Nevis Sixth Form College| CAPE LAW Unit 2 1

Course Notes

Real Property
Explanation of the term ‘real property’.
When you describe property in legal terms, there are two types of property. The two types
of property are known as real property and personal property.

Real property is generally described as land and buildings. These are things that are
immovable. You are not able to just pick them up and take them with you as you travel.
The definition of real property includes the land, improvements on the land, the surface,
whatever is beneath the surface, and the area above the surface.

Improvements are such things as buildings, houses, and structures. These are more
permanent things. The surface includes landscape, shrubs, trees, and plantings. Whatever
is beneath the surface includes the soil, along with any minerals, oil, gas, and gold that
may be in the soil. The area above the surface is the air and sky above the land. In short,
the definition of real property includes the earth, sky, and the structures upon the land.

In addition, real property includes ownership or rights you may have for easements and
right-of-ways. This may be for a driveway shared between you and your neighbor. It may
be the right to travel over a part of another person’s land to get to your property. Another
example may be where you and your neighbor share a well to provide water to each of
your individual homes.

Your real property has a formal title which represents and reflects your ownership of the
real property.

Personal property describes everything that is not real property. The most significant
difference between real property and personal property is that personal property is
movable. You are able to pick up personal property and take it with you as you travel.
Personal property includes such things as your household goods, investments, and motor
vehicles.

Differences between the following terms:

(a) Realty and Personality
Realty may be defined as the land and buildings thereon and anything permanently
affixed to the land or the building.

Personalty on the other hand is anything which does not fit within the definition of realty.
 Nevis Sixth Form College| CAPE LAW Unit 2 2
Course Notes

For example, a watch, chairs, rugs and cultivated flower plants are personalty, while trees,
buildings, furnace and plumbing as well as the land to which they are affixed are usually
realty.

(b) Corporeal and Incorporeal property;

Corporeal

i. Corporeal property is the right of ownership in material things.

ii. Corporeal property is always visible and tangible.
iii. Corporeal property can be perceived by senses. It can be seen or touched.
iv. Examples -A House, Land, Car, Bike etc
v. Corporeal property is divided into two classes:
1. Movable Property (Chattels) and Immovable property. (Land and buildings)
2. Real and Personal Property

Incorporeal

i. Incorporeal property also called as intellectual or conventional property. it

includes all those valuable interests which are protected by law
ii. Incorporeal property is intangible
iii. It cannot be Perceived by Senses
iv. Examples - example patents, copyrights, trademarks etc.

(c) Moveable and Immoveable property.

Movable property is that property which can be transferred from one place to another
without changing its shape and nature, while on the other hand an Immovable property
is that property which cannot be transferred from one place to another without changing
its shape and nature.

Immovable property refers to land and things underneath and attached to it, e.g.
fixtures, trees, crops, etc. Movable property, on the other hand:

1. can lose its identity by destruction;

2. does not have a permanent location, i.e. it is not stationary, therefore it can be
withdrawn from the jurisdiction of the courts;
3. thus, a dispossessed plaintiff may not be restored to his property;
4. it can be worn out and torn beyond recognition.
 Nevis Sixth Form College| CAPE LAW Unit 2 3
Course Notes

Definition of the terms ‘tenure’ and ‘estate’.

The doctrine of tenure – enables interests in land to be divided spatially, with different
tenants having a range of entitlements tied to particular parcels of land. Tenure refers to
a mode of holding land where by one (the tenant) holds lands of another subject to the
performance of certain obligations. The doctrine of tenure is division of land based on
space. According to the doctrine, all of the land ultimately belongs to the Crown, who
gives it (via 'grants') to people.

This means that no one has absolute ownership.

