INTRO.

TO PROPERTY LAW

1.0 Defining property.

Affirmative claims which arise regarding life’s bounties exist as against any other person, and
are in rem, as against the whole world; the nature of these claims gives rise to the concept of
property.
To a layperson, property exists as a thing and denotes the subject matter of a physical nature
e.g. land, automobiles, houses &c. One’s property is therefore that which a person owns to do
what they like with.
However, to a lawyer, property is a concept separate and distinct from the thing and
denotes a complex group of jural relations between the owner of the thing and all other
individuals.

1.1 Property and the law.

Property as a right is defined and safeguarded by the law in most jurisdictions where law is
the foundation of property laws.

 Mellinger v City of Houston ‘a right is a well-founded claim, and a well-founded

claim means nothing more or less than a claim recognised or secured by law’ – Justice
Strayton.

Property rights will often exist only and to the extent they are recognised by a particular
legal system: it is only under a given legal system that property rights are conferred and
guaranteed, and that affirmative proprietary claims can be given effective recognition.
Property cannot exist without the law.

 Jeremy Bentham: ‘property and law are born together, and die together. Before laws
were made there was no property; take away laws and property ceases.’

Salmond describes one’s property as ‘all that is his in law’:

1. Proprietary rather than personal rights
2. Proprietary rights in rem rather than in personam
 3. Corporeal rather than incorporeal property
Law plays a critical role in regulating social relations and the conduct of human beings in
relation to a thing.

 Stephen Leake: ‘rights to things, jura in rem, have for their subject some material
thing, as land or goods, which the owner may use or dispose of in any manner he
pleases within the limits prescribed by the terms of his right’

1.1.1 Property as rights.

A right is a legally recognised interest in, to, or against a person or a thing which can be
created and protected by law.
 Static Rights: those interests that a person has in a thing or a person, they are
permanent and persist until law brings them to an end or when the thing ceases to
exist
 Dynamic Rights.
Some people hold the view that property is a right inherent to all human beings while others
argue that they do not inhere in one by the mere virtue of being human but that an additional
legal claim must exist.
Property denotes a right of control over ‘things’ recognised by the society.

 Jeremy Waldron: ‘…law of property is about things, and our relationships with one
another with respect to the use and control of things’

Property therefore consists of a package of legally recognised rights held by one person in
relation to others with some respect to some thing or other, and the state enforces those
rights.
Property regimes perform the mediation function in the relationship between the individual,
property and the state which explains why in many legal regimes the right to property is
jealously guarded by legislation and judicial pronouncements which sometimes go to the
extent of defining the way persons can transact in proprietary entitlements.
An infringement to rights to property often violates other rights such as the right to water,
shelter, housing, food, culture, religious freedom, development, access to natural resources
and family.
Most land disputes centre on questions of title to protect proprietary entitlements.
1.1.2 Property as a ‘bundle of sticks’
The lawyers view of property is often described using a bundle of sticks metaphor (conceived
of by English Common Law) conferring powers on owners and implying obligations and
liabilities on others.
Under common law distinct rights can be vested in different owners or an owner may
hold/enjoy all the sticks at the same time or may opt to sell, give or lease some of them.
Legal scholars have sought to identify the essential features of ownership that sets property
apart from other legal concepts with the following menu devised by Honoré:
i. Right to possess: exclusive control over the property (must have the intent to control)
ii. Right to use: enjoy the fruits/benefit from the thing
iii. Right to manage: determine who, how the thing may be utilised
iv. Right to the income of the thing: draw (monetary) benefits from the property
v. Right to the capital: internalizing the externalities of the property i.e. drawing
economic value from the property.
vi. Right to security: protection against expropriation while one enjoys the benefits
conferred on them by ownership of the property.
vii. Right to transmissibility: right to transfer the thing and the rights attached to it.
viii. Absence of term: duration of ownership, property can’t be owned indefinitely
ix. Prohibition of harmful use: prohibits the owner from using the property in a manner
that is dangerous/harmful to others.
x. Liability to execution: right to derive capital from property
xi. Incident of residuarity: interest in property resides in another after the end of term of
one party in instances of joint ownership

