Modern Anglo-American property law provides at least potentially for the ownership of nearly all things that have or may have value. The terminology and much of the content of modern property law stem from its origins in feudalism. The fundamental division is into realty (or real estate or real property) and personalty (or personal property). (For rules affecting marital property, see husband and wife; for certain special types of property, see copyright and patent.)Realty
Realty is chiefly land and improvements built thereon. Sometimes it is comprehensively, but loosely, described as lands, tenements (holdings by another's authority), and hereditaments (that which is capable of being inherited). Formerly its chief characteristics in a legal sense were that it went by descent to the heir of the owner (who had no control over its disposition) and that ownership might be recovered from any other party by a lawsuit (a so-called real action). Also possessing such characteristics, and hence classified as real property, were titles of honor, heirlooms, and advowsons, i.e., rights to sell ecclesiastical benefices. The manner in which realty is owned is called an estate; specifically, ownership is a fee of some sort, for example, an estate in fee simple (see tenure).Personalty
Personal property consists chiefly of movables, that is, portable objects. Typically (but by no means invariably) the owner can by will, gift, or sale determine its distribution (note the contrast with the term descent), and if it has been wrongly taken, a lawsuit (a so-called personal action) will recover damages but will not restore the object. Certain types of interests in land are also classified as personalty; examples are leases for a period of years, mortgages, and liens.Limits on Ownership
The need for unobstructed intercourse between nations prohibits the assertion of ownership of the high seas, and special rules apply to territorial waters (see waters, territorial) and to domestic navigable water. Air space beyond that which can be used by airplanes is often considered not subject to ownership. In a sense, all land presently or ultimately belongs to the state, for whatever is not actually owned by the public authority may be transferred to it by escheat (when there is no heir to the owner) or in condemnation proceedings under the power of eminent domain. In fact, much or most land in capitalist societies is in private hands, although public lands may be extensive and ownership of subsoil mineral wealth or of buried objects (see treasure-trove) may in some instances be public. (See also public ownership.)
Protection and content are given to the ownership of property by custom or law. The type of property law in a society may be taken as an index of its social and economic system. For example, a primitive pastoral tribe that must be closely united to resist its enemies may hold pasture lands in common or rotate ownership, thereby avoiding disruptive quarrels. By contrast, in societies that enjoy an economic surplus and relative security, the institution of private property may be highly developed, with marked division of ownership and a competitive struggle for control. On the other hand, private property may be all but eliminated in certain societies, as in those envisioned by Karl Marx.
In Europe, the distinction between realty and personalty served the purposes of early feudal society. The ownership and disposition of land, the basis of most wealth and the keystone of the social structure, were controlled to protect society, while the ownership of personalty, being of minor importance, was almost unfettered.
As the economic system was altered during the late Middle Ages, however, personalty lost its subordinate position and grew to be the economic mainstay of the rising middle class of merchants and manufacturers. Personalty could be bought and sold in relative freedom without the hindrances that beset the disposal of land. By taking advantage of its economic freedom, the middle class was able to replace the landed aristocracy as society's dominant class. Concurrently, it sought to relieve real property of its medieval fetters in order to use it, along with personalty, as revenue-producing capital.
Gradually the law of realty tended in all important respects to be assimilated to that of personalty. In time land could be sold or distributed by will with almost perfect freedom; in effect it joined the list of other commodities. Differences of detail in the law of realty and personalty persist, especially in the transfer of realty, however, which involves great formality.
Basic types of property in English common law, roughly corresponding to the division between immovables and movables in civil law. Real property consists of land, buildings, crops, and other resources, improvements, or fixtures still attached to the land. Personal property is essentially all property other than real property, including goods, animals, money, and vehicles.
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Levy imposed on real estate (land and buildings) and in some jurisdictions on personal property such as automobiles, jewelry, and furniture. Some countries also levy property taxes on farm equipment, business equipment, and inventories as well as intangibles such as stocks and bonds. Property taxes are usually levied by local or state governments rather than national governments, and they are a major source of tax revenue. Property taxes existed in the ancient world first as land taxes and later as taxes on farmhouses, livestock, and so on. The administration of a property tax involves identifying the property to be taxed, assessing its value, determining the appropriate tax rate, and collecting the requisite sum of money. Though sometimes burdensome to the poor, property taxes generally tend to redistribute the benefits of wealth from higher to lower income groups, since they often pay for schools and other services used by low-income groups. Seealso capital-gains tax; consumption tax; income tax; progressive tax; regressive tax.
