QS 2090-Law of Property CW

Table of Contents
Introduction ........................................................................................................................................................ 2
Types of real properties in Srilanka ................................................................................................................... 3
Immovable property law ................................................................................................................................ 3
Key sources of immovable property law in Sri Lanka include .................................................................. 3
Rights related to immovable property include ........................................................................................... 3
Property ownership has special legal obligations ....................................................................................... 3
Types of immovable property ..................................................................................................................... 3
Case Law Examples.................................................................................................................................... 3
Movable property law ........................................................................................................................................ 4
Case Law Examples ....................................................................................................................................... 4
Fernando v. Perera: ..................................................................................................................................... 4
Wijesinghe v. Gunasekera: ......................................................................................................................... 4
Definitions of “Ownership” and “Possession” .................................................................................................. 4
Ownership: ..................................................................................................................................................... 4
Possession: ..................................................................................................................................................... 4
Rights and Obligations of Legal Ownership under Roman-Dutch Law and English Law Principles ............... 5
Roman-Dutch Law Principles ........................................................................................................................ 5
English Law Principles................................................................................................................................... 5
Comparative Analysis .................................................................................................................................... 5
Rights and Obligations of Legal Ownership Under Case Law in Sri Lanka ..................................................... 5
Rights of Legal Ownership ............................................................................................................................ 6
Right to Possess .......................................................................................................................................... 6
Right to Use ................................................................................................................................................ 6
Right to Transfer ......................................................................................................................................... 6
Right to Protection ...................................................................................................................................... 6
Obligations of Legal Ownership .................................................................................................................... 6
Respecting Easements ................................................................................................................................ 7
Avoiding Nuisance...................................................................................................................................... 7
Preventing Harm to Neighbors ................................................................................................................... 7
Following Zoning and Building Laws ........................................................................................................ 7
Paying Taxes ............................................................................................................................................... 7
Conclusion ......................................................................................................................................................... 8
References .......................................................................................................................................................... 9

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QS 2090-Law of Property CW

Introduction

Property is essential to establishing the rights and obligations of owners and possessors within a legal
framework. Roman-Dutch law and English law ideas are used to define property rights in Sri Lanka, each of
which offers a unique viewpoint on possession and ownership. This report examines the intricate legal
doctrines governing real property, focusing on the classification of real properties, definitions of ownership
and possession, and the associated rights and obligations. This report aims to give a thorough overview of
Sri Lanka's property rights legal environment by examining these concepts via the lens of case law.

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Types of real properties in Srilanka

Roman-Dutch Law (RDL) separates moveable and immovable property in Sri Lanka. This the main types
under the real property law.

Immovable property law

Immovable property is defined as land and anything permanently linked to it, including buildings,
constructions, and natural resources. The rules regulating immovable property in Sri Lanka are based on
Roman-Dutch Law (RDL), English Law (EL), and legislative provisions.
Immovable property comprises the following:Land and subsoil. Buildings, fittings, and improvements are
permanently linked to the property. Servitudes and easements are examples of land rights.
Immovable properties include residential homes, farms, and commercial buildings.
Key sources of immovable property law in Sri Lanka include
• Roman-Dutch Law (RDL)
• English Law (EL)
• Statutory Laws
Rights related to immovable property include
• Ownership Rights
• Possessory Rights
• Servitudes (Easements)
Property ownership has special legal obligations
Taxes and Dues: Paying property taxes and municipal levies.
Maintenance: Maintaining the property in excellent repair to prevent harm to others.
Adherence to regulations: Obeying zoning rules, construction requirements, and environmental restrictions.
Types of immovable property
• Ownership Laws; These laws define the rights of individuals or entities to own immovable property.
• Possession Laws; Regulates who has physical control or custody of property.
• Lease Laws; Govern the temporary transfer of property rights for a defined period.
• Mortgage Laws; Governs the use of immovable property as collateral for loans.
The immovable property law in Sri Lanka strikes a balance between ownership rights, duties, and
community demands. It combines RDL principles with legislative frameworks to ensure full regulation of
ownership, transfer, and usage.
Case Law Examples
1. Siriwardene v. Abeyratne (Sri Lanka):
o Clarified the distinction between legal title and possessory rights.
2. Fernando v. Perera:
o Established the principle that ownership requires clear title, even in cases of long possession.
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Movable property law