Honoré argues that collectively these incidents are essential features of the full concept of
property nevertheless he notes that although the listed incidents together may be sufficient,
individually they are not necessary conditions for the person of inherence to be the
designated owner of the thing.
Alexander and Penalver critique this metaphor by arguing that it runs the risk of turning
property into a disaggregated collection of narrowly defined rights causing us to lose
sight of the connection of those rights to things.
  Michael Heller: “the modern bundle-of-rights metaphor reflects well the possibility
of complex relational fragmentation, it gives a weak sense of the ‘thingness’ of
private property”
Essentially, by focusing too narrowly on any given right to a thing and conceiving of that
right independently from other rights in the thing, the property institution is bound to fall
apart and be replaced by disaggregated strands of rights and duties among particular people.
Modern property scholars have singled out specific tasks from the bundle that uniquely depict
the essence of property. These are:

i. the right to exclude others: this is the entitlement to keep out or prevent others from
the use or possession of property. It goes hand in hand with the right of control over
things; the owner must have control over the thing and temporary control does not
amount to property unless certain conditions are fulfilled i.e. the possession must be
recognised by others. In relation to permanent things, the right must have certain
permanence and must be respected even in the owner’s absence. Control must be
exclusive; if shared with others does not amount to private property
 Thomas Merrill: “The right to exclude others is more than just one of the most
essential constituents of property – it is the essential condition. Give someone the
right to exclude others from a valued resource…and you give them property. Deny
someone the exclusion right and they do not have property.”
 Blackstone: “the right to property; [is] that sole and despotic dominion which one
man claims and exercises over the external things of the world, in total exclusion of
the right of any other individual in the universe.”
Although in Blackstone’s time the owner had exclusive and despotic control over
property, today excludability is limited rather than exclusive.
Limitations to excludability:

 In Kenya, the limitations include property being taken away to fulfil public
purposes; property holding is subject to the development control or police
power of the state in the interest of public safety, health, order and morality.
Property owners must use the property sustainably so as to avoid degradation
of the environment.
 (The right to exclude does not mean exclusiveness especially) where property
interests are co-owned i.e. no one person necessarily has an exclusive interest
 in the thing. Nevertheless, the various interest holders acting together and at
times each acting alone can exclude others.
 Commons identifies ontologically organised land and associated resources
available exclusively to specific communities, lineages or families operating
as corporate entities; an owner cannot abuse and exploit property recklessly
as the ownership of the property does not confer a despotic right of control.
 ‘Sociability’ puts a limit on the right to exclude by imposing obligations on
owners to contribute in ways that are appropriate to them, to the community
welfare and other human capabilities.

ii. the right to possess and use: to possess means an owner can keep and manage
property under their ownership while to use means the owner can exploit the utility
and enjoy the fruits from the property. A landowner may use his land in any way he
wishes as long as it is not a nuisance to others and no one else holds interest in the
land.
This right is not a necessary component of property as exemplified by the landlord-
tenant relationship.
iii. the right to transfer: entails the right to transfer property rights to others during
ones’ lifetime or by operation of law. It is the right of disposal of one’s ownership
rights in property to another person(s) or to renounce such rights. The law imposes
several restrictions e.g. prohibition of transfer of title by s/one bankrupt so as not to
defeat creditors’ claims to the estate; a property owner cannot impose unnecessary
restrictions incident to the transfer; owner can’t discriminate against potential buyers
in case of transfer; certain types of property (body parts) can’t be traded in the market
and others can’t be transferred at death (a life estate).

1.1.3 Property as a web of relationships.

Property has always been defined in terms of rights however recently the law has recognised
that property owners hold rights and owe duties to others. Therefore, property creates
relationships among people concerning things. This conceptualisation was propounded by
Wesley Hohfeld who envisioned property as a complex web of legally enforceable
relationships.
According to him, a property owner can hold four distinct entitlements, each linked to a
‘correlative’ counterpart. Right – duty, privilege – no right, immunity - disability, power –
liability.
A right represents an affirmative claim that one has against another and is enforceable against
a duty bearer. A right holder can take justifiable steps to extract the right if it is not fulfilled
by the duty holder. Where a right exists, the remaining task is in determining its enforcement.
Enforcement of a right is subsequently dependent on the existence of a corresponding duty.

 Alan Gewirth: “a right is fulfilled when the correlative duty is carried out i.e. when
the required action is performed or the prohibited action is not performed. A right is
infringed when the correlative duty is not carried out…a right is violated when it is
unjustly infringed…a right is overridden when it is justifiably infringed, so that there
is sufficient justification for not carrying out the correlative duty”.

A person is said to be duty bearer when he is commanded by society to act or forbear for the
benefit of another person(s) and failure to do so accrues certain penalties.
A privilege is freedom from the right or claim of another and is the opposite of a duty; one
with privilege is under no threat for disobeying as there is no duty imposed on them.
Consequently, society has no-right against the privilege holders.
A power is ones’ ability to alter legal (or moral) relations and is the opposite of legal
disability with the correlative of legal liability. S/one is under a liability to act in response to a
power dispensed by another.
Immunity arises when s/one has certain legal protections that remove him from any legal
burdens imposed by another.

1.1.4 Property as a basis of expectation.

 Jeremy Bentham: ‘property is nothing but a basis of expectation’ in re things.