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In law, something that is owned or possessed. Concepts of property vary widely among cultures. In the West, property is generally regarded as either tangible (e.g., land or goods) or intangible (e.g., stocks and bonds or a patent). Individual ownership of property is emphasized in Western societies, whereas in many non-Western societies property ownership is deemphasized or conceived on a more strictly communal basis. The use of property is extensively regulated throughout the West. Landowners injured by adjoining land uses may sue in nuisance in Anglo-American countries; similar actions exist in 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 homeowners' association fee), and equitable servitudes (such as a promise to use the property for residential purposes only). The civil law has fewer categories, the general category “servitudes” tending to cover for them all, and is a bit more restrictive. A common means of acquiring property is by transfer from the previous owner or owners. Such transfers include sales, donations, and inheritance. Seealso adverse possession; community property; intellectual property; prescription; real and personal property.
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Property held jointly by a husband and wife. In states having a community property system, property acquired by either spouse during the marriage may be deemed to belong to each spouse as an undivided one-half interest. Some property (e.g., gifts to one spouse) may be classified as separate, but in lawsuits over the classification of property the presumption is in favour of the community category. Some jurisdictions extend community property laws to same-sex unions.
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Property is any physical or virtual entity that is owned by an individual. An owner of property has the right to consume, sell, mortgage, transfer and exchange his or her property. Important types of property include real property (land), personal property (other physical possessions), and arguably intellectual property (rights over artistic creations, inventions, etc.). A title, or a right of ownership, is associated with property that establishes the relation between the goods/services and other individuals or groups, assuring the owner the right to dispense with the property in a manner he or she sees fit. Some philosophers assert that property rights arise from social convention. Others find origins for them in morality or natural law (e.g. Saint Irenaeus).
Public property is any property that is controlled by a state or by a whole community. Private property is any property that is not public property. Private property may be under the control of a single individual or by a group of individuals collectively. Some philosophers like Karl Marx use it to describe a social relationship between those who sell their labor power and those who buy it.
Property rights are protected in the current laws of states usually found in the form of a Constitution or a Bill of Rights. The fifth and the fourteenth amendments to the United States constitution, for example, provide explicitly for the protection of private property:
The Fifth Amendment states:
The Fourteenth Amendment states:
Protection is also found in the United Nations's Universal Declaration of Human Rights, Article 17, and in the French Declaration of the Rights of Man and of the Citizen, Article XVII, and in the European Convention on Human Rights (ECHR), Protocol 1.
Property is usually thought of in terms of a bundle of rights as defined and protected by the local sovereignty. Ownership, however, does not necessarily equate with sovereignty. If ownership gave supreme authority it would be sovereignty, not ownership. These are two different concepts.
Traditional principles of property rights includes:
Traditional property rights do not include:
Legal systems have evolved to cover the transactions and disputes which arise over the possession, use, transfer and disposal of property, most particularly involving contracts. Positive law defines such rights, and a judiciary is used to adjudicate and to enforce.
In his classic text, "The Common Law", Oliver Wendell Holmes describes property as having two fundamental aspects. The first is possession, which can be defined as control over a resource based on the practical inability of another to contradict the ends of the possessor. The second is title, which is the expectation that others will recognize rights to control resource, even when it is not in possession. He elaborates the differences between these two concepts, and proposes a history of how they came to be attached to individuals, as opposed to families or entities such as the church.
According to Adam Smith, the expectation of profit from "improving one's stock of capital" rests on private property rights. It is a belief central to capitalism that property rights encourage the property holders to develop the property, generate wealth, and efficiently allocate resources based on the operation of the market. From this evolved the modern conception of property as a right which is enforced by positive law, in the expectation that this would produce more wealth and better standards of living.
Both communism and some kinds of socialism have also upheld the notion that private property is inherently illegitimate. This argument is centered mainly on the idea that the creation of private property will always benefit one class over another, giving way to domination through the use of this private property. Communists are naturally not opposed to personal property which is "Hard-won, self-acquired, self-earned" (Communist Manifesto), by members of the proletariat.
Not every person, or entity, with an interest in a given piece of property may be able to exercise all of the rights mentioned a few paragraphs above. For example, as a lessee of a particular piece of property, you may not sell the property, because the tenant is only in possession, and does not have title to transfer. Similarly, while you are a lessee, the owner cannot use his or her right to exclude to keep you from the property. (Or, if he or she does, you may perhaps be entitled to stop paying rent or perhaps sue to regain access.)
