DEFINITION AND CLASSIFICATION OF PROPERTY

CLASSIFICATION OF PROPERTY UNDER THE COMMON LAW

Res incorporales are incorporeal property such a copyright and patents.

Res Corporales are corporeal property which are tangible and can be
physically touched.

Moveable / Immoveable Property

Immoveable Property: refers to land and thing underneath and attached to
it.
o Land is indestructible and;
o Forever retains its location. It is impossible to withdraw the courts
jurisdiction.
o Land is specifically recoverable
o Land endures forever and can sustain rights as easements or
servitudes which cannot subsist in moveable property.

LEASEHOLD INTERESTS AS IMMOVABLE PROPERTY

BARBADOS AND TRINIDAD AND TOBAGO

A lease is a grant of exclusive possession for a fixed term or years or period

of years which is definite in duration, in return for periodic payment of money.
In Trinidad and Tobago and Barbados (s 3(1) of Property Act 1979) a
leasehold interests can exist as legal estates.
Land is then defined to include legal estates in land, whether or not they five
right to possession of the soil s2. Property Act 1979.
o Thus it can be deduced that in Trinidad and Tobago as well as Barbados
as lease can me considered immovable property or land.

BELIZE

Position is not quite free from doubt.

s2 Property Act 2000 defines land to include land of any tenure...
in Re Booker the English Courts considered leases to be included in land of
any tenure
o Thus it can be deduced that leases are land in Belize and therefore
immovable.

MOVABLES

Movable property can:

o Lose its identity by destruction
o It does not have a permanent location
o If P is dispossessed he can be restored to him the very thing from
which he has been dispossessed.
o It can be worn out and torn beyond recognition and may not last
beyond the life of man.
The movable / immovable classification under the common law is used to
resolve conflict of law issues.

PERSONALTY/REALTY

It is not easy to distinguish between personalty and realty. In England before

the Land Transfer Act of 1897, realty passed under the common law
directly to the heir on intestacy or to the devisee where the property
was willed. On the other hand, personalty was vested in the first instance in
the personal representative of the deceased. However, after the Act both
personalty and realty was vested directly in the personal representative.
Personalty could be will but it was not until the Wills Act of 1540 along with
the Tenures Abolition Act of 1660 that reality could be the subject matter of
testamentary disposition.
Personalty could be the object of absolute ownership but realty under the
common law was subject to incidents of tenures and could not be absolutely
owned.
The remedies for recovery were notable different:
o The owner of realty could if dispossessed by virtue of action realis be
put into possession of the very thing from which he was dispossessed.
There was right in rem.
o The owner of personaltys remedy for loss was however in personam,
and the defendant was obliged personally to remedy the wrong of
breach complained of, there P did not get the dispossessed property
back as a matter of right it was an option between that and damages
for the defendant.
Seisin
o This is the possession of a freeholder of a land, the actual possession
enjoyed directly by him or by a leaseholder or copyholder who holds of
him.
o A trespassers seisin is good against the world except the disseised
tenant who brings a claim before the statutory limitation has expired.

Lord McNaughten in the 1907 case Perry v Clissold, It cannot be disputed

that a person in possession of land in the assumed character of owner... has a

perfectly good title against all the world but the right owner.
In that case, Clissold fenced in land in 1881 after which he leased the land to
tenants and even paid rates and taxes on it. Ten years after Clissold took
possession of the land, the Government tried to claim it arguing that he was a
trespasser. After his death his estate sued for compensation of the land and
was successful.
o When one is disseised he loses his usual rights and is left only with a
right of entry which in many respects is related to seisin but is not
seised because two persons cannot be seised at the same time (Leach
v Jay)
o The lost seisin can be regained only by means of an action instituted
within the statutory limitation period for recovery. If the disseised fails
to do this, he loses all rights to the property.
o Seisin is a term of art and has never got into such ordinary use so as
to lose its technical and distinctive meaning.
Leach v Jay
R. Roberts on his death devolved on his daughter and
heiress at law Anne. Annes mother Mary however under
the guise of a pretend will entered and retained
possession of the estate until her death. Mary, when she
died devised to Jay, who entered possession. Anne died
have devised to Leach all real estate (if any) of which I
died seised.
Held that she was not seised of the property and as
such could not pass it on to Leach.
o Case goes against the clear intention of R.
Roberts. Criticize it.
o In 1837 by the Wills Act and 1845 (as well as the Caribbean equivalent:
1992 Property Act of Antigua and Barbuda) the right of entry could be
devised and disposed of inter vivos.
o The disseisor has all the rights of ownership and can devise the
property.
Asher v Whitlock where W enclosed a piece of waste land and
occupied it until his death leaving the wasteland to his wife on
the condition that she remained unmarried with remainder
interest in his daughter Mary. The daughter and the mother
continued to reside on the property, the mother getting
remarried to the defendant who moved into the property. Both
mother and daughter died before D. The daughters heir at law
brought an ejectment action against the defendant who argued

