter vivos disposition?

A trust created to take effect in the lifetime of the seller (transfer when alive)

What is meant by testamentary disposition?

A provision in a will that disposes of a part, or all, of the testator's estate (transfer after death)

What is an incumbrance?

restrictions and obligations incurred by a land owner by virtue of other persons who have rights of the land in question (neighbours, tenants, co-owners, or in the presence of restrictive covenants preventing certain conduct)

What is the doctrine of estates?

A person cannot OWN land. One can own only an interest in land.

What estates exist in common law?

1. fee simple/freehold
2. leasehold
3. life estate
4. fee tail

What is the significance of January 1, 1997

No new fee tails could be created hereafter.

What are the two classifications of property?

Realty and Personalty

Actio realis

you have the right to recover exactly what was lost

cuius est solum eius est usque ad coelum et ad inferos

whoever's is the soil, it is theirs all the way up to heaven and all the way down to hell

Realty

The land and all the rights & interests attached to the land

Personalty

All property outside of land & the rights associated with them

Corporeal

Physical objects which can be touched, felt, and are visible (land, clothes, tables)

res corporales

corporeal

Incorporeal

intangible things, no physical existence (patents, copyrights, trademarks, land rights like easements)

res incorporales

incorporeal

chose in action

personal property that is intangible

chose in possession

personal property with a tangible element

fixture

material things physically attached to the land so that they become part of the realty and the property of the land owner

chattel

a physical object that never becomes attached to the land, although placed in some close relation with it; does not pass in conveyances

What tests help determine fixture vs chattel?

the degree and purpose of annexation tests

What does the degree of annexation test purport?

The more firmly or irreversibly the object is affixed to the earth or a building thereon, the more likely is the object to be classified as a fixture

Which of the following is not a fixture:
panel doors, a/c units, bathroom fittings, printing machinery

printing machinery

Berkley v Poulett (1977) says

‘if an object cannot be removed without serious damage to, or destruction of some part of the realty, the case for its having become a fixture is a strong one'

What does the purpose of annexation test purport?

asks why the object has been attached: for its own purpose, or for the enhancement of the land

La Salle Recreations Ltd v Canadian Camdex Investments Ltd (1969)

whereas carpets in a private home will usually be regarded as chattels, it has been held that wall-to-wall carpeting affixed to the floors of a hotel was a fixture

Tenure

conditions under which land is held

Post-Stature Quia Emptores how could a landowner grant possession to another?

Only by outright alienation (substitution)

Describe the feudal structure

All land was owned by the King who gave them those loyal to him on conditions (tenures) and for a certain duration (estates). Those holding directly from the King were tenants-in-chief, and below them, mesne lords and mesne tenants. Actual land occupiers were mostly peasants,

What are the 3 main types of free tenures?

Tenure in chivalry, tenures in socage & spiritual tenure

How can tenures in chivalry be further subdivided?

Knight service & grant sergeanty

How can tenures in socage be further subdivided?

Petty sergeanty - making arrows, shields, weapons
Socage - began as agricultural service and evolved in monetary payments

How can spiritual tenure be further subdivided?

frankalmoign & divine service

What is another name for unfree tenures?

Villienage

Who was at the bottom of the feudal pyramid?

Villiens

When was the Black death

1349, 1361

When was the Peasant's Revolt

1381

What was the effect of the Peasant's Revolt

The bargaining power of peasants was strengthened

When was the Tenures Abolition Act put in place?

1660

What effect did the Tenures Abolition Act have?

It abolished the burdensome elements of tenure (no longer rendering services, just paying rent)

Escheat

The Crown is the beneficial owner of all lands

Bona vacantia

means vacant goods and is the name given to ownerless property, which by law passes to the Crown

Forfeiture

Reversion of land to the grantor of an estate

What does S5(1) of the Barbados Property Act 1980 say?

all feudal tenure of land is hereby abolished

Radical title

refers to the state/the crown having ultimate title to the land (owning all lands)

When was Trinidad & Tobago's Distribution of Estates Act established

2000

Where does forfeiture apply?

