KudoZ home » English to Polish » Law: Contract(s)

property vs. estate

Polish translation: majątek / masa spadkowa

Advertisement

Login or register (free and only takes a few minutes) to participate in this question.

You will also have access to many other tools and opportunities designed for those who have language-related jobs
(or are passionate about them). Participation is free and the site has a strict confidentiality policy.
20:07 Oct 21, 2007
English to Polish translations [PRO]
Social Sciences - Law: Contract(s)
English term or phrase: property vs. estate
niby wszystko jasne, ale właśnie mnie zaćmiło. Mam umowę małżeńską majątkową i taki szpas:

WHEREAS, the parties desire to fix, limit, and determine by this Agreement, insofar as permissible by law and pursuant to the New Jersey Uniform Premarital Agreement Act, N.J.S.A. 37:2-31 et seq., the interests, rights and claims that will accrue to each of them in the ***property and estate*** of the other by reason of their marriage to each other, and to accept the provisions of this Agreement in lieu and in full discharge, settlement, and satisfaction of any and all interests, rights, and claims that otherwise each might or could have, under the law, in and to the property and estate of the other, both before and after the other's death....

chyba się zapętliłam :(
bartek
Local time: 13:51
Polish translation:majątek / masa spadkowa
Explanation:
.

Jakoś nie wydaje mi się, żeby mogło być inaczej.


--------------------------------------------------
Note added at 14 hrs (2007-10-22 10:20:21 GMT)
--------------------------------------------------

Przyszło mi do głowy czy przypadkiem nie chodzi o rozróżnienie polagające na tym, że estate to majątek wniesiony (posiadany) w momencie zawarcia małżeństwa, a property to majątek zgromadzony później? Ale to tylko przypuszczenie oparte bardziej na Twoim tekście niż definicjach.

Gdyby rzecz działa się w Anglii lub Walii, to można się zastanowić nad "nieruchomościową" definicją "estate" (zob. poniżej):

estate n. 1. (in land law) Technically, the duration of tenure in land. In strict legal theory, the Crown has ownership of all land in England and Wales. All others hold an estate (a period of time for which the tenure will last) of the Crown. In practice, the freehold estate fee simple absolute in possession is indistinguishable from absolute ownership. Other freehold estates exist, such as the life interest and the fee tail, but these are far less common and will exist as part of a trust or settlement and be equitable rather than legal. The leasehold estate or term of years absolute is the estate held by a tenant from a landlord. It, like the fee simple absolute in possession, is capable of being a legal estate.

2. (in revenue law) The aggregate of all the property to which a person is beneficially entitled. It covers not only tangible property, but also equitable rights, debts, and any other rights capable of being reduced to a money value (O'Neill v IRC [1988] STC (SCD) 110; Melville v IRC [2001] EWCA Civ 1247, [2001] STC 271). There is no rule that prevents an asset from being in two different individuals' estates at the same time. Excluded property, which includes most reversionary interests and certain foreign matters, is not taken into account for the death charge (see inheritance tax).

How to cite this entry:
"estate n." Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. Huddersfield University. 22 October 2007

a dla porównania

property n. Anything that can be owned. A distinction is made between real property (land and incorporeal hereditaments) and personal property (all other kinds of property) and between tangible property (that which has a physical existence, e.g. chattels and land) and intangible property ( choses in action, including intellectual property, and incorporeal hereditaments). For purposes of the law of theft, property includes all real, personal, and intangible property, although land can only be stolen under certain specified conditions. For purposes of the law of criminal damage, property does not include intangible property.




How to cite this entry:
"property n." Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. Huddersfield University. 22 October 2007 <http://www.oxfordreference.com/views/ENTRY.html?subview=Main...

i jeszcze US (jeśli masz chwilę czasu na czytanie ...)
Property, as conceptualized in American law, consists of rights regarding things that are binding upon others and that are endorsed by the state. The objects of property include tangibles, such as land and automobiles; intangible claims to wealth, such as corporate stock; and inventions and literary works, now termed “intellectual property.” The most important property rights are those of use, dominion, and alienation. Use rights permit the owner to employ the resource for economic benefit or personal satisfaction. Dominion rights permit the owner to exclude others. Alienation rights permit transfer of the owner’s use and dominion rights by sale, gift, or testamentary disposition. This view, that property consists of a bundle of rights with respect to others, differs sharply from the everyday notion that property consists of things that one owns.

In general, American law treats rights in most valuable resources as property. It presumes that property is held by individuals, as opposed to family or communal groups or the state. Its preference for practical finality over theoretical perfection is manifest in the concept of adverse possession, by which a person occupying land without permission for a modest number of years acquires a fresh title that is superior to old claims of ownership. The American legal concept of property has no fixed meaning or clear-cut structure. It has developed from a multitude of European and indigenous sources, the most important being the English common law. As the notions of utility and justice that have shaped it continue to evolve, the concept of property evolves as well.