The people are said to hold the land 'of' the Crown. They are 'tenants' of the crown,
therefore, they are granted 'tenure'. The doctrine creates the system of lord and tenant -
the lord alienating land to a tenant (who can then alienate the land to someone else,
creating a new lord and tenant relationship). There is a mutual exchange or duties and
obligations between the lord and tenant, which are the other core elements of the
doctrine of tenure:

a) Services - the tenant has to provide a variety of services for the lord in return for
his tenure. In return, the lord provides the land, a court (manorial courts) and
protection.
b) Incidents - the lord also had rights to incidents (privilege to act or benefit from the
title of land)

The doctrine of estates – allows fragmentation of interests in land on a temporal basis.

The doctrine of estates is a division of land based on time. It allows multiple people to
have interest in one piece of land for different times (ie, in a leasehold the tenant has a
present right to possession whilst the landlord has a reversionary or future right to
possession).

The doctrine of estates was a natural progression from the doctrine of tenure. The
common law created the ‘estate’ – a right to possession of land for a certain period of
time. This was a brilliant innovation, as it permitted greater flexibility in the division of
land.

Description of types of estates:

(a) Fee simple or Freehold Estate;
 The fee simple is the greatest interest in land recognized by the common law and
is the closest to absolute ownership.
 Nevis Sixth Form College| CAPE LAW Unit 2 4
Course Notes

 This estate comprises the right to use and enjoy the land for the duration of the
life of the grantee and those of his heirs and successors.
 A fee simple estate is freely transferable by inter vivos (between the living)
disposition or by will.

(b) Leasehold Estate;

 A leasehold estate gives a right to possession, use and enjoyments for a definite
period of time, for example, one month, one year, 21 years or any other certain
period of time.
 A leasehold may be carved out of a fee simple, so that the fee simple owner
becomes the lessor (landlord) of the lessee (tenant); a leasehold may also be carved
out of a leasehold in which case the leaseholder becomes the sublessor (landlord)
of the sublessee (subtenant)

(c) Life Estate;

Life estate:

 A life estate was an interest in land granted to a person for life.

 A “life estate” is an interest in real property the duration of which is limited to the
life of an individual. That individual can be the person holding the life estate or it
can be based upon the life of another person.
 It expires upon the life tenant’s death and transferred to the remainderman, who
becomes a fee simple holder.
 It gives the holder of the right to use and enjoy the rents, profits and income of
the property until his or her death, when the estate terminates.
 The life tenant in a “life estate” retains the right to use the property during his or
her lifetime, including the rents and profits. The life tenant must bear the costs of
maintaining the property.
 A life tenant cannot sell or waste the property without the consent of the
“remainderman”. The “remainderman” is the person who will receive full ownership
upon the death of the life tenant.
 It lasts for as long as the life of the designated person continues.

Distinction between legal and equitable interests.

1) Legal rights are those which were recognised by Courts of Common Law. The
courts tended to adopt a very inflexible approach and would deny a remedy to a
deserving Plaintiff merely because he had not observed the proper formalities.
 Nevis Sixth Form College| CAPE LAW Unit 2 5
Course Notes

Whereas equitable rights are those which were recognised solely in the Court of
Chancery, where rules of equity were applied, habitually mitigated the harshness
of the common law by:
a) recognizing new rights; and
b) by granting new remedies to deserving plaintiffs, such as injunctions and specific
performance, despite the absence of the proper formalities.
o Walsh v Lonsdale principle

2) Legal rights, are enforceable as of right. Once the existence of the right is
established it is not really open to the court to consider the merits of the situation
before giving a remedy.

Unlike a right recognisable in law, all equitable rights are enforceable only at the
discretion of the court.

In the context of equitable rights, the maxim ‘he who comes to

equity must come with clean hands’ is of great importance. A person
may be able to show he has an equitable interest in land, but this is
of little use to him if he has ‘dirty hands’, as he could be refused any
remedy by the courts because of his bad behaviour. For example, if
he claims to have an equitable easement entitling him to walk across
another estate owner’s land, he may find he is refused a remedy to
enforce his right of way if he has behaved improperly.

