Property Law Class notes

[Virtual Presenter] Welcome to the first slide of our presentation on Property Law. Today's topic is the nature of property and its relationship with the law. Property is the recognition and control of physical things through the lens of law, with different definitions for laypeople and lawyers. According to John Cribbet, this concept is constantly evolving and has varying meanings in different contexts. For a layperson, property is a physical thing, while for a lawyer, it involves complex jural relations between the owner and others. The relationship between property and law, according to legal positivists, is that law serves as the basis for property rights. In other words, property is defined by the legal system, as seen in Article 260 of the Kenyan Constitution. Without law, property cannot exist, as argued by philosopher Jeremy Bentham. This is because laws create the concept of property, and without them, it would not exist. Prof. Cohen describes property as anything that can be labeled "Keep off X unless you have my permission, which I may grant or withhold," with the endorsement of the state. As stated by Salmond, property encompasses all that is his in law and involves proprietary rights in rem. The concept of property as a despotic dominion can be traced back to Roman law, where it was seen as absolute and despotic control over things. In conclusion, property is a fundamental aspect of our legal system and is constantly evolving, with different meanings to different individuals..

[Audio] Property can have different meanings for different individuals and is a legal concept defined and enforced by the state. Essentially, it is a package of rights recognized by the law. Legal scholar A.M Honore has identified a limited number of "incidents of ownership" commonly found in property systems. These incidents are referred to as "sticks" in the "bundle of rights" metaphor often used by lawyers. The first is the right to possess - the exclusive control over the physical thing owned. In cases of intangible property, possession can be seen as the right to exclude others from using or benefiting from it. The right to manage is the ability to make decisions on how the property is used, including renting, leasing, or even destroying it. The right to income is the right to receive compensation for others using the property, such as rent or royalties. The right to capital is the power to transfer or dispose of the property, including selling or making improvements to it. The right to security is the right to be protected from having the property taken without consent, but the government may have the power to take it for public interest. In such cases, fair and prompt compensation should be provided. The power of transmissibility is the right to transfer the property to another person after one's death through a will or other legal means. Lastly, the absence of term means that ownership of the property is not for a specific time period, allowing for long-term planning and investment. As we can see, property is a complex concept involving various rights and responsibilities..

[Audio] In this training video, we will discuss the concept of property and its key elements as defined by laypeople and lawyers. This concept involves the recognition and control of physical things through the lens of law. It is important to understand the concept of lapsed ownership rights, which refers to the entitlement to a property if obligations such as paying taxes or exercising ownership are not met. This demonstrates the responsibility and accountability that comes with owning property. Another important aspect of property is the idea of a "bundle of sticks," which are essential to ownership and include the right to exclude others from using the property. This right is considered the foundation of ownership, as pointed out by legal scholar Thomas Merrill. However, it is crucial to note that this right is not absolute and cannot be abused or exploited recklessly. The right to exclude does not equate to exclusiveness, and in some cases, multiple individuals can hold proprietary rights to the same property. This can occur in situations such as joint ownership, common ownership, or tenancy agreements. Moving on, we will discuss the second key element of property: the right to transfer. This refers to the ability to transfer ownership rights to another person, either during one's lifetime or after their passing. This can be achieved through selling, donating, or devising the property to someone else. It is crucial to remember the legal principle of "nemo dat quod non habet" which means "no one can give what they do not have." This means that when transferring ownership, one can only pass on the same rights and title that they possess. In conclusion, owning property does not confer absolute control over the property. It is a complex concept that requires understanding and responsibility. Thank you for watching this slide, and we will continue exploring the concept of property in the following slides..

[Audio] Today, we will be discussing the concept of property and its various definitions for both laypeople and lawyers. Property refers to the recognition and control of physical things through the lens of law. Let's take a look at some practical examples. If a man passes away and leaves behind a home, a wife, and two children, but does not leave a will, the wife can enjoy the property during her lifetime. However, if the wife remarries, she will lose these rights. Another aspect of property is the right to possess and use, which allows the owner to manage and enjoy the property and exploit its utility for profit. This may not always be necessary, as in landlord-tenant relationships where the landlord may relinquish possession and use, but still retains property rights. In some cases, property can be considered "no man's land" or Terra nullius, where no one has a recognized claim of ownership. Property can also be seen as a web of relationships, where property owners hold rights and owe duties to others. Professor Wesley Hohfeld categorized these relationships into four distinct entitlements that a property owner can hold: 1) a right, which is an affirmative claim against another, 2) a duty, which is something one ought or ought not to do, 3) a privilege, which is one's freedom from the right or claim of another, and 4) a power, which is one's affirmative control over a given legal relation. This shows that property is not just about physical ownership, but rather a complex network of relationships involving rights, duties, privileges, and powers. We will continue this discussion in the next slide..

