Real v Personal

Real / Immovable v Personal / Movable Property I

Traditionally, the law distinguished between real and personal property. Until the 1950s, different rules applied to the transfer of real property and personal property on death. Real property referred principally to freehold land, while personal property referred to all other interests, including leasehold interests and movables. This distinction and classification is almost irrelevant in modern times.

Personal or movable property refers to goods and other non-fixed property. The rules in relation to personal or movable property are distinct from those relating to real property.  Real property means land, buildings, and other things fixed to that land.  Goods become part of the land or a “fixture” when they are physically attached to the land with the intention that they should become a permanent part of it.

Real / immovable property generally requires transfer by a formal deed, which is a document executed in a formal fashion. In contrast, personal or movable property is usually transferred by delivery. Goods are tangible movable “personal” property. The Sale of Goods Act comprises a detailed code, dealing with the transfer and sale of goods. (See the separate section on the sale of goods).


Real / Immovable v Personal / Movable Property II

Important consequences follow from the distinction between real (immovable) property (land and buildings) land and personal / movable property (goods). Where something is attached to the land permanently with the requisite intention, it becomes a fixture and a part of the land. Its separate ownership is lost, and it passes into the land so that it is thereby owned by the landowner. Whether or not something is a fixture and part of the land depends on the extent to which it is affixed, the nature of the thing concerned and the intention with which it is affixed.

Certain movable items are deemed real property, because of their close association with the land. They are deemed annexed by law or by custom, to the land. Heirlooms transfer with the property to the heir at law by special custom. Much of what is commonly labelled an “heirloom” is not a true heirloom in the legal sense. True heirlooms are an extremely narrow category and very rarely found.

The distinction between movable and immovable property is important in the context of private international law. This is the law which determines which country’s rules apply where there are cross-border elements in a contract or transaction. Almost invariably, immovable property is governed by the law of the place where the property is physically situated. Movable property may be governed by the law of where they are situate and in other contects, by other laws, such as that of the domicile of a testator.


Fixtures

Fittings are sometimes distinguished from fixtures. Fittings are generally non-fixed elements of a building. There may be difficulties in categorising items as goods / fittings or fixtures. Fixtures are usually an integral part of the building, whose removal would cause damage.

The extent of integration and the degree to which they are attached to the land is an important consideration. The function which the item plays is significant. Therefore, a system, such as a heating system is likely to be a fixture. Movable and removable parts of the system are themselves fixtures. Keys being an integral part of a door lock, may be a fixture.

Once a piece of movable property becomes a fixture, it belongs to the landowner, and its separate ownership is extinguished.  For example, bricks become a permanent part of a building and therefore belong to the landowner. This can lead to unfairness and anomalies particularly in building contract scenarios.  For this reason, some jurisdictions have legal requirements for stage payments in building contracts.


Annexation and Accession I

Where a thing becomes affixed to land, it becomes part of the freehold and passes to the owner of the land.   Where anything receives an accession, by natural or artificial means such as pregnancy in the case of animals, conversion of raw materials into a finished product, the embroidering of cloth or conversion or wood or metal into vessels and utensils, the original owner by virtue of his possession of the original materials, becomes owner of the thing in its improved condition.

Under the principle of accession, the ownership of parts passes to the owner of the principal thing.A certain degree of annexation is required to constitute accession. This depends on the circumstances. The principles are analogous to those applicable in the case of freehold fixtures.


Annexation and Accession II

A key question is whether there may be a separation of the original things without destroying or injuring the whole of the new item. Some courts express the issue in terms of the continued separate existence of the part or component concerned. If it can be said to cease to exist, there is annexation. Another approach looks at the degree and purpose of annexation.

The test of injurious removal is the most widely accepted. A distinction is made between items which merge into the principal thing and those which are removable and retain a separate identity.

In the case of a minor accession, the court may grant the discretionary remedy of specific restitution, which may include payment for the value of the accession. The general principle is that a major alteration is dealt with by way of damages for conversion and a that minor alteration is more likely to be dealt with by way of restitution.


Ownership

The owner of land is entitled to all things on and in the land or which may come to be deposited on the land, in the ordinary course of nature. This applies to animate and inanimate things. Once animate things are able to move, they cease to be owned.

Goods which have been abandoned or are in a state of nature may be taken and assumed by a person who takes them into his possession. A trespasser is generally precluded from appropriating things from land on which he trespasses. The law does not permit the wrongful act to establish ownership.


Goods buried in Land

Where a finder finds goods in a public place, he will usually take title to them, provided that it is not possible to trace the true owner. A person who finds things in or under the land of another, will not generally take good title against the landowner. It is assumed that the person in possession of buildings and land, intends to maintain control over them. Public policy considerations lean against allowing a trespasser to take good title as against the landowner.

The principle does not apply to treasure trove. Treasure trove consists of money, coins, gold, silver plate or bullion, hidden in the earth or in another private place, the owner of which is unknown and usually long deceased.

It is presumed that if a person hides treasure in a secret place, that he does not intend to relinquish his property in it, but reserves a right to claim it again when he retrieves it.  If he dies and the secret dies with him, the law vests the treasure in the Crown, at common law.

The State has been held to be the successor in title in respect of this royal prerogative. The State’s title holds good against the finder. The finder has a duty to report the finding by statute.


Part of Land at Common Law

Formerly, the title deeds themselves were deemed part of the land. Timber and crops are part of the land prior to being severed. Similarly, fish in a pond and deer in a park pass with the land. Non-industrial crops or timber are part of the land.

Certain crops, which are the result of annual planting and labour are called emblements. They are always regarded as personal property, even before being severed. Emblements are classified as goods under the Sale of Goods Act.


Animals and Produce

A distinction is drawn between wild and domestic animals. Full property rights can exist in domestic animals, such as horses, dogs and cats. Animals usually found at liberty may be the subject of qualified property. A person may tame or reclaim such animals by his industry and effort. As long as the animal has the habit of returning, the property is retained. If it regains his earlier natural liberty, the property is lost.

Some categories of animals may be taken into possession by being caught and killed. If a trespasser takes and kills animals on the land of another, he does not take title. A farmer who shoots homing pigeons may be liable in trespass, unless he is acting out of necessity, in order to protect his animals or crops.

In the case of animals, the offspring belong to the owner of the female. On one line of authority, where livestock is let or hired either with or without land, the offspring are presumed to remains with the person who hires or leases (lessor) the stock, who bears the offspring. There is alternative authority for the proposition that where livestock is let or hired either with or without land, then unless the lease otherwise provides, an increase in them belongs to the lessee, including the young born of the stock.


References and Sources

Irish Texts

Modern law of personal property in England and Ireland 1989  Bell

Consumer Law Rights & Regulation 014       Donnelly & White

Commercial Law White           2012 2nd ed

Commercial & Economic Law in Ireland        2011 White

Commercial Law 2015 Forde 3rd ed

Irish Commercial Precedents (Looseleaf)

Commercial & Consumer Law: Annotated Statutes 2000  O’Reilly

UK Texts

Personal Property Law: Text and Materials  2000  Sarah Worthington

Personal Property Law (Clarendon Law Series) 2015 Michael Bridge

The Law of Personal Property 2017   Professor Michael Bridge and Prof. Louise Gullifer

The Principles of Personal Property Law 2017  Duncan Sheehan

Crossley Vaines on Personal Property 1967 by J C Vaines

The Law of Bills of Sale 2017 James Weir

Palmer on Bailment 2009  Norman Palmer

The Reform of UK Personal Property Security Law: Comparative Perspectives  2012 John de Lacy

The Law of Personal Property Security 2007  Hugh Beale and Michael Bridge