Movable property refers to goods that are not permanently tied to the land and may be transferred or moved
from one location to another. The legal basis for moveable property in Sri Lanka is based on Roman-Dutch
Law (RDL), English Law (EL), and legislative regulations.
Movable property includes tangible and intangible assets that can be physically moved or transferred
without altering their nature.
• Examples:
o Tangible: Vehicles, furniture, jewelry, livestock.
o Intangible: Shares, bonds, intellectual property rights.
Movable assets can be used as collateral for loans or credit. Movable property can be handed over
temporarily under specific agreements. Movable property is easier to transfer compared to immovable
property. Movable property laws govern ownership, transfer, possession, and obligations related to these
assets.

Case Law Examples

Fernando v. Perera:
o Emphasized the importance of lawful possession in claiming ownership.

Wijesinghe v. Gunasekera:
o Highlighted the rights of a pledgee over pledged movable property.

Definitions of “Ownership” and “Possession”

Ownership:
o Ownership is the legal right to control, use, and dispose of property.
o It includes the rights to enjoy, transfer, and restrict others from interfering with the
property. (Abeyratne)
o Ownership is more comprehensive and permanent than possession.
o Example: In Fernando v. Perera, ownership was established as requiring clear legal title,
irrespective of long possession. (v.)

Possession:
• Possession is the physical control or custody of property, either directly or through
another person.
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• It does not necessarily mean ownership but provides certain legal protections.
• Possession may lead to ownership in specific cases, like adverse possession.
• Example: In Siriwardene v. Abeyratne, the court differentiated between legal title
(ownership) and possessory rights. (Lee, 1953)

Rights and Obligations of Legal Ownership under Roman-Dutch Law and

English Law Principles

Roman-Dutch Law Principles

Under Roman-Dutch Law, ownership ("dominium") is defined as the most comprehensive real right, allow
the owner for complete control over the property, including the rights to use, enjoy, and dispose of it.
However, these rights come with obligations to make sure that the exercise of ownership does not infringe
on the rights of others or violate public law principles. In order to protect neighbors and the general public
from danger, property owners must maintain their properties(Van der Merwe, 1989).
For example, owners must properly maintain their properties to prevent annoyances like pollution or
structural dangers, which may result in revictual responsibility. Additionally, in the case of co-ownership,
Roman-Dutch principles require owners to act in mutual good faith and ensure equitable use and
maintenance of the property (Zimmermann, 1990).

English Law Principles

English law operates on the foundation of "absolute ownership," with rights devided into estates in land and
interests in land. possession, control, exclusion, enjoyment, and disposition are The rights of ownership
(Gray & Gray, 2011). However, obligations are put in to balance societal interests, such as paying property
taxes and complying with zoning laws.
English law places strong emphasizes on equitable obligations, such as keeping the property in a manner
that does not cause harm to others, as illustrated in Rylands v. Fletcher (1868). Furthermore, tenants and
landlords must aling to statutory duties regarding repair and maintenance under the Landlord and Tenant Act
1985.

Comparative Analysis
Both systems indicate ownership as a fundamental right, but obligations differ in their application. Roman-
Dutch Law emphasizes communal responsibilities and the concept of good neighborliness, while English
Law concentrates on statutory compliance and individual rights. Despite these differences, both legal
traditions aim to balance individual rights with social obligations.

