REAL PROPERTY LAW

The first reason is that it is both just and appropriate that the person putting in the work and effort into an intellectual creation has some benefit as a result of this endeavor. The second reason is that by giving protection to intellectual property many such endeavors are encouraged and industries based on such work can grow, as people see that such work brings financial return.

Intellectual property rights may also help to extend protection to such things as the unwritten and unrecorded cultural expression of many developing countries, generally known as folklore. With such protection they may be exploited to the benefit of the country and cultures of origin.

The reason for States to enact national legislation, and to join as signatories to either (or both) regional or international treaties governing intellectual property rights include:

· to provide incentive towards various creative endeavors of the mind by offering protections;

· to give such creators official recognition;

· to create repositories of vital information;

· to facilitate the growth of both domestic industry or culture, and international trade, through the treaties offering multi-lateral protection.

REAL PROPERTY LAW

READING 1: INTRODUCTION TO PTOPERTY LAW

The following text serves as an introduction to basic concepts and terms used in real property law, many of which have been in use for hundreds of years.

Vocabulary notes

Exercise 1. Read the text and decide whether these statements are true or false.

1. The term of years of a freehold estate is not fixed.

2. The term reversion refers to the passing of real property to the State when the owner of the property has died and has no legal heirs.

3. A licence grants exclusive possession of a property.

4. The Statute of Frauds permits oral contracts in the case of leases if the duration is more than a certain number of stipulated years.

Introduction to Property Law

English-speaking jurisdictions generally distinguish between real property and personal property. Real property is a general term for land, tenements and hereditaments. On the other hand, personal property refers to everything which does not fall under the heading of real property. This brief summary addresses key terms in relation to real property.

Real property can be divided into freehold estates and leaseholds. Freehold estates are those whose duration is not determined. By contrast, the duration of a leasehold is fixed or capable of being fixed. Essentially, there are four types of freehold estate: the fee simple, the fee tail, the life estate and the estate pur autre vie.

As its name suggests, a fee simple refers to a whole interest in a piece of real property and may pass through sale, inheritance or reversion, i.e. when the owner dies and there are no persons alive who have the right of inheritance, the property reverts to the State. Reversion is also referred to as an escheat. A fee tail is an inheritable estate which lasts as long as the original grantee or any of his descendants live. A life estate is an estate granted only for the life of the grantee. When the life tenant dies, the remaindermen take possession, or the land reverts (see above). An estate pur autre vie is similar to a life estate, except that the estate is granted for the life of someone other than the grantee.

A leasehold is generally created through what is referred to as a lease, which is a contract for exclusive possession, generally for a term of years, usually for a specified rent or compensation. A leasehold should not be confused with a licence. The crucial test for determining whether a lease or a licence has been created is whether there is exclusive possession. If there is no exclusive possession, there is no leasehold. A good example of this is where the property remains in the control of the grantor, such as in the case of a hotel room or dormitory.

Generally speaking, the Statute of Frauds requires that agreements regarding the sale of or interests in land must be in writing to be enforceable. In respect of leases, the Statute of Frauds for a particular jurisdiction will specify that leases for more than a certain number of years must be in writing to be enforceable, e.g. three years in England. For land sales, the Statute of Frauds requires a formal writing.

There are numerous other areas of real property law which commercial lawyers deal with on a day-to-day basis. Real property law includes such things as easements, usufructs, mortgages and other financing measures.

KEY TERMS: PARTIES REFERRED TO IN PROPERTY LAW

Exercise 2. The key terms heir, grantee and tenant all appear in the text. This is a more complete list of parties named in legal documents dealing with real property law. Match each pair (1-3) with its explanation (a-c).

LANGUAGE USE 1. CONTRACTING IDEAS

Two ideas can be contrasted with each other using the words whereas and while:

Real property refers to land and anything permanently attached to the land, whereas / while personal property refers to all other property.

Both whereas and while can appear at the beginning of the sentence as well:

Whereas / While real property refers to land and anything permanently attached, to the land, personal property refers to all other property.

It should be noted that whereas is used in Legal English in two distinct ways. The first use has the meaning of 'but on the contrary' (as in the present example). The second use is at the beginning of recitals, i.e. the setting forth of facts or other important matter in a deed, contract or other legal document.

Whereas, the parties wish ro amend certain terms of the Sates Contract: and Whereas, certain capitalised terms not otherwise defined herein are defined in the Sales Contract ...

Exercise 3. Contrast these key terms using whereas or while. You may need to consult the glossary.

LANGUAGE USE 2. CLASSIFYING AND DISTINGUISHING TYPES OR CATEGORIES

Classification is an effective way to structure complex information so that it can be more easily understood by listeners. Paragraphs 1. 2 and 6 of the text contain verbs and phrases for classifying ideas and distinguishing categories:

distinguish, divided, fall under the heading of, includes, is a general term for, refers to, types

Exercise 4. Complete these sentences using the classification words and phrases giving above.

1. English-speaking jurisdictions generally ….. / make a distinction between real and personal property.

2. Real property ….. land, tenements and hereditaments which, upon the death of the owner, pass to his heirs.

3. Personal property ….. everything which does not ….. real property.

4. Real property can be ….. / classified / categorised / grouped into freehold estates and leaseholds.

5. Essentially, there are four / kinds / classes / categories of freehold estate: the fee simple, the fee tail, the life estate and the estate pur autre vie.