3) Legal estates and interests are rights in rem, binding the whole world.
Equitable interests are rights in personam and they suffer from the infirmity that
they are not binding on a bona fide purchaser of a legal estate in the land who has
no notice of the existence of the equitable interest. Such a purchaser will take the
land free from the equitable interest, which, in effect, will be extinguished.

 In Commonwealth Caribbean, the superior courts are empowered by statute to apply

common law and equitable principles concurrently.

Concurrent Interests or Co-ownership:

Real property may be owned by more than one person. Ownership of real property by
two or more persons is known as concurrent ownership.
 Nevis Sixth Form College| CAPE LAW Unit 2 6
Course Notes

The characteristics of a joint tenancy;

Joint tenants together own the whole property.

A joint tenancy is a form of co-ownership in which two or more co-owners have a separate
but undivided interest in the property. Each joint tenant owns an undivided whole of the
entire estate.

The major difference from a tenancy in common is that when a joint tenant dies, his/her
interest is left to the ownership of the remaining joint tenant or tenants. The right of a
surviving joint tenant to take what a dying joint tenant has is called the right of
survivorship. The right of survivorship provides that if one of the joint owners dies, title
to the real property is transferred to the surviving joint owners.

Such that if A and B are joint tenants, and A dies, then B takes the entire estate. (This
would also work with more than two joint tenants, such as if A, B, and C own as joint
tenants, and A dies, then B and C would continue to own as joint tenants.)

Historically, joint tenancies could only be created with the existence of the four unities, of
time (the joint tenant must acquire their interest at the same time), title (by the same
instrument or deed, or adverse possession, never by intestate or inheritance), interest
(equal, undivided, identical interest or duration), and possession (right of possession in
the whole, although after creation one can give exclusive possession to the other).

Creation
1) Four Unities Required

At common law, four unities are required to create a joint tenancy:

a) Unity of time (interests vested at the same time);

b) Unity of title (interests acquired by the same instrument);

c) Unity of interest (interests of the same type and duration); and

d) Unity of possession (interests give identical rights to enjoyment).

***See pages 139-143 of Bailey V, CAPELAW – Joint Tenancy ***

Severance
It is always open to a joint tenant to avoid the consequences of the right of survivorship
by severing his joint tenancy and thereby converting it into a tenancy in common. In the
 Nevis Sixth Form College| CAPE LAW Unit 2 7
Course Notes

case of Williams v Hensman1 Page Wood VC identified three types of circumstances

that will amount to severance:

1. Act of a joint tenant ‘operating upon his own share’ eg selling their interest in the
property;
2. Mutual agreement; and
3. Course of dealing (mutual conduct).

The characteristics of a tenancy-in-common;

Tenants in common each own their individual share in the property absolutely. They may
hold their respective shares equally or in some other proportion.

Where a person owns an interest in a property as tenants in common with another owner,
then upon the death of that person his estate continues to have an interest in the
property. The deceased’s interest in the property will pass according to the provisions of
the deceased’s will or in the absence of a will in accordance with the rules of intestacy.

Each tenant in common owns an undivided share of the whole estate. This means that
each tenant has a distinct fixed share in the property (eg one third, one quarter, one half).
Each tenant in common interest is descendible and may be conveyed by deed or will.
Each tenant in common can only transfer what interest they own, that is an interest of a
tenant in common. Such that if A and B are tenants in common, B can transfer his
individual interest to another person C so that the property would then be owned in A
and C as tenants in common.

Tenancy in common is a form of co-ownership in which two or more persons are each
entitled to possession of the same real property. Unlike a joint tenancy with the right of
survivorship, there is no right to survivorship in a tenancy in common. A tenant in
common may also have an unequal share of the common property. For example, if there
are two tenants in common, one could have a two-thirds share and the other a one-third
share of the property.

Tenants in common differs fundamentally from joint tenancy in that:

(a) The only unity is the unity of possession; and

(b) There is no right of survivorship.

***See pages 143-144 of Bailey V, CAPELAW – Tenants in Common ***

1 (1891) 70 ER 862, at 867