Law of property

The essentials

Property is a bundle of rights over a thing, valid against others. Law protects the owner's rights to possess, use, enjoy, transfer and exclude others. Property law answers questions such as who owns something, how ownership passes, and what happens when ownership and possession are in different hands. The Transfer of Property Act, 1882 governs transfers of property between living persons in India.

Key points

• Movable vs immovable: land, buildings and things attached to the earth are immovable; goods, cash and vehicles are movable.
• Tangible vs intangible: a car is tangible; copyright, patents, trademarks and shares are intangible. Intellectual property is a form of intangible property.
• Ownership vs possession: ownership is the legal right; possession is physical control. A tenant possesses but does not own.
• Modes of transfer: sale, gift, mortgage, lease, exchange. A transfer may also occur by inheritance (succession) after death.
• Easement: a right to use another's land for a limited purpose, such as a right of way.
• Adverse possession: a person in open, continuous and hostile possession of another's land for the period fixed by limitation law (12 years for private land) may acquire title.
• Constitutional position: the right to property was removed from Fundamental Rights by the 44th Amendment (1978) and is now a constitutional right under Article 300A – no person shall be deprived of property save by authority of law.

Exam tips

• Use examples: a tenant (possession without ownership), a lost wallet found by someone (possession, not ownership).
• Article 300A protects against executive action without legal authority, but not against a valid law.

Common mistakes

• Saying the right to property is still a Fundamental Right.
• Treating possession and ownership as the same thing.