o
o

that he was the last adverse possessor and was entitled to keep
the property until ejected by someone with a better right to the
property.
It was held that the interest in land which the accords to
an adverse possessor has all the attributes of property,
thus it can be devised. Thus, Williamsons will was valid.
Seisin finds expression in possession: possession is nine tenths of the
law.
Seisin cannot be in abeyance.

PERSONALTY

Two categories:
o Chattel Real which is a lease. A lease was not considered as realty
because it did not descend to the heir on intestacy and there was no
real remedy for the enforcement of a leasehold interest and a lessee
did not have seisin. This is why under common law leases were not
considered as realty but personalty but as time developed it became
more akin to realty. It gained protection through the action of a writ of
trespass and it was always immoveable as realty was. However, an
indeterminate during is an essential character of all freehold estates
and the quality of inheritability. Thus, leases were considered as
chattel real.
Remember Trinidad and Tobago, Barbados and Belize

Chattel Personal

Choses in possession are things which are visible tangible and capable of
direct physical control and possession. They are capable of being transferred
by manual delivery, such a cigarette. They are not permanent or stationary.
A chose in action is incorporeal; it has not physical existence and is not
visible. These include debt, shares, copyrights, trademarks as well as
contractual rights affecting land and other interests such as rent for
letting and mortgage debt secured on land. While choses in possession
have always be transferrable it is not until 1873 when a chose in action could
be transferred, by assignment.

CLASSIFICATION OF PROPERTY IN ST. LUCIA

Under the civil law property may be immovable by;

o Destination
o Attachment
o Determination of Law
o Nature

IMMOVABLE BY NATURE
o Art 335 defines immoveable by nature as consisting of;
Lands
Steam mills, water mills, wind mills
Buildings
Growing trees, crops and fruits are immoveable but
become movable when severed from the soil.
o It appears as only the things specified in Art 335
can be immoveable by nature.
IMMOVABLE BY DESTINATION
o These are objects which would have normally been movables but
which are considered to be immovable by reason of their attachment
to immovable property.
Article 337 describes them as moveable things which a
proprietor has placed on his property for a permanency of which
he has incorporated therewith, are immoveable so as long as
they remain there.
o For property to be classified as such, three requirements must be met:
Affixation by the Owner of the Immovable
Although there is no requirement that the movable should
belong to the owner of the land, it must be affixed by the
owner of the land. So chattel or movable property belong
to a tenant cannot become immovable if it is affixed by
the tenant.
o Under common law movable property of a tenant
can become immovable unless circumstances show
that it was not intended.
Destination
In order to a movable property to become immobilised it
must have been affixed on placed on or in the immovable
property for the purpose of the service or exploitation of
the immovable property. (Art 337)
o Eg: pressers, boilers, vats, tuns, manure, straw,
cattle, carts, cranks.
Intention to Immobilse the Movable
Art 337 speaks to the fact the item should have been
placed on the land for permanency... or incorporated
therewith. So the controlling factor in determining if the
status of a chattel affixed to the land is the intention to
incorporate for permanency. Thus, even if it rests on its
own weight, it is possible for it to become an immoveable
once the intention can be proved. Intention seems
conclusive under civil law. This is the converse of the
common law which a slight attachment is require after

which intention gives rise to a presumption which can be

rebutted.
Immovable by attachment: Art 338 read the section on page
17, dont think it will come.
Immovable by deterimination of Law: Art 340 read section on
page 19
LEASES: leases of less than nine years (Art 346, 345 provide
that leases which are not emphyteusis are movables) are
presumed to be moveable whereas long leases emphyteusis
seem to be made immovable by Art 339.
Not doing Guyana for classification but for fixtures!!!!