[Audio] In today's discussion, we will be exploring the concept of property and how it is viewed by both laypeople and lawyers. Simply put, property is the recognition and control of physical things through the lens of law. Two different perspectives on property will be examined - the basis of expectation according to Jeremy Bentham and the concept of value according to Abraham Bell and Gideon Parchomovsky. Bentham, a well-known philosopher, believed that property is essentially a basis of expectation. This means that it is a disposition to predict a certain event and the belief that one is entitled to count on its occurrence. In other words, property provides security and predictability for individuals. On the other hand, Bell and Parchomovsky see property as a source of value. They argue that value is what unites the law of property and refers to the utility that an owner can extract from the property. This value is inherent in the stability of ownership. The authors also challenge the traditional understanding of property as a bundle of rights and suggest that these rights should serve the purpose of preserving its value. It is important to note that property always belongs to someone or a group of people, whether it is a private individual, a natural or legal person, or a public entity. In Kenya, private land is owned by individuals or legal entities such as trusts and foundations, while public land is held collectively by the nation and managed by public bodies. According to Article 61 of the Constitution of Kenya, public land is defined as land held by the nation and managed by public bodies, not by private individuals or companies. This includes land with no heirs, minerals, government forests, roads, water bodies, and the territorial sea. These public bodies are considered trustees, holding the land for the benefit of the people of Kenya. Finally, the concept of trust, which can be both public and private, will be briefly touched upon. In a trust, the trustee holds the property on behalf of the beneficiary, who is the person for whom the property is being held. This applies to both public and private trusts..

[Audio] Slide number 6 of our presentation on the concept of property will focus on the idea of public land and common land. Public bodies and parastatals, such as state house ministries and the judiciary, have control over public land and can dictate its use. Common land is held communally or collectively by two people or communities, giving both parties some level of control. If the land is open for use by the entire world, it is not considered property. The concept of property can have varying levels of control, permanence, and purpose, but it must be recognized by society and independent of immediate physical enjoyment and control by others to be considered property. Ownership, which determines who the property belongs to, is often seen as the most dominant right a person can have in something. Moving on, we will discuss the rights between a landlord and tenant, with the landlord holding 11 sticks of control over the property, while the tenant is granted only the right to possess and use it. Similarly, between a chargee and a chargor, the chargor is the owner of the land and holds all the rights, while the chargee has a financial interest or security in it. Opinions on ownership may differ, with Roman law considering it the right to enjoy and dispose of something in an unrestricted manner. Our next slide will explore the concept of title and its role in determining ownership..

[Audio] Today, our presentation will focus on the concept of property in traditional African societies. In these societies, the definition of property differs from that of laypeople and lawyers, but ultimately involves the recognition and control of physical things through the lens of law. Under feudal landholding, the King held ultimate ownership of the land and could grant it to powerful nobles in exchange for military service. These nobles in turn would allow lesser nobles to use the land, creating a tenurial relationship between the parties involved. In this system, the nobles were given an estate in the land, but not the land itself. This means that they did not have complete ownership of the land, but rather an interest in the piece of land allocated to them. This is in contrast to the Western concept of ownership, which focuses on an individual's complete control over the land. In traditional African societies, ownership is based on belonging to a specific community and fulfilling reciprocal obligations. Access to land, objects, and resources is tied to one's membership in the community. On the other hand, possession is the relationship between a person and a thing based on physical proximity in space and time. However, possession does not imply ownership, as the possessor only has lesser rights over the property. The saying goes, "possession is nine points of the law," meaning that the person who had prior possession of a thing has a stronger claim to it. Title, on the other hand, is a legal concept that serves as the basis for a claim to ownership of a particular property. It is the set of facts that prove one's legal right or interest in the property. In traditional African societies, title and ownership are closely related, as ownership is based on the legal facts that support one's claim to the property. In conclusion, in traditional African societies, the concept of property is based on belonging to a community and fulfilling reciprocal obligations, rather than individual ownership. Possession and title play important roles in determining one's rights and interests in land and other physical things..