Further, property may be held in a number of forms, e.g. joint ownership, community property, sole ownership, lease, etc. These different types of ownership may complicate an owner's ability to exercise his or her rights unilaterally. For example if two people own a single piece of land as joint tenants, then depending on the law in the jurisdiction, each may have limited recourse for the actions of the other. For example, one of the owners might sell his or her interest in the property to a stranger that the other owner does not particularly like.
From the RERUM NOVARUM, Pope Leo XIII wrote "It is surely undeniable that, when a man engages in remunerative labor, the impelling reason and motive of his work is to obtain property, and thereafter to hold it as his very own."
Anthropology studies the diverse systems of ownership, rights of use and transfer, and possession under the term "theories of property". Western legal theory is based, as mentioned, on the owner of property being a legal individual. However, not all property systems are founded on this basis.
In every culture studied ownership and possession are the subject of custom and regulation, and "law" where the term can meaningfully be applied. Many tribal cultures balance individual ownership with the laws of collective groups: tribes, families, associations and nations. For example the 1839 Cherokee Constitution frames the issue in these terms:
Communal property systems describe ownership as belonging to the entire social and political unit, while corporate systems describe ownership as being attached to an identifiable group with an identifiable responsible individual. The Roman property law was based on such a corporate system.
Different societies may have different theories of property for differing types of ownership. Pauline Peters argued that property systems are not isolable from the social fabric, and notions of property may not be stated as such, but instead may be framed in negative terms: for example the taboo system among Polynesian peoples.
The Ten Commandments shown in Exodus 20:2-17 and Deuteronomy 5:6-21 stated that the Israelites were not to steal. These texts, written in approximately 1300 B.C., were a blanket early protection of private property.
Aristotle, in Politics, advocates "private property." In one of the first known expositions of tragedy of the commons he says, "that which is common to the greatest number has the least care bestowed upon it. Every one thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual." In addition he says that when property is common, there are natural problems that arise due to differences in labor: "If they do not share equally enjoyments and toils, those who labor much and get little will necessarily complain of those who labor little and receive or consume much. But indeed there is always a difficulty in men living together and having all human relations in common, but especially in their having common property." (Politics, 1261b34)
The principal writings of Thomas Hobbes appeared between 1640 and 1651—during and immediately following the war between forces loyal to King Charles I and those loyal to Parliament. In his own words, Hobbes' reflection began with the idea of "giving to every man his own," a phrase he drew from the writings of Cicero. But he wondered: How can anybody call anything his own? In that unsettled time and place it perhaps was natural that he would conclude: My own can only truly be mine if there is one unambiguously strongest power in the realm, and that power treats it as mine, protecting its status as such.
A contemporary of Hobbes, James Harrington, reacted differently to the same tumult; he considered property natural but not inevitable. The author of Oceana, he may have been the first political theorist to postulate that political power is a consequence, not the cause, of the distribution of property. He said that the worst possible situation is one in which the commoners have half a nation's property, with crown and nobility holding the other half—a circumstance fraught with instability and violence. A much better situation (a stable republic) will exist once the commoners own most property, he suggested.
In later years, the ranks of Harrington's admirers would include American revolutionary and founder John Adams.
Another member of the Hobbes/Harrington generation, Sir Robert Filmer, reached conclusions much like Hobbes', but through Biblical exegesis. Filmer said that the institution of kingship is analogous to that of fatherhood, that subjects are but children, whether obedient or unruly, and that property rights are akin to the household goods that a father may dole out among his children—his to take back and dispose of according to his pleasure.
In the following generation, John Locke sought to answer Filmer, creating a rationale for a balanced constitution in which the monarch would have a part to play, but not an overwhelming part. Since Filmer's views essentially require that the Stuart family be uniquely descended from the patriarchs of the Bible, and since even in the late seventeenth century that was a difficult view to uphold, Locke attacked Filmer's views in his First Treatise on Civil Government, freeing him to set out his own views in the Second Treatise on Civil Government. Therein, Locke imagined a pre-social world, the unhappy residents of which create a social contract. They would, he allowed, create a monarchy, but its task would be to execute the will of an elected legislature.
"To this end" he wrote, meaning the end of their own long life and peace, "it is that men give up all their natural power to the society they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty as it was in the state of nature."
Even when it keeps to proper legislative form, though, Locke held that there are limits to what a government established by such a contract might rightly do.