To certain types of fee simple that can be determined in ways other than death without heirs

Differentiate between ceded and settled territories

Ceded territories, also known as conquered territories, are land previously owned by some other "civilized (European) nation" (ex. ja from Spanish to British) vs Settled territories which are those deemed terra nullius (nobody's land) despite some native group inhabiting it

Native Title

refers to the interest held in land by indigenous people who have customarily occupied it

Where did the Mabo case take place?

Australia

What principle came from Mabo

If the land was truly terra nullius, the Crown had a radical title, but if indigenous people occupied it, they must be considered. If the land rights of these natives are capable of being recognized by common law, then the Crown has no radical title to them.

In what year was the Mabo case?

1992

Where did the Amodu Tijani case take place?

Nigeria

When did the Amodu Tijani case take place?

1927

What principle came from the Amodu Tijani case?

A mere change in sovereignty is not presumed to displace the rights of private owners

When did the case of Cal v AG of Belize take place?

2007

Principle in Cal v AG of Belize

a change in or acquisition of a sovereign does not extinguish pre-existing rights

When did the Maya Leaders Alliance (Belize) case take place?

2005

What 2 rights were called into question in Maya Leaders?

The right against arbitrary deprivation of land
The right to protection of land

Which country has constitutional provisions protecting indigenous ways of life?

Guyana (149G)

In what ways can private land rights be extinguished?

1. prerogative powers of a sovereign
2. consent or statute
3. where the customs related to the native title have evaporated over time (state can now claim)
4. if the land is passed to a non-native

Which statute first allowed the holder of a fee tail to pass a fee simple absolute?

Fines and Recoveries Act (1833)

Which statute first allowed a life tenant to deal with and transact upon an interest larger than that which they hold?

Settled Land Act

What is an estate?

An estate is an interest in land

What are the 2 future interests that exist?

Reversionary interests and remainder interests

What is a reversionary interest?

A future interest retained by the grantor of land after the grant of some smaller interest

What is a remainder interest?

A future interest given to someone which is vested as a possessory right at the end of another interest created by the grant

What are the three freehold estates?

fee simple, fee tail, life estate

What are the types of fee simple?

fee simple absolute, fee simple determinable, fee simple under condition subsequent

Which case establishes the importance of words of limitation?

Noel v Noel (1959)

What cases speak to words of limitation?

Noel v Noel (1959), Gordon v Burke (1970)

What English Act added the words "in fee simple" as effective words of limitation?

the Conveyancing Act of 1881

The Jamaican Conveyancing Act, s. 52

The use of no formal words is necessary in order to convey lands, or tenements, or hereditaments, corporeal or incorporeal.

When is a fee simple absolute determined?

Upon a failure of both lineal and collateral heirs

When is a determinable fee simple determined?

when there is a failure of lineal/collateral heirs OR on the occurrence of some specified event which may never occur

What happens when a determinable fee simple is determined?

The grantor has a possibility of reverter, and the grant is deemed to have ended with immediate effect (does not require a positive action by the grantor)

When is a fee simple upon condition subsequent determined?

When there is a failure of heirs OR upon the meeting of some condition which may or may not occur

What happens when a fee simple upon condition subsequent is determined?

The grantor has a right to re-entry and can choose to retake possession of the property in question. However, this does not automatically bring the grant to an end (a vitiated condition would not uproot the entire grant)

In what act did fee tail estates arise?

Statute de Donis Conditionalibus (1285)

What is the rule in Shelley's case?

If in a single grant a freehold estate is given to a person and a remainder is given to the person's heirs, the remainder belongs to the named person and not the heirs, so that the person is held to have a fee simple absolute.

What are the two distinctions of life estates?

sa vie- for the life of the grantee
pur autre vie - for the life of another named person

The Statute of Frauds (1677)

It required that certain types of contracts, wills, and grants, and assignment or surrender of leases or interest in real property must be in writing and signed to avoid fraud on the court by perjury and subornation of perjury

Which act says that the estate will pass to the deceased's personal represenetative?

The Statute of Frauds 1677

What is meant by the notion of general occupancy?

The life estate pur autre vie passes to the first person to obtain possession of the property (abolished with the statute of frauds)

What is required for the creation of fee tails?

Words of purchase, limitation, procreation

What happens to a life estate sa vie when it is transferred to another person?

It becomes a life estate pur autre vie (the measure of the estate remains the same)

Settlement

the existence of successive interests in land created by a single grant (eg remainder interest on a life estate)