[Audio] In discussing property, it is important to recognize that this term holds different meanings for laypeople and lawyers. At its core, property involves the recognition and control of physical objects through the lens of law. In this presentation, we will focus on the various aspects of property rights. The first aspect is in rem, which refers to the enforceability of property rights against the entire world. This means that the owner of the property has the right to use and exclude others from using it without interference. The second aspect is security of title, which ensures that the owner has the ability to hold the property without fear of it being taken by someone else. This provides certainty in the ownership of property. On the other hand, the absence of security means that the property may be lost at any time. The third aspect is transferability, which allows the holder of property rights to transfer those rights to another person. This enables the owner to sell, lease, or gift the property to others. The fourth aspect is permanence, which refers to the time period of having property rights. This can be a defined period, such as a finite lease, or an indefinite period, as in the case of freehold interest in land. The fifth aspect is exclusivity, which entitles the owner to use, occupy, and develop the property without interference from others. In the realm of property, there are also legal issues to consider. Property, liability, and inalienability rules are the three legal entitlements that protect property rights. For instance, a property rule gives the owner the absolute right to exclude others from using their property. To take the owner's property rights, a voluntary transaction must occur, in which the value of the entitlement is agreed upon by the seller. On the other hand, a liability rule allows for the violation of a property right if the violator is willing to pay an objectively determined value, as determined by the courts. This involves a higher level of state intervention. It is important to note that state intervention has a significant role in property matters..

[Audio] We will be discussing the concept of property and its various forms. Property has different meanings for laypeople and lawyers, but it involves the recognition and control of physical things through the lens of law. One often misunderstood form of property is public property, which refers to goods or resources held for the benefit of the public and not owned by any individual. In Kenya, public goods are held by the county government and managed by the National Land Commission, protected under Article 62 of the Constitution. Public goods are non-rival and non-excludable, meaning their consumption does not limit others from accessing them and they are difficult to restrict or exclude certain individuals from accessing. An example is national defense, which is available for all citizens to use. Many public goods are considered fundamental human rights, protected under the Constitution and must be provided by the government for the benefit of all citizens. Some examples in Kenya include public land, defined as unalienated government land. In conclusion, public goods are important resources owned and managed by the government for the benefit of the public. On the next slide, we will discuss private property..

[Audio] In our previous slides, we discussed the concept of property and its definitions. Now, we will explore the difference between public and private property. Public property, as defined in Article 43 of the Constitution of Kenya, includes several bodies of water and land designated as public. However, it is important to note that these goods are not considered pure public goods, as they are not completely non-rival and non-excludable. Pure public goods, such as air and sunlight, are non-rival and non-excludable, meaning they can be consumed without reducing availability to others and cannot be restricted. Moving on to private property, which is owned by a private individual and grants exclusive rights to the owner. The state has the power to regulate the use of private property for public safety, health, or land use planning. There are two types of property - real and personal. Real property, like land, has its roots in feudal England and is recognized as a tangible asset. On the other hand, personal property is movable and includes incorporeal interests in personal things, such as wildlife. Understanding the difference between these types of property is important, as they have different implications and regulations under the law. That concludes our discussion on public and private property. Let's move on to the next slide..

[Audio] Slide number 11 out of 18. The concept of fungible and non-fungible property will now be explored further, now that we have a solid understanding of tangible and intangible property. Fungible property, such as money or stock shares, can be easily replaced or transferred. Its value lies primarily in trade or sale. In contrast, non-fungible property is more closely tied to the owner's personal identity and has greater sentimental value than its monetary value. An example of non-fungible property is a wedding ring between spouses. According to Margaret Radin, the defining factor of non-fungible property is the emotional pain felt upon its loss, rather than the object itself. This distinction is important because fungible property can be replaced with other goods of equal value, while non-fungible property cannot. This makes it more valuable as it is unique and irreplaceable. Moving on to tangible and intangible property, the former refers to physical items that can be held or touched, such as land, buildings, and personal possessions. Intangible property, on the other hand, has no physical form and includes things like ideas and intellectual property. Goodwill is an example of intangible property that goes beyond tangible assets and is associated with a business's brand or reputation. Other examples include the electromagnetic spectrum, used for broadcasting, and intellectual property rights (IPRs), which are conferred by law for creative works like inventions, literary and artistic works, and commercial symbols. While ideas themselves are not considered IPRs, they become intangible property once they are materialized into a tangible form, like a patent or copyright, and are protected by law. Understanding the different types of property is crucial for both laypeople and lawyers, as it shapes the way we recognize and control physical things through the lens of law..

