Harvard University

Real And Personal Property

Introduction

In legal term, property may be defined as something which an individual has expectations of drawing advantages from; the definition also covers that thing under consideration. Consequently, property is a combination of the issue of possession or ownership and the rights that ought to be protected by the country’s government. This definition is in contrast to what lay persons define property as; they restrict it to something tangible. Other law dictionaries continue to add that property is the exclusive right of certain individuals to possess, dispose and to use that thing alongside the subject matter of the right; this may either be an object, benefit or prerogative.

Property is usually divided into two aspects; the first being the personal property and the second is real property. Real property is usually restricted to matter revolving around land or what is sometimes called ‘in rem’. On the other hand, personal property revolves around chattels or what may sometimes be defined as ‘in personam’. In modern law, property can be examined under a series of models.; the first one amongst these is property as  a fact. The second is property as a right and the third is property as a responsibility.

Legal issues

In the legal system, real and personal property ownership is governed by property law rights when considering the common law system. In the civil law legal system, there is a distinction between movable and immovable property. Real property is largely encompassed by immovable property while personal property is associated with movable property. Consequently, the rights associated with these types of property are entailed in property law. (Liuzzo & Bonnice, 2005)

In legal terms, the process of declaring that certain property belongs to an individual is not adequate enough to constitute property. Instead, this matter is usually all embracing when certain persons need to have their rights to chattels or land respected and enforced by the law. It is essential for one to acquire property legitimately in accordance to the law so as to seek its protection. This is usually acquired by possession of a title to that property.

There are a series of differences that arise when one considers the issue of personal versus real property. The most outstanding difference among them is with regard to immobility. Usually, real property can be considered immobile while personal property is mobile. This means that the rule governing the latter’s transference are radically different from those governing the former. Real property is usually divided into two types of categories. The first one amongst this is the corporeal hereditaments which refer to land or tangible real property. The second category is known as incorporeal hereditaments which refer to real property that may not be tangible. Consequently, this is what is known as the easement of way. (Barnes et al, 2008)

Possession in property law is instituted in order to eliminate social disorder. This is because when a person is in possession of certain property, then they have the right to take action against persons who may be interfering with their possession. This interference is only tolerated when the person causing it demonstrates that they have a superior right over that property.

Property possession can be changed through the process of transfer; in other words, transfer refers to disposition of that property. Usually, this occurs through gifts or sales and must encompass willing consent from the person initiating the transference. In other circumstances, it is possible for a person to obtain interests in certain properties by acquiring trust that was created for the benefit of that person in the event that the previous owner is deceased.

In certain scenarios, transference may occur from person to person without consent. This occurs when the person under consideration has committed an act that violates the other’s rights. For instance, when a person goes bankrupt or when a person is deceased prior to distributing their property (inestate). In other circumstances, the court of law may decide to take that property from the individual and this therefore creates an avenue for forfeiting one’s property rights.

In certain scenarios, real or personal property may have more than one interest. Usually, this is a result of miscalculation on the part of the title dispenser or this could be an unscrupulous act by an individual who wants to obtain property dishonesty. This means that these conflicting interests give rise to claims that are usually inconsistent with one another. In such circumstances, the law requires that the court should be involved in the matter. Here, the court has the mandate to decide the interests that carry the most weight or it has the mandate to rank these interests. Consequently, depending on the sphere of enforceability, certain interests may be lower or higher in hierarchy. (Katch, 2007)

Leases are also an important part of common-law because they are a means of protecting the rights of the tenants and landlords in the process of considering real property. Usually, leases can last for a short term or long term period depending on the specifications laid out by the affected parties. Consequently, this creates an avenue in which both parties can declare their right violations.

There are a series of rights that tenants are granted under common law and these include

  • The right to determine how to use real property
  • The right to exclude other persons from enjoying the property or land
  • Right to transfer all or part of a person’s rights upon mutual agreement
  • Right to determine consequences or nature of costs during transference
  • Etc

There are a series of legal issues that need to be covered when considering the issue of personal property. For instance, personal properties can be executed or relieved in case a property owner is a poor debtor. Chapter 528, Sections one through to ten govern the levying of personal property. Consequently, any person who contravenes these laws during the process may be deemed as acting illegally. In the event that a person is a poor debtor, his or her personal items may be taken by the creditor for auctioning. Usually, the auction must be advertised over a period of four days and the notices must be placed in a very public place. Upon expiration of the period of notice, the personal property may be sold at an auction. It should be noted that if the creditor fails to make the public notice, then he will not be acting legally while auctioning the property. Also, if the property is sold prior to the four day expiration, then the person is also acting illegally. (Katch, 2007)

In relation to the issue of bad debt, the debtor can redeem his or her goods/ personal property prior to their sale if the debtor is able to pay the officer’s charging fees.