Rights and Obligations of Legal Ownership Under Case Law in Sri Lanka

In Sri Lanka, owning property means having rights like using, controlling, and selling it. However, it also
comes with responsibilities, such as not harming others, following laws, and respecting shared spaces. These

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rights and duties are explained through Roman-Dutch law, English law, and Sri Lankan laws. Courts in Sri
Lanka often refer to real-life disputes (case law) to decide how these rules work

Rights of Legal Ownership

Right to Possess

You can control and have exclusive possession of your property. No one can take it from you without
legal permission.
Case Example: Brodie v. Attorney General (7 NLR 81)
The court decided that buildings, fixtures, and anything permanently attached to the land are part of
the land itself. So, if you sell the land, the buyer also gets everything attached to it (like buildings
and wate tanks).

Right to Use

You can use your property as you want, whether to live on, farm, or rent it out, but you must not
disturb others.
Case Example: Jayasundara v. Godage (22 NLR 345)
A tree on one property extended its branches over the neighbor’s land. The court ruled that the
neighbor could cut these branches but should ideally get court approval to avoid disputes.

Right to Transfer

You can sell, gift, or transfer your property to someone else. To do this, proper legal documents like
deeds are needed.
Case Example: Wijesooriya v. Mendis (1931)
The court emphasized that a valid deed is necessary to prove ownership and make transfers legally
binding.

Right to Protection
If someone occupies or damages your property without permission, you can take legal action to
protect your ownership.
Case Example: Fernando v. Wijesuriya (48 NLR 320)
This case highlighted that if someone occupies land without disturbance for 10 years, they could
claim ownership under the Prescription Ordinance, unless the rightful owner protects their rights.

Obligations of Legal Ownership

Owning property comes with responsibilities. These duties protect neighbors, the environment, and public
interests.

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Respecting Easements

An easement is a legal right someone else has to use part of your property, like a shared pathway or water
access. As a property owner, you must respect these.
Case Example: Petrie v. Malloch (1925)
This case ruled that an owner must allow a neighbor to use a pathway (easement) if it has been legally
established.

Avoiding Nuisance

You must not use your property in ways that disturb your neighbors, such as creating excessive noise,
pollution, or blocking light.
Case Example: Silva v. Silva (17 NLR 266)
This case applied the English rule of strict liability from Rylands v. Fletcher, where a property owner was
held responsible for harm caused by their actions, like starting an agricultural fire.

Preventing Harm to Neighbors

You must not cause damage to neighboring properties, like soil erosion (subsidence) or blocking water flow.
Case Example: Fernando v. Wijesuriya (48 NLR 320)
The court ruled that neighbors are entitled to support for their land and the natural flow of water. Property
owners must avoid harming these.

Following Zoning and Building Laws

If you want to build, renovate, or use your property differently, you need to follow local regulations and get
approvals.
Case Example: Jalaldeen v. Albert (59 NLR 127)
This case upheld the demolition of a building that was constructed without proper approval, showing the
importance of following building laws.

Paying Taxes

Property owners must pay land taxes and other government dues. Failing to do so can result in fines or the
property being taken over by authorities.

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Conclusion
The legal framework of Sri Lanka's analysis of property rights emphasizes the importance of critical balance between
the rights and obligations of ownership. The interplay character of property law, which aims to preserve individual
rights while maintaining social harmony, is highlighted by the interaction of Roman-Dutch and English legal ideas.
This report has provided important insights into the legal complexities of property ownership and possession by
illuminating the practical application of these doctrines via the examination of pertinent case law. Finally, we can say,
having a thorough understanding of these rights and responsibilities enables participants to successfully and
responsibly traverse the real property landscape

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References
1. Siriwardene v. Abeyratne, Sri Lankan case law clarifying ownership and possession distinctions
2. Abeyratne, C. Principles of Property Law in Sri Lanka
3. Lee, R. W. (1953). An Introduction to Roman-Dutch Law
4. Gray, K., & Gray, S. F. (2011). Elements of Land Law (5th ed.). Oxford University Press.
5. Van der Merwe, C. G. (1989). Sakrereg (2nd ed.). Butterworths.
6. Zimmermann, R. (1990). The Law of Obligations: Roman Foundations of the Civilian Tradition.
Oxford University Press.
7. Rylands v. Fletcher, (1868) UKHL 1.

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