[Audio] The concept of property has different definitions for laypeople and lawyers and involves the recognition and control of physical things through the lens of law. Slide number 12 will cover the requirements for an invention to be protected under industrial property rights, which are crucial for both patents and utility models. The first requirement is novelty, meaning the invention must be new and not already in existence. Secondly, it must have an inventive step and be non-obvious, and finally, it must have industrial applicability or usefulness. These requirements are conjunctive, all of which must be met for an invention to be protected under industrial property rights. Patents are protected for 20 years under the Industrial Property Act Chapter 509, while utility models, with fewer requirements, have a shorter period of protection of 10 years. Under Section 82 of the Industrial Property Act, an invention may be eligible for utility model protection if it is both new and industrially applicable, with a period of protection of 10 years. Moving on to copyright, it protects various forms of expression of ideas in tangible forms, such as novels, movies, music, and computer software. In Kenya, copyright is governed by the Copyright Act 2001, covering a wide range of works, including literary, musical, and artistic works, as well as audio-visual works, sound recordings, and broadcasts. The period of protection for copyright is 50 years from the date of publication or recording, or from the date of the author's death for literary, musical, and artistic works. Lastly, trademarks serve to identify the goods or services of one trader or manufacturer from another, and sounds and colors can also be trademarked. Trademarks protect words and symbols that identify a particular brand, and if someone else uses a similar mark or goods, they can be sued under the tort of passing off..

[Audio] Slide number 13 will focus on the concept of property in the legal realm. Property can have different meanings for a regular person and a lawyer, but ultimately it involves the recognition and control of physical things through a legal lens. Several cases regarding the protection of registered trademarks will be examined. The first case, Beiersdorf East Africa Ltd v Emirchem Products Ltd, involves the marks Nivea and Nivelin. The second case, Pastificio Lucio Garofalo S.P.A v Debenham & Fear Ltd, deals with the marks Santa Lucia and Santa Maria. The third case, Unilever PLC v Bidco Oil Industries, involves a mark resembling the "blue band" mark of quality. It is important to note that registered trademarks are protected under common law and any infringement is considered passing off. Industrial designs, which protect the aesthetic aspects of an object, will also be discussed. These designs must be new and give the holder exclusive rights to sell goods bearing the design. The protection period for an industrial design is 5 years, with the option to renew twice. The concept of geographical indications (GI) will also be addressed. GI is used to signify products with a specific origin that possess unique qualities or reputation. This can include the use of the product's place of origin in its brand. The main purpose of GI is to establish a connection between geography or origin and quality. It is important to note that GI is not limited to just agricultural products, and can also recognize human factors in the place of origin. An example of this is the Kisii community's soapstone and sculpture, which may be granted GI rights due to their specific skills and traditions. The TRIPs agreement and its relationship to geographical indications will also be discussed. Finally, plant breeders' rights, a form of patent for new cultivars or plant varieties, will be briefly touched upon. These varieties must be new, uniform, and stable, such as the Katumani maize..

[Audio] The concept of property is complex and has different meanings for different groups. For laypeople, it may simply mean owning a physical thing, while for lawyers, it involves the recognition and control of physical things through the lens of law. In today's lesson, we will be discussing the specific topic of plant breeders' rights and traditional knowledge. These rights, granted for trees, vines, and other plant varieties, are essential for ensuring food security and dealing with high-yielding varieties. However, there are challenges that come with these rights, such as the potential for a monopoly in the market and the loss of biological diversity. The use of inorganic fertilizers and pest-resistant seeds in modern farming methods can have negative impacts on the environment and be costly for small-scale farmers. Traditional knowledge, defined as a living body of knowledge passed down within a community, is not adequately protected by current intellectual property rights structures. This limited view of property disregards the relational and group custody aspects and ownership and control by indigenous communities, making traditional knowledge difficult to meet the requirements for patentability..

