Definition of land
Land in law is normally defined as what it is composed of, therefore land includes the surface of the earth i.e. soil and every surface such as buildings, vegetation, water bodies, minerals and the space above the earth surface[1]. And that matter that is why land law is called/ referred to as the law of real property[2].
Definition of property
Property refers to anything that which belongs to a person for example one’s belonging may be tangible[3]. Personal property which is defined as something you can touch and move while intangible personal property is that property that has no physical existence for example stocks bonds, bank notes, trade secrets, copy rights, trademarks and so on
We should note that tangible personal property can be represented with a certificate/ license.
Property is classified in two categories
· Real property/ reality
This refers to immovable property as well as rights derived or obtained from such property and here we refer to soil itself, building, minerals and all other things which form part of or are attached to land[4]
· Personal property / chattels
This refers to chattels, it can be defined as property that can be moved, and it is also called personality
As land law is referred to as the law of real property the following are differences between real and personal property
Real property is immovable property that cannot be moved from one place to another for example land cannot be moved from one place to another while personal property is movable property which can be moved transferred from one place to another. Mirrors, tables, chairs, books
Since property in real property immovable, rights are derived from such property like the right to way called easements, right to collect water from another’s land called profits apprendre, fire wood while personal property the owner of property enjoys individually his rights and can decide what to do with his property any time he wants
In real property fixtures are attached to land so that they become part of land(as the cardinal principle such objects are called chattels while in personal property chattels exist and can be moved from one place to another however tests are carried out under real property by a court / judge to determine what amounts to a fixture.
Rights under real property are recognized by law and enjoyed by any one person provided such rights exist on that land while in personal property sometimes, aright may be enforced by an action in court or through a choice of action that arises under a contract for example: If C owes D a sum of money, the debt is intangible and cannot be physically possessed, so D can enforce his right by suing on a contracting order to recover the money owed to him. Other examples are shares, bank notes, copy rights, bonds and so on[5].
Concept of possession in real property under original claim for example where land has never been acquired by any one (virgin land) a person who therefore clears it and puts it to productive use, such a person acquires original claims or through inheritance while personal property a person just possess. We should note that there is also ownership by derivative means, where property is acquired from its original or current owner who at the time abandons the property and hence its ownership is said to have been obtained from the previous owner[6].
In real property chattels are attached to land so that they become part of land for example if an object is placed on land, it loses its character as a chattel and it becomes part of land as the cardinal principle of common law that whatever is attached to soil is part of soil (Quit Quid Plantarus Solo Solo Credit)[7]
Chattels under personal property can be removed separated from land without it losing its identity, prima facie a chattel can remain a chattel & the other as a fixture while in real property which is immovable is permanent fixture that cannot be transferred from one place to another[8]. For example in the case of Webb v Beris[9], it was found that concrete was separated from entire structure and the super structure could be removed without destroying the foundation and that therefore, the super structure was a chattel
In personal property a person may want or have an intention to make an object part of land which depend on the weight of the object as it was put forward in the case of Holland v Hodgson[10], that the true rule is that articles which are attached to the land by their own weight cannot be part of land and that is why there is the degree of annexation i.e. Syper v Philiphson[11], noted that comparatively durable method of annexation will not make fixture/ chattel under personal property , objects can be separated in two parts
· As a chattel
· A fixture
Therefore the removable part is a chattle while in real property, property cannot be separated, and for example land is immovable including the surface of the earth, soil, minerals, vegetation, space above the earth.
For example in the case of Webb v Beris[12], it was found that concrete was separated from entire structure and the super structure could be removed without destroying the foundation and for that matter the supper structure was a chattle.
Under real property an object which is a fixture, such an object cannot be removed because it’s part of soil as the cardinal principle of common law (quit quid plantarus solo solo credit) meaning that whatever is attached to soil is part of soil while if it is removed by express agreement or if it falls under common law exceptions to the general rule and parties agree on the time of termination tenancy then it can be called personal property and absolute owner of land will compensate the tenant for the fixtures. Fixtures that were developed in common law are trade fixtures attached by the tenant for purposes of his / her trade.
Tenant fixtures: these are removable by the tenant,
Ornamental domestic: fixtures these are chattels fixed to a building for ornament or convenience purposes for example dressing mirror on the wall, agricultural fixtures regarded as normal use of the land[13].
However there are some similarities between real and personal property.
In real and personal property there is ownership of property whether immovable or movable. Intangible or tangible
In both, tangible rights exist. Under real property for example land. It can be physically touched therefore tangible and in personal property objects like cars, chairs, and table are tangible and can be touched. Under both properties, rights exists for example in personal property a person has the right to move his property form one place to another and also chose in action which is an intangible right that can be physically possessed and can enforce such a right fro example a debt by an action in court, this normally arises in contract.
In real property the rights that are derived are, a right of way which is called easements, to collect firewood, water from another land called profits apprendre.
In both properties there is a concept ownership as a state/ fact of an exclusive right and control over property, possession, a state of having or owing something as Meggary’s mannal of Law of Real Property[14] says that even if the building was constructed using stolen materials they all in law become a gift to the ultimate owner of the land, because whatever is attached to the soil is part of soil as the cardinal principle states it.
In both properties there is land as the main concept as land is defined by what it is composed of as soil, minerals, space above the earth surface and chattels that are attached to land and become part of the land for example in the case of Bushland v Butterfield[15] , it was found that there was sufficient connection of a verandah to the house to make the verandah part of the building.
Both personal and real property have benefits to the owner and the community in a way that since whatever is attached to soil is part of soil, if a person constructs a building for commercial use, people will be employed on such building to work and earn a living and on land itself we can get firewood to cook food, water for domestic use
In conclusion, Real and Personal property are divisions of property and people have a possessive attitudes towards their property in which have differences and similarities
REFERENCE
Principle Of Land Law by John Mugambwa Meggary And Wade 7th Edition Cheshire And Burn [1] Principle of land law by John Mugambwa
[2] Principle of land law by John Mugambwa
[3] Principle of land law by John Mugambwa
[4] ibid
[5] Cheshire and Burn chapter 10 ESP
[6] Meggary and Wade 7th Edition
[7] Principle of land law by John Mugambwa
[8] Principle of land law by John Mugambwa
[9] [1940] 1ER 247
[10] 1872 LR 7 CP 328-334
[11] (1931) CIT 183
[12] ibid
[13] Cheshire and Burn
[14] Meggary and Wade
[15] 1920 20 board and Bing law report
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