It s also the right of the debtor to obtain any balance that may arise from the auction from the sale of his real property if his creditor has covered all the executions that had been levied on the debtor. In close relation to this is the issue of officer’ fraud; if the person performing the executions has acted in a dishonest or fraudulent manner, then the officer is supposed to pay five times the amount of money he defrauded. Additionally, officers intending on auction personal property need to make notices of adjournment of sales if they intend on doing that in the first place. This may usually be done within a period of ten days. Those who fail to do so may be found liable to the court of law.

The latter issues also apply to personal property that is covered under any of the following;

  • Security interest
  • Lien
  • Pledge
  • Mortgage

However, the issue of shares as a form of personal property is governed by different levies. For instance, when an execution is to be conducted for shares, then a thirty day notice needs to be made of the sale. A person residing in another country needs to be notified by placing the notice in a newspaper within that country of residence. Persons who choose to purchase the shares are entitled to share certificates which will grant them the rights associated with this form of personal property. In the event that the officer in charge of the sale of shares neglects to give a certificate or issue a false one, then he shall be considered liable to the creditor who has the right to obtain the entire sum associated with the debt. (Nolfi, 2008)

Aside from the issues of levies carried out on executions, there are a number of things that need to be considered when an individual is about to divorce. The issue of real or personal property during divorce can lead to a lot of conflict between the various parties under consideration.

With regard to personal property, there is a need for individuals to use the services of an appraiser. This person can go a long way in preventing many misunderstandings and disagreements in the court of law. It should be noted that property appraisers are quite different from home appraisers. Consequently, expert decisions are always favored over these non related ones. Additionally, the law requires that property appreciation or depreciation be considered after filing for divorce. In case property appreciates in value after filing for divorce, then both spouses are entitled to the benefits that come with it. This is usually the case when considering shares. However, in the event that the person who caused those appreciations was only one individual, then that person is entitled to benefit from the appreciation of that property. Usually, a series of personal properties may be considered during the process of divorce. Some of them include pensions, vehicles, trademarks among others. There area also a series of real property that need to be appraised and distributed during this process and they may include land, a home, businesses owned among other things.

It should be noted that divorce appraisal are not necessary when there is a prenuptial agreement because the latter document usually specifies some of the details that may arise in the event of a divorce. Appraisals are also excluded when the property under consideration was a gift, or a purchase that was made prior to the marriage.

Personal property may be divided equally among spouses when that property was acquired before the marriage but it increased in value after the marriage as a direct consequence of the efforts made by the two parties. Legally speaking, the only aspect that will be considered will be the added value that will be divided amongst the spouses. Otherwise, the original property will be given to the original owner individual alone. (Barnes et al, 2008)

The second category of personal properties that can be divided during divorce is property that had been acquired during the marriage jointly by both parties. Usually these encompass a series of objects that vary from china, motor homes, collectables, animals, furniture, pensions, automobiles and retirement plans. It should be noted that all this property need to be appraised by a qualified individual who may fall under any of the following professions

  • Auctioneers
  • Business brokers
  • Bankers
  • Financial advisers
  • CPA

However, all these appraisers need to have sat for USPAPA tests and they need  comply with the set laws on appraisals prior to giving evidence as qualified appraisers in the court of law.

Ethical issues

Aside from the legal issues, there are certain scenarios in which ethical aspects may come into play. This usually occurs when the persons under consideration are acting in accordance with the law but they are taking part in an act that has dishonest or unfair intent. Taking the case of a fictitious person named Timothy McNamara. McNamara was a hardworking and honest individual at work. However, he often used to engage in whistle blowing activities when he witnessed unethical behavior in the workplace. In response to this, one of his workers decided to use the color of law to institute revenge. He made some statements that caused the court to withdraw McNamara’s property and also this incident resulted in the loss of his job. Consequently, the issue can be regarded as unethical on the part of the employers who collaborated with the aggressor to oust John from his workplace. This is because they did not bother giving McNamara the time of day that he deserved in investigating his situation. Consequently, these employers may be regarded as unethical. (Nolfi, 2008)

There are certain acts that can be regarded as unethical during a divorce. For instance, if a person poses certain valuable items during their marriage and the person chooses to take those personal properties to another location where they can ensure their safety, then a series of ethical issues may crop up. For instance, it would be ethical to inform one’s spouse about these properties because if the issue of divorce arises, then it is likely that that person may try to use the issue of concealment from him or her as a fact that works against the accused.

When going about how to treat property cases, it essential for lawyers to inform their clients about the various types of laws that are applicable and how those could benefit or hamper the case under consideration. Hiding these truths form the client can be considered unethical by the presiding attorney. For instance, in divorce cases, it is necessary for lawyers to tell their clients about collaborative law. Through this option, it is possible for the affected parties to negotiate their way out of their disagreement.