[Audio] Slide number 15 focuses on the concept of property from a holistic perspective, specifically in the legal aspect. In this perspective, property is seen as an integrated whole with social, spiritual, cultural, ecological, historical, and spiritual/religious aspects. In contrast, the Anglo-American view of property tends to only focus on the material and economic aspects, disregarding the non-material parts. Looking at the idea of property as a commons, historically it was collectively owned and managed under a tripartite structure, known as the inverted pyramid. This structure consisted of the family at the top, clan and lineage in the middle, and the community at the base. This is similar to Article 61 of the 2010 Constitution of Kenya. This framework was the normative basis of property ownership in African customary law, where traditional leaders had control and decision-making power. However, this form of common property was at risk of depletion, similar to the concept of the "tragedy of the commons" described by Garret Hardin. In the African context, access to the common property was based on status, membership, and specific functions, as noted by Okoth Ogendo. In African societies, access to the commons is determined by one's status and membership, and is often function-specific. This is evident in Article 63 of the 2010 Constitution of Kenya, which addresses ethnicity. It is important to understand that access and control of the African commons does not equate to ownership in the Anglo-American sense. User rights are not absolute or permanent, as seen in the Eurocentric notion of human rights. The commons is built on principles of sustainability and equitable access, without social classes based on material accumulation. However, it is essential to acknowledge that the mistreatment of the African commons stems from colonialism..

[Audio] In this slide, we will discuss the element of sustainability in relation to property. Sustainability is a crucial aspect of property, as it ensures both intergenerational and intragenerational equity. Intragenerational equity refers to equity within the present generation. It is important to consider the needs and rights of all individuals within a community when making decisions about property. This is reflected in Article 10(d) of the 2010 Constitution of Kenya. Now let us move on to the pillars of sustainable development. The first pillar is ecological sustainability, which focuses on the conservation of the environment. The second is social sustainability, which reminds us to always involve and consider the needs of the people in development programs and projects. The third is economic sustainability, which emphasizes the importance of equitable access to resources within the present generation. In many communities, property, especially land, serves as a source of livelihood and sustenance. Economic and cultural activities, such as hunting and fishing, take place on these lands. It is also important to acknowledge the spiritual significance of property. In many cultures, property is seen as a gift from a supreme being and is regulated by taboos and religious sanctions. Some spaces are considered so sacred that trespassing on them is considered taboo. In some cases, spirits are even seen as owners of the land. Property is not just about economic rights, but also about a bundle of relationships. These relationships include a relationship of reciprocity with nature, ancestors, future generations, and with each other. These relationships are constantly renewed through rituals and ceremonies. In many cultures, nature is personified as a relative of mankind. Lastly, it is important to understand that property is inalienable. This means that it is not easy to transfer property without the consent of the extended family, clan, or community. This is evident in ancestral land, where the current holders are seen as stewards or custodians, rather than owners or trustees. This highlights the importance of respecting and understanding the cultural and traditional significance of property. To further explore the complex relationship between sustainability and property, let's delve deeper into the topic..

[Audio] As we approach the end of our presentation, we will focus on discussing slide number 17. This slide addresses a crucial aspect of property - the recognition and control of physical possessions through the lens of law. While this may have varying implications for laypeople and lawyers, it is a fundamental component of our societal framework. It is important to understand the distinction between a custodian and a trustee in terms of land ownership. A custodian holds the land on behalf of a beneficiary but does not have the authority to sell it. On the other hand, a trustee can only sell the land for the benefit of the beneficiary. However, land holds significant cultural value and is intertwined with the identity and self-determination rights of communities. As a result, many communities have contested the compulsory acquisition of land. International law recognizes the need for free, prior, informed consent (FPIC) in order to protect the rights of communities and individuals with regard to ancestral land. This means that any acquisition of ancestral land must be voluntary, with prior information and education, and with the consent of the community or individual. It is essential to acknowledge that land is not simply a piece of property. It possesses spiritual, cultural, and social significance beyond its economic worth. This is why there are multiple customary or usufruct rights associated with land. Under English property laws, there is a clear distinction between the physical soil and any structures attached to it, which may be considered part of the land. However, there are common misconceptions about the concept of the commons - it is not terra nullius or an open access resource. The commons do not lead to a tragedy of the commons or inefficiency in managing externalities. Access or control of the commons does not equate to ownership in the Anglo-American sense. In African property regulations, the emphasis is on establishing access rules and social controls rather than distributing entitlements to individuals. This is reflected in the Kenyan Constitution, which recognizes the commons and customary law, as well as the principles of sustainability, culture, and the right to property and a clean environment. It is important to remember that all land in Kenya..