An expectation is a disposition to predict that a certain event will occur, paired with an
attitude of desiring and feeling entitled to count on its occurrence. Viewing property as a
legal structure using the Hohfeldian framework creates possible legal expectations in relation
to things. E.g. a homeowner has claim-rights to occupy and use the premises; privileges and
powers to exclude others, charge or lease out the property and transfer it to others; immunity
from expropriation of the house by the state without compensation; liability for property
taxes and so forth. Since these legal incidents are known by homeowners, they have
expectations regarding the merits and demerits of home ownership.
Property related expectations bring about stability which is necessary for personal and social
wellbeing.

1.2 Property as value.

According to Bell, value is the central concept uniting the law property. As a legal institution,
property law concerns itself with the creation and protection of the value inherent in stable
ownership.
Apart from recognising and creating stable relationships between persons and assets, property
law allows owners to extract utility that is otherwise unavailable. Bell criticises the bundle of
sticks conceptualisation arguing that they are subordinate to the overall goal of defending
value; to him, the various rights attending property are best viewed not as random sticks, but
rather as a means to property’s end.
One school of thought argues that instead of defining property as a bundle of sticks or in
terms of the human interests it serves, we should look for a specific function that property
performs.
Jeremy Waldron defines property as that area of law concerned with the allocation of
material resources. Relatedly, private property is described as a system that provides a set of
rules governing access to and control of material resources that are organised around the idea
that resources are on the whole separate objects each assigned and therefore belonging to
some particular individual.

1.3Property must vest in some person(s).

Property may be private, public, joint or common but must vest in some person or persons
and must be exclusive of other persons: if the whole world can use it then it is not property at
all. This essentially means that it can either vest in natural or jural persons. Natural persons
can either hold property individually or in common with others.
Property can still be vested in the state as it has a legal personality and certain obligations
under the public trust doctrine; the state of any other entity holding property on behalf of the
public can be vested with property rights to hold on behalf of the public. The state must act in
interest of the public with regard to those properties. In Kenya, public land is vested either
with the county or national government in trust for the people and administered on their
behalf by the National Land Commission.

1.4Property as possession.
Under common law, possession is the origin of property. Essentially, a person who had prior
possession of a thing had a better right in the thing. Most common law actions used to
recover a detained thing or its value were premised on possession or a right to possession.

 Lawson: “a person will be held to possess a thing if he has the sort and extent of
control that society, considered as being represented by the ordinary reasonable man,
would regard as appropriate to the kind of thing and the circumstances of the case”

Possession requires both the intent to control as well as an act of control. When possession is
continued long enough and adverse to the interests of the owner, it can ripen into ownership
by operation of the doctrine of prescription or adverse possession; this conception of
possession takes into consideration the de facto situation and not the de jure position.
The question of who takes first possession is answered in the case Pierson v Post where first
in time to take possession or occupancy owns the thing.
Possession therefore means a clear act, whereby all the world understands that the
pursuer has an unequivocal intention of appropriating the thing (in re Pierson v Post).
At common law, there is a higher appropriation of rights which ultimately flows from a
political superior or sovereign known as ownership. Ownership is regarded as a secure form
of possession. Consequently, property denotes the right of ownership and property is said to
be those things that are the object of one’s ownership.
As an aggregate of rights, property consists of rights of ownership in tangible things clothed
with possession; bare rights unaccompanied with possession but which are nevertheless
valuable.

1.5Seisin.
This is a feudal possession of land which only the owner of a freehold estate in freehold land
could have. A person in seisin of land was ‘set’ there and continues to ‘sit’ there. A
freeholder remained seised even after granting a term of years and giving up physical
possession of the land, as receipt of rent was evidence of seisin. The requirement of physical
possession did not mean that the person had to be in continuous occupation as seisin was not
lost merely because he was not in possession. Once required, it continued until another
person acquired it.

1.6Title
Title is usually considered to be paramount in determining property rights and is usually
vested in an individual or corporate entity and this grants unlimited rights on these persons,
subject only to the limitations put in place by the state. According to De Soto, title is key in
unlocking the potential of informal property holdings and this is done through formalisation
of title which also guarantees security of tenure. The vesting of title defeated all claims over
land and as such, title vested in a person upon going through the formalisation processes that
are established by the state. Title is symbolised by an official document granted by the state
upon completion of property transactions and upon registration. Title is a particularly great
concern in land ownership where several people lay similar claims over title to land; such
cases necessitate the ascertainment of authenticity of the claims by various parties. See
Gacheru v Hewan Investments Ltd & The Chief Land Registrar also Gitwani Investments v
Taj Mal.

1.7Ownership