In any cases involving real or personal property, it is essential for lawyers to disclose all the rights of the client before beginning the case. This is because failure to do so would create a situation in which the lawyer may stand to benefit from his client’s loss. Clients should be made to understand all the legal actions or alternatives that they can pursue with regard to personal or real property cases. For instance, some parties may decide to settle outside court. On the other hand, others may opt to meet in court. Consequently, lawyers need to lay out all the details concerning a certain case so as to empower their clients to pursue the right course of action. By doing this, they will eliminate any potential conflict of interest and will also go a long way in enhancing trust between the lawyer and his client and will also eliminate any potential damage of character. (Barnes et al, 2008)

Many legal representatives are usually so enthusiastic about dealing with a certain case that they fail to clarify to the client what the potential downsides of their actions could be. By giving a client only one course of action and not reviewing the disadvantages of that method, then lawyers will be creating a situation in which the rights of the clients are not fully outlined and this may be deemed unethical. For instance, if a client is interested in claiming a piece of land that was part of their family property, then it would be unethical on the part of the legal representative to hide some disadvantages of the court process. For instance, the legal representative could inform the client that there may be some facts that are relevant to the case and may not be discovered until after the case. Additionally, a situation may arise in which the affected persons are compelled to give certain types of evidence. In other circumstances, a client making claims to certain real property may issue restraining orders to his or her adversary. By doing this, the individual may be creating a scenario in which there may not be unilateral disposition of the property. Additionally, if there are joint decisions to be made by those parties, then the restraining order will prevent such occurrence. If a lawyer does not explain these disadvantages before hand, then they will be placing their clients in vulnerable positions that eventually destroy their overall credibility.

In any property case, there may be a need to hire certain experts to add validity to the case. It is essential for property lawyers to examine the background of their respective experts prior to submission of their case in court. This goes a long way in providing the client with the best representation possible. When attorneys merely settle for any professionals without doing a thorough background check, then they may not be placing their clients best interests at heart and this is something unethical. (Nolfi, 2008)

It should be noted that informing property right clients about all their rights may not necessarily prevent them from making wrong decisions, however, this usually assists in the process of protecting the attorney from accusation of overselling a certain legal process to the client. Consequently, the attorney seals any loop holes where unethical claims could arise.

In certain circumstances, person who wants to settle property cases may choose a series of avenues to settle their respective cases. Some of them may choose to hire two lawyers for the job of one. Usually, this may be okay if the client is merely trying to get a second opinion. However, if the client is trying to utilize one lawyer to benefit unfairly, then it is unethical on the part of the client. A good example of such a case is when a couple is about to divorce and there are disputes on how to divide their property. If one of the spouses chooses to hire the services of a collaborative lawyer to deal with the property issues, then this should be the only path chosen. However, if he or she decides to get another lawyer outside collaborative law to engage in a litigation process, then that client will be acting unethically. This is because the very nature of collaborative law requires that individuals using it must be committed to the process and must not try to obtain undue advantage over one another. It would also be unethical for any of the representing lawyers to continue with the case upon finding out that their client is trying to manipulate the system in such a manner.

In the event that a person is making claims about certain properties and they dispense confidential information to their legal representative, then it is the duty of the latter party to protect this confidential information. Otherwise, dispensing it to secondary parties may be regarded as unethical. This is because legal representatives have the duty to remain faithful to their respective clients even when circumstances seem to be against them.

In the same manner, some clients may choose not give information about certain issues surrounding the contested property. It would be unethical for a certain legal representative to accept matters as they are without informing the client about the losses of withholding information from them. The person contesting for any type of property needs to be aware of the fact that the court may order them to dispense certain pieces of information. If they had not been informed about it by their legal representatives in the first place, then chances are that they will be at a disadvantage and the lawyer may have acted in an unethical manner. (Nolfi, 2008)

Conclusion

The essay has examined the issue of personal and real property with an identification of the distinct differences. Additionally, the paper has looked at two major legal issues surrounding real and personal property; these are divorce and levies. Levies on debtors are governed by the constitution and usually address the officer’s obligations to the debtor. With regard to the issue of divorce, it is essential for disputing parties to do property appraisals.

Some of the ethical issues that may arise in real or personal property issues include things such as falling to inform clients about all their rights and communication issues.

Reference

Liuzzo, A. & Bonnice, J. (2005): Essentials of Business law; Mc GrawHill Publishers

Nolfi, E. (2008): Legal Terminology explained; Rout ledge, p 34-45

Barnes, J., Dworkin, T., Richards, E. (2008): Law for Business; Harvard University press

Katch., E. (2007): Clashing views on Legal Issues-Taking sides; Routeldge

Follow us