6. Real property law ….. / encompasses such things as easements, usufructs, mortgages and other financing measures.

Exercise 5. Rewrite sentence 4 from Exercise 4 in four different ways, each using a different classifying phrase. Make changes in sentence structure or add words as necessary.

Example: Real property includes such things as freehold, estates and leaseholds.

LISTENING 1: EASEMENTS

One of the key terms mentioned above is easement, which is a right acquired for access to or use of another person's land for a specific purpose. In the following listening exercise, you will hear an excerpt of a seminar held by a lawyer as part of a training course for estate agents. It is the lawyer's task to provide basic legal information on issues which the agents may one day encounter in the course of theif work. In the excerpt, the lawyer presents a general classification of easements, explaining the different types his listeners need to know about.

Exercise 6. Before you listen, discuss this question.

What other legal issues might an estate agent need to be informed about?

Exercise 7. Listen and answer these questions.

Now, I'd like to move on to another topic which you'll surely encounter in your work as estate agents. I'm going to tell you a bit about the principal types of easements In our Jurisdiction. First, allow me to define the term: an easement is the legal right of another to use part of your property.

Generally speaking, we distinguish between two fundamental types of easements: temporary and permanent. Temporary easements are granted for a definite period of lime. The reason for this might be lo allow access to properly during construction, for example. The second kind of easement, a permanent easement, lasts for an indefinite period, as the name suggests. Permanent easements can be classified into three common types. These three are the easement in gross, the prescriptive easement and the easement appurtenant. Permanent easements are always recorded on the deeds and survive any sale of the property.

I’ll begin with the first type. the easement in gross, which is also the most common. The easement in gross only involves one property, the property subject to the easement. This type includes those easements which are given to a quasi public corporation, such as the electric or phone company. An easement in gross is usually recorded in the public records when a piece of land is sub-divided.

Let's move on to the second type of easement the prescriptive easement. This refers to Die right lo use another's property that is acquired by what is known as an open, notorious and continuous' use. Open use means that the use is obvious and not secretive, while notorious means that the use has lo be clearly visible. The use of the land also must have been continuous for the statutory period, which is 20 years in our jurisdiction.

Finally. I'll come lo the third type, the easement appurtenant. When an easement benefits an adjoining property, such as for a driveway or walkway, we call it an easement appurtenant. This type of easement is usually recorded when a sub-division is created by dividing a property into two or more smaller lots. One important sub-type of an easement appurtenant is called an 'easement by necessity'. This is created to reach a landlocked property, which does not have access to a public road.

What are the legal issues connected with easements? What kinds of disputes can occur and how can they be avoided? Well, we can distinguish three types of dispute which often occur ...

1. What is the purpose of a temporary easement?

2. Explain what is meant by open, notorious and continuous use.

3. What does an easement by necessity refer to?

Exercise 8. Complete these sentences, in which the speaker classifies information. Use no more than three words for each space.

1. Generally speaking, ….. two fundamental types of easements: temporary and permanent.

2. Permanent easements can be ….. three common types. These three are the easement in gross, the prescriptive easement and the easement appurtenant.

3. This ….. those easements which are given to a quasi-public corporation, such as the electric or phone company.

4. ….. of an easement appurtenant is called an easement by necessity.

5. Language use 3: Giving a presentation -structuring and signalling transitions

LANGUAGE USE 3. GIVING A PRESENTATION – SRRUCTURING AND SIGNALLING TRANSITIONS

A presentation should begin with a clear statement of the topic. You should also use language for classifying ideas to help you structure your talk. For example:

My presentation will deal with the topic of X. I will discuss the three most important types of X in my jurisdiction.

I would like to explain X in my jurisdiction. In our country, we distinguish between two main classes of X ...

The overall structure of the presentation will be determined by the elements in the classification scheme, i.e. a three-part classification will lead to a presentation which includes an introduction, three main points and a conclusion.

When making the transition from one point to another, it is common to signal the move to a new point by using phrases such as the following:

Moving to my second point, ...

That brings me to my next point.

To turn to / Turning to the second type of X, ...

Exercise 9. Listen again. How does the speaker indicate a change to a new point? Add the signals to the list above.

SPEAKING 1. AN ASPECT OF REAL PROPERTY LAW

Exercise 10. Choose a topic related to real property law in your jurisdiction which lends itself to structuring by means of classification. Prepare a short presentation, making use of the phrases for classifying, structuring and signalling presented above.

Some possible topics are:

− Types of tenancy agreements

− Types of concurrent ownership of property

− Types of estates

− Tenant's rights

− Landlord's rights

READING 2: A LAW FIRM’S PRACTICE AREAS

Law firms commonly print brochures or create web pages in order to make their areas of expertise known to prospective clients. This kind of text, or competency statement, is usually entitled 'Practice Areas' and generally lists the areas of the law in which the firm has performed successfully and the areas which staff members have most experience in.

Exercise 11. Read the competency statement of a large American law firm. What area of the law does the firm handle in addition to real property? What two types of disputes are explicitly named in the text?

Date: 2014-12-22; view: 3864