"It cannot be supposed that [the hypothetical contractors] they should intend, had they a power so to do, to give any one or more an absolute arbitrary power over their persons and estates, and put a force into the magistrate's hand to execute his unlimited will arbitrarily upon them; this were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man or many in combination. Whereas by supposing they have given up themselves to the absolute arbitrary power and will of a legislator, they have disarmed themselves, and armed him to make a prey of them when he pleases..."
Note that both "persons and estates" are to be protected from the arbitrary power of any magistrate, inclusive of the "power and will of a legislator." In Lockean terms, depredations against an estate are just as plausible a justification for resistance and revolution as are those against persons. In neither case are subjects required to allow themselves to become prey.
To explain the ownership of property Locke advanced a labor theory of property.
In the 1760s, William Blackstone sought to codify the English common law. In his famous Commentaries on the Laws of England he wrote that "every wanton and causeless restraint of the will of the subject, whether produced by a monarch, a nobility, or a popular assembly is a degree of tyranny."
How should such tyranny be prevented or resisted? Through property rights, Blackstone thought, which is why he emphasized that indemnification must be awarded a non-consenting owner whose property is taken by eminent domain, and that a property owner is protected against physical invasion of his property by the laws of trespass and nuisance. Indeed, he wrote that a landowner is free to kill any stranger on his property between dusk and dawn, even an agent of the King, since it isn't reasonable to expect him to recognize the King's agents in the dark.
In contrast to the figures discussed in this section thus far, David Hume lived a relatively quiet life that had settled down to a relatively stable social and political structure. He lived the life of a solitary writer until 1763 when, at 52 years of age, he went off to Paris to work at the British embassy.
He did not believe in hypothetical contracts, or in the love of mankind in general, and sought to ground politics upon actual human beings as one knows them. "In general," he wrote, "it may be affirmed that there is no such passion in human mind, as the love of mankind, merely as such, independent of personal qualities, or services, or of relation to ourselves." Existing customs should not lightly be disregarded, because they have come to be what they are as a result of human nature. With this endorsement of custom comes an endorsement of existing governments, because he conceived of the two as complementary: "A regard for liberty, though a laudable passion, ought commonly to be subordinate to a reverence for established government."
These views led to a view on property rights that might today be described as legal positivism. There are property rights because of and to the extent that the existing law, supported by social customs, secure them. He offered some practical home-spun advice on the general subject, though, as when he referred to avarice as "the spur of industry," and expressed concern about excessive levels of taxation, which "destroy industry, by engendering despair."
Charles Comte, in Traité de la propriété (1834), attempted to justify the legitimacy of private property in response to the Bourbon Restoration. According to David Hart, Comte had three main points: "firstly, that interference by the state over the centuries in property ownership has had dire consequences for justice as well as for economic productivity; secondly, that property is legitimate when it emerges in such a way as not to harm anyone; and thirdly, that historically some, but by no means all, property which has evolved has done so legitimately, with the implication that the present distribution of property is a complex mixture of legitimately and illegitimately held titles." (The Radical Liberalism of Charles Comte and Charles Dunoyer
Comte, as Proudhon would later do, rejected Roman legal tradition with its toleration of slavery. He posited a communal "national" property consisting of non-scarce goods, such as land in ancient hunter-gatherer societies. Since agriculture was so much more efficient than hunting and gathering, private property appropriated by someone for farming left remaining hunter-gatherers with more land per person, and hence did not harm them. Thus this type of land appropriation did not violate the Lockean proviso - there was "still enough, and as good left." Comte's analysis would be used by later theorists in response to the socialist critique on property.
In his 1849 treatise What is Property?, Pierre Proudhon answers with "Property is theft!" In natural resources, he sees two types of property, de jure property (legal title) and de facto property (physical possession), and argues that the former is illegitimate. Proudhon's conclusion is that "property, to be just and possible, must necessarily have equality for its condition."
His analysis of the product of labor upon natural resources as property (usufruct) is more nuanced. He asserts that land itself cannot be property, yet it should be held by individual possessors as stewards of mankind with the product of labor being the property of the producer. Proudhon reasoned that any wealth gained without labor was stolen from those who labored to create that wealth. Even a voluntary contract to surrender the product of labor to an employer was theft, according to Proudhon, since the controller of natural resources had no moral right to charge others for the use of that which he did not labor to create and therefore did not own.
