The word ‘property’ has many dimensions and people are not usually capable of defining it without difficulty. As it is an underlying word for ‘Land Law’ we shall under this section attempt to define it and other affiliate terms such as real property, real estate and immovable property.
Having read this section, the readers would be able to:
- Define property.
- Identify the meaning and nature of several related but at times confusing words (property, real property, real estate), and
- Define these terms in the context of Ethiopian ‘Land Law’.
1.2.1 The Concept of Property
The meaning of the term property varies, depending upon the context in which the word is used. In one sense, property means things-real or personal/movable, corporeal/immovable or incorporeal, and visible or invisible. But the word is also used to describe characteristics; a desk, for example, has unique properties of color, shape, and surface. In legal sense, property describes the relationship between people and things- that is, the right of a person to possess, use, or own things.
A wider definition of property as conceived in modern and even in medieval society, is fairly described by Hallowelln as a ''complex system of recognized rights and duties with reference to the control of valuable objects ... linked with basic economic processes ... validated by traditional beliefs, attitudes and values and sanctioned in custom and law.'' Four factors in this definition are variables. The persons who have property can differ in their social roles and status. The relationships which are the constituent rights, powers, privileges, and immunities of property can vary almost indefinitely. The objects as to which property is recognized can differ from the songs and magical formulas of a primitive people, to the land, corporate shares, or copyrights of today. The sanctions can vary from the belief that disease will lay low an offender to the highly complex machinery of law courts and sheriffs.
More specific definition of the legal meaning of property was given by the English jurist Sir William Blackstone as “the free use, enjoyment, and disposal of all his acquisition, without any control or diminution, save only by the laws of the land.” Black’s law dictionary added an important element to the above definition: an exchange value, or the ability to sell property is a critical factor for a thing to be a property. Concerning the importance of property in human life, Blackstone also observes: “there is nothing which so generally strikes the imagination, and engages the affection of mankind, as the right of property; or the 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.”
In Blackstone’s definition, the concept of general property under the common law does not differ substantially from its meaning under Roman law: “property in its nature is an unrestricted and exclusive right. Hence, it comprises in itself the right to dispose of substance of the thing in every legal way, to possess it, to use it, and to exclude every other person from interfering with it.” To be specific in Roman law, property was defined as follows: ius utendi et abutendi re sua, quatenus iuris ratio patitur, 'the right to use and abuse a thing, within the limits of the law' (Justinian, Code 4, 35, 21). The French Code Napoleon of 1804 in a similar manner defines ownership of property under article 544 as: the right to enjoy and dispose of property in the most absolute manner, provided that one does no use it in a manner prohibited by law or regulation.” Similarly, the 1960 Ethiopian civil code defines ownership right as follows:
Art. 1204.- Definition.
(1) Ownership is the widest right that may be had on a corporeal thing.
(2) Such right may neither be divided nor restricted except in accordance with the law.
Art. 1205. - Scope of right.
(1) Without prejudice to such restrictions as are prescribed by law, the owner may use his property and exploit it as he thinks fit.
(2) He may dispose of his property for consideration or gratuitously, inter vivos or mortis causa
In all cases whether during ancient times or in its modern conception, except for those personal chattels, the use and ownership of property (especially land) is limited by law for different land use purposes such as environmental, health, public good, town plan etc. See the details in the next chapters.
1.2.2 Property, Ownership, and the metaphor of Bundle of rights
One can see the definition given for property as confused with ownership. But what is ownership? Bryn Perrins in his book, Introduction to Land Law, defines property simply as “ownership.” The word is derived from the Latin proprius, meaning one’s own. My property is that which is my own, that which belongs to me. In its archaic means property signifies the corpus itself. But in the modern understanding of the concept property is law of ownership of the corpus and associated rights.
Hence ownership is a concept, an idea or the figment of the imagination. Leaving the jurisprudential hunt for final definition of the word it suffices at this point to define it as “right to assert that something is one’s own, and that it is a right which, in principle, may be asserted against all comers.” It is however important to explore briefly the content of the concept of ownership. In former times ownership was regarded as trinity of rights, described by Latin as utendi, fruendi, abutendi- a right of using, which implies exclusive use and excluding others from using it; enjoying the fruits, such as collecting fruits, rents, bank interests etc; and thirdly abusing, which signifies the destruction or in its constructive sense transferring the thing by way of sale, donation or inheritance.
