Lec5: Property Law

1. Lec5: Property Law 费维宝 外语学院英语系

2. The Law of Property The old common law(普通法,英美法) was preeminently(显著地) the law of real property(不动产); and the distinction between “real property” and “personal property”(动产) was a crucial one(区别). Generally speaking, real property means real estate(房地产)— land and buildings—but it also includes such things as growing crops. Everything else—money, stocks and bonds, jewelry, cars, carloads of lumber, IOUs（借据）bank deposits is personal property.（动产）

3. We all have a stake （利益）in real estate, since we all live somewhere; and we work, study, and travel somewhere, too. Everyone is a renter（承租人） or an owner（业主）, or lives with renters or owners. But for most of us，that as far as the law is concerned the word “property” means primarily real property（不动产）; personal property is of minor importance（次要；不太重要）.

4. Actually, personal property is legally a minor field（次要领域）. There is no single, special field of law devoted to（专用于） personal property（动产）. Personal property is what contract law, commercial law（商法）, and bankruptcy law—yes, and torts（侵权法）, too—are all about. But there are so many special rules（专门的法规）about real estate that it makes sense to treat this as a separate field of law.

5. Property law is still one of the fundamental branches of law，and real estate is a significant branch of law practice(法律实践). Yet property law is a mere shadow of its former self [财产法仅是其前身的翻版],legally speaking. In fact, one of the major developments in our system, if you take the long view(从长远来看）, is the relative decline （衰落）of real property law. In medieval （中世纪）England, it would have only been a slight exaggeration to say that land law was the law of the land. When Blackstone published his “Commentaries”，midway through the eighteenth century（十八世纪中叶）, one whole volume was devoted （阐述）to land law. A modern Blackstone（现代版的布莱克斯通的《英格兰法释义》） would shrink the topic to a fraction of this bulk 5 or 10 percent, at most, of the total law.

6. Medieval （中世纪）England lived under a feudal system. Power and jurisdiction（司法权）—the cornerstones of wealth and position in society were based on land and land alone. The “lord” was a person who held an estate—a person with ownership（所有权）, mastery, control （处分权与控制权）over land. A person without land was a person with no real stake（真正的相关利益） in affairs of state（国家事物）. The common law（英美法）， as the royal law courts expounded it had little to say to men and women without land（几乎没有考虑到没有土地的人的利益）, who were the majority of the English population. In America, at one time, only persons who had interests in （在…方面有相关利益）land were entitled to vote or hold office（任职）. The New York constitution of 1777（1777年）, for example, restricted the right to vote for state senators to men who owned “freeholds” (不动产所有权）with $100 or more, free and clear of debt （没有债务）(Article X第10条). All this, of course, has ended; land is only one form of wealth. A great and powerful family is one that controls mighty enterprises, rather than one that rules vast estates(控制大量地产的）.

7. Property law still covers a rich and varied group of subjects. To begin with, it asks: What does it mean to “own” land? How can I get title to land (土地所有权) and how can I dispose of it (如何处置) legally? There are issues about deeds (契约), joint ownership(共同所有权), and land records and registration (土地档案和注册); and problems of land finance, including rules about mortgages and foreclosures(取消抵押品赎回权). There is the law of “nuisance“(防害行为法), which restricts me from using my land in such a way as to hurt my neighbors, pouring smoke or sending bad smells onto his land, for example. There are the law of ”easements” (地役权) and the exotic law of “covenants“( 契约) (especially those that ”run with the land”) : these(规则) deal with rights a person might have in his neighbor‘s land—rights to drive a car up his driveway, to walk across his lawn, or to keep him from taking inboarders（寄膳宿者 ）. These are not rights of ownership; rather they are “servitudes”（使用权，可处分另一人财产的权力）restrictions or exceptions to the owner’s rights, in favor of those another.（为他人利益而…）

8. The common law was ingenious （巧妙地）in carving uprights to landinto various complex segments called “estates”（地产）. These could be either time segments or space segments. A “life estate” （终身地产）(my right to live in a certain house, for example, until I die) , is a time segment; so is a three-year lease (出租） of a farm or apartment house. Space segments include air rights（空间所有权） (the right to build on top of certain property) and mineral rights （开采权）(the right to dig underneath it). Nowadays, the condominium（私有共管公寓）（is also popular; I can own a slice of some building thirty stories above the ground. The common law was also quite ingenious in devising （设计）forms of common or joint ownership, with subtle technical differences between them.

9. There are also all sorts of “future interests”（未来权益） known to the common law. Suppose I leave my house to my sister for life, and then to any of her children who might be alive when she dies. The children have a future interest; that is, the time they will get the house is postponed to some far-off（遥远）date. But the future event is certain to happen, and thus the future interest can have value and reality now, while my sister is very much alive. The law of future interests developed in a most gnarled （复杂） and complicated way. Its intricacies（错综复杂 ）drove generations of law students to despair.

10. Another important, fairly new，branch of property law is the law of “land use controls”（“土地使用控制”法）. It deals with the limit imposed on what people can do with their property. This was an issue in the law of nuisance（妨害行为法）, but modern controls go far beyond this. Zoning（区域划定） is a familiar type of land use restriction. Zoning ordinances date from about the time of the First World War; they are now almost universal in cities and villages. Zoning ordinances （区域划定法令 ）divide towns into zones designated for different uses. If my neighborhood is “zoned” residential, I cannot build a factory or run a restaurant on my property. If the zone is restricted to single-family dwellings，I cannot even run a rooming house or rent out apartments.

11. Proverbs • Lawyers are like morticians[殡仪业者]. We all need one sooner or later, but better later than sooner. • 律师就像送葬人，迟早需要，但越晚越好。 • Young lawyers attend the courts, not because they have business there, but because they have no business anywhere else. • 小律师除了出庭无他事可做。

12. real property • 不动产 • 动产 • personal property • intellectual property • 知识产权 • 财产保险 • property insurance • 共同所有权 • Joint ownership

13. 合资公司 • joint venture • 共同债务 • joint debt • 共犯 • joint offender • 土地所有权 • Ownership of land • 商标所有权 • ownership of trademark

14. 国家所有制 • state ownership • 个体所有制 • individual ownership

15. Blackstone：布莱克斯通（1723-1780），英国法学家。1746年取得律师资格；1756-1758年任大学校长法庭陪审法官；1761年进入议会，并任王室法律顾问；Blackstone：布莱克斯通（1723-1780），英国法学家。1746年取得律师资格；1756-1758年任大学校长法庭陪审法官；1761年进入议会，并任王室法律顾问； • Commentaries：《英格兰法释义》。全称为“Commentaries on Laws of England”(1765-1770),布莱克斯通著，全书共分四部分，分别论述人权、物权、个人不法行为和公共不法行为，这部书迅速获得成功，他在世时再版八次。

16. rooming house: A rooming house is a building that is divided into small flats or single rooms which people rent to live in. (AM)