Proudhon's theory of property greatly influenced the budding socialist movement, inspiring anarchist theorists such as Mikhail Bakunin who modified Proudhon's ideas, as well as antagonizing theorists like Karl Marx.
Frédéric Bastiat's main treatise on property can be found in chapter 8 of his book Economic Harmonies (1850). In a radical departure from traditional property theory, he defines property not as a physical object, but rather as a relationship between people with respect to an object. Thus, saying one owns a glass of water is merely verbal shorthand for I may justly gift or trade this water to another person. In essence, what one owns is not the object but the value of the object. By "value," Bastiat apparently means market value; he emphasizes that this is quite different from utility. "In our relations with one another, we are not owners of the utility of things, but of their value, and value is the appraisal made of reciprocal services."
Strongly disputing Proudhon's equality-based argument, Bastiat theorizes that, as a result of technological progress and the division of labor, the stock of communal wealth increases over time; that the hours of work an unskilled laborer expends to buy e.g. 100 liters of wheat decreases over time, thus amounting to "gratis" satisfaction. Thus, private property continually destroys itself, becoming transformed into communal wealth. The increasing proportion of communal wealth to private property results in a tendency toward equality of mankind. "Since the human race started from the point of greatest poverty, that is, from the point where there were the most obstacles to be overcome, it is clear that all that has been gained from one era to the next has been due to the spirit of property."
This transformation of private property into the communal domain, Bastiat points out, does not imply that private property will ever totally disappear. This is because man, as he progresses, continually invents new and more sophisticated needs and desires.
Hernando de Soto has argued that an important characteristic of capitalist market economy is the functioning state protection of property rights in a formal property system where ownership and transactions are clearly recorded. These property rights and the whole formal system of property make possible:
Most legal systems distinguish different types (immovable property, estate in land, real estate, real property) of property, especially between land and all other forms of property - goods and chattels, movable property or personal property. They often distinguish tangible and intangible property (see below).
One categorization scheme specifies three species of property: land, improvements (immovable man made things) and personal property (movable man made things)
'Real property' rights are rights relating to the land. These rights include ownership and usage. Owners can grant rights to persons and entities in the form of leases, licenses and easements.
Later, with the development of more complex forms of non-tangible property, personal property was divided into tangible property (such as cars, clothing, animals) and intangible or abstract property (e.g. financial instruments such as stocks and bonds, etc.), which includes intellectual property (patents, copyrights, and trademarks).
From some anarchist points of view, the validity of property depends on whether the "property right" requires enforcement by the state. Different forms of "property" require different amounts of enforcement: intellectual property requires a great deal of state intervention to enforce, ownership of distant physical property requires quite a lot, ownership of carried objects requires very little, while ownership of one's own body requires absolutely no state intervention.
Many things have existed that did not have an owner, sometimes called the commons. The term "commons," however, is also often used to mean something quite different: "general collective ownership" - i.e. common ownership. Also, the same term is sometimes used by statists to mean government-owned property that the general public is allowed to access. Law in all societies has tended to develop towards reducing the number of things not having clear owners. Supporters of property rights argue that this enables better protection of scarce resources, due to the tragedy of the commons, while critics argue that it leads to the exploitation of those resources for personal gain and that it hinders taking advantage of potential network effects. These arguments have differing validity for different types of "property" -- things which are not scarce are, for instance, not subject to the tragedy of the commons. Some apparent critics actually are advocating general collective ownership rather than ownerlessness.
Things today which do not have owners include: ideas (except for intellectual property), seawater (which is, however, protected by anti-pollution laws), parts of the seafloor (see the United Nations Convention on the Law of the Sea for restrictions), gasses in Earth's atmosphere, animals in the wild (though there may be restrictions on hunting etc. -- and in some legal systems, such as that of New York, they are actually treated as government property), celestial bodies and outer space, and land in Antarctica.
The nature of children under the age of majority is another contested issue here. In ancient societies children were generally considered the property of their parents. Children in most modern societies theoretically own their own bodies -- but they are considered incompetent to exercise their rights, and their parents or guardians are given most of the actual rights of control over them.
In many ancient legal systems (e.g. early Roman law), religious sites (e.g. temples) were considered property of the God or gods they were devoted to. However, religious pluralism makes it more convenient to have religious sites owned by the religious body that runs them.
In the Inca empire, the dead emperors, who were considered gods, still controlled property after death..
Property giving (legal)
Property taking (legal)
Property taking (illegal)
Property of either digital or virtual form