Modern common law western treatises on property defined ownership as bundle of rights. This concept compares land ownership to bundle of sticks. Each stick in the bundle represents a separate right or interest inherent in the ownership. These individual rights can be separated from the bundle by sale, lease, mortgage, donation, or another means of transfer. The complete bundle of rights includes the following:
- The right to sell an interest
- The right to lease an interest and to occupy the property
- The right to mortgage an interest
- The right to give an interest away
- The right to do none or all of these things
The Anglo-American concept of ownership, fee simple ownership, is equivalent to the ownership of the complete bundle of sticks. Each right has its own value and the owner can separately use or apply one right while leaving the others as they are.
1.2.3 Major Concepts: Real Property, Real Estate, and Immovable
According to Black’s Law Dictionary, Real estate means land and anything permanently affixed to the land, such as buildings, fences, and those things attached to the buildings, such as light fixtures, plumbing and heating fixtures, or other such terms which would be personal property if not attached. The term is generally synonymous with real property.
Under the same dictionary, the term real property is defined as land, and generally whatever is erected or growing upon or affixed to the land. Also rights issuing out of, annexed to, and exercisable within or about land.
Property law, in systems derived from English common law, is divided into personal and real property. Real property concerns itself with rights in rem, or relating to land. Personal property concerns itself with rights in personam, or relating to chattels. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights and obligations thereon. Hence, the difference in terminology has no basic difference in the types of property. In Ethiopia, the properties of land and any fixture to land are termed as immovable which are otherwise understood in England or the United States as real estate or real property. The writers may use these terms in this material to describe land interchangeably whenever necessary.
Land: in the law of real property, the term land is including the surface of the earth, the land beneath the surface to the center of the earth, and the air above. The term also includes property permanently affixed to the soil, such as water collected in wells, houses, and fences. The ownership of land may be classified according to the various types of interests raised from each and respective legal system.
What constitutes real property in Ethiopia?
Please read the following provisions carefully:
Art.: 1126. Various kinds of goods
All goods are movable or immovable.
Art. 1l30. Immovables
Lands and buildings shall be deemed to be immovables.
Please also read the following provision from the Swedish Land Code.
Chapter 1,Section 1.Real property is land. This is divided into property units…..
Chapter 2, section 1. A property unit includes a building, conduit, fence and other facility constructed in or above ground for permanent use, standing trees and other vegetation, natural manure….
What do you understand from the reading of the above provisions?
In Ethiopia, lands and buildings together constitute an immovable property. In other words, lands and buildings are what immovables are in our law. We have already mentioned that in the Civil Law from which much of our civil law is said to have been derived, immovable property, i.e. land is real property. This is true of the Swedish law. It follows that contextually, in Ethiopia immovable property is real property, and as immovable is land and buildings, it follows that land and buildings are real property. In short, in Ethiopia, real property is both land and buildings, and not only land.
Therefore, in Civil Law and Sweden, real property is only land; building is simply part of the real property, i.e. land. Whereas in Ethiopia real property is land and buildings, as can be derived from Art.1130 of the Civil Code, building is not defined through land, i.e. building does not seem to be part of land unit.
This kind of approach under our law seems to bear problems of interpretation and application. For example, what constitutes a real property unit in Ethiopia? Does building include the land on which it is constructed? If so to what extent-only the part on which the building stands or some more part? On what basis do we decide this? Assume Kinde constructs a house on the land owned/possessed by Degu, is the house a real property/immovable in this case? Further assume Degu disposes of this plot of land to Semahegn, to whom does the building belong now-Kinde, Degu, or Semahegn?
It is not easy to solve such issues under our law given the definition for immovable/ real property as constituting both land and buildings independently. But such and other questions are easily solved under the definition given for real property/immovable in Civil Law countries such as Sweden.
Be that as it may, for the sake of consistency to our law, throughout this teaching material, when the term real property or real estate or immovable is used, it refers to land, or buildings, separately or both land and buildings. In other words, the term is not used to refer only to land and then buildings indirectly as it is the case, for example, in Sweden.