Pre-Colonial Sources.
The sources of American property rights include the classical Roman law (c. A.D. 1–250) which recognized ownership (proprietas) of tangible things. Roman occupation of Britain (55 B.C.–c. A.D. 410) was terminated by Angles, Saxons, and Jutes, who came from the Danish peninsula and north Germany. Chieftains of these riding bands granted tracts of land to their followers. As the Anglo-Saxon concept of kingship developed, this customary practice was regularized through the issuance of charters granting occupation of land in exchange for payments and services.

Anglo-Saxon rule in turn was overthrown in 1066 by William the Conqueror, whose Norman French invaders had their origins in Norway. While the Normans never adopted Anglo-Saxon landholding practices in a formal sense, these practices formed the basis of immemorial custom that shaped the early common law. William’s grants of land differed from previous practice in that they generally were conditioned upon personal oaths of fealty and promises to supply specified numbers of knights for battles. Over the next two centuries, paid armies replaced knights and the economic value of land was increasingly recognized. Correspondingly, feudal obligations of military service were replaced by money rents, and the Statute Quia Emptores (1290) permitted landholders to sell their estates. Over time, the cost of royal wars led to continued strife with Parliament, but by the Glorious Revolution of 1688 English law had evolved so even the king was subject to the rule of law.

Property in American Colonial Times.
The American concept of property was shaped by economic and political developments during the colonial period (1607–1776). In England, land title ultimately was vested in the crown. Those who held land through royal grants of tenure formed a highly concentrated elite. In America, land was plentiful and colonial proprietors had to lure immigrants with the promise of absolute title. Also, colonists had absorbed the teaching of the English and Scottish Enlightenment that government was a compact among individuals for the preservation of their liberties. The most influential Enlightenment author was John Locke, whose Second Treatise of Government (1688) proclaimed that men had property rights in themselves and in those natural resources fashioned into usable things through their labor.

By and large, the indigenous Indian tribes were hunters and gatherers; they did not build permanent structures or delineate individual landholdings. While such communal use of land was sensible given the lack of towns and intense agricultural development, it was not recognized by Europeans as creating property. Thus, European nations distributed lands without regard for customary American Indian rights (see native Americans and the law: history).

The Development of Property from Independence Through the New Deal.
When the colonies achieved independence, the English common law of property was received as the law of the new states. The ratification of the United States Constitution in 1787 did not substantially affect the common law basis of property, since the Constitution provided the federal government with only limited powers. Furthermore, the framers regarded the protection of property as a great object of the Constitution and a necessary condition for the preservation of liberty.

The powers delegated to Congress enhanced the importance of property by establishing a national common market. Among them were the power to coin money; to regulate interstate, foreign, and American Indian commerce; to establish post offices; to grant patents and copyrights; and to regulate bankruptcy (Article I, Section 8). Similarly, among the few prohibitions imposed upon the states were the coinage of money and the impairment of contracts (Article I, Section 10). The Fifth Amendment to the Constitution) prohibited the taking of private property by the federal government without just compensation and similar provisions were incorporated in all state constitutions. State statutes facilitated the incorporation of businesses and placed on a firmer footing the rights of investors whose tangible property consisted of shares of corporate stock.

During the rapid industrialization that followed the Civil War, states responded to perceived abuses by businesses with legislation regulating railroad and utility rates as well as labor conditions. (In so doing they relied upon the police power, the inherent right of the sovereign to protect the public health, safety, and welfare.) Late in the nineteenth century the Supreme Court held that such regulations must present a reasonable return on investments in regulated property and, more fundamentally, that the right to contract to enter into a lawful occupation or to acquire property was a liberty interest, protected by the due process clause of the Fourteenth Amendment. In cases such as Lochner v. New York (1905), which came to epitomize the Court’s approach, it would ascertain independently whether a regulation was necessitated by the public health, safety, or welfare, or whether it deprived business or employees of their property or contract rights arbitrarily and in violation of their substantive right to due process of law. In the wake of the Great Depression and the New Deal, the Court backed away from this approach. Ever since its decision in United States v. Carolene Products Co. (1938), the Supreme Court has permitted the government wide latitude to impose economic and social regulations, shifting its closer scrutiny to such rights as freedom of speech and freedom from racial discrimination.

A problem inherent in the Court’s post–New Deal jurisprudence is that the legal concept of property encompasses both dominion rights and use rights. The value of the right to exclude others from land, for instance, may be insignificant without the owner’s additional right to use the land. In monetary terms, the value of a thing used in commerce depends upon the anticipated income generated by that use. Therefore, there is an internal inconsistency in the familiar assertion that property (dominion rights) is protected from uncompensated seizure by the Fifth Amendment’s takings clause, while the business activity (use rights) that generates income may be regulated stringently under the police power.

Property in Contemporary America.
A marked attribute of contemporary American property law is its growing complexity. At the beginning of the twentieth century, property was conceptualized as real property (land and buildings), personal property (other tangible things), and intangible rights, such as stock, patents, and copyrights. By the end of the century these concepts had changed significantly.

Over a millennium, real property had acquired a unique legal status and claim on popular affections. For many centuries, real property was the basis of family wealth and power. Given its relative permanence, real property ownership had to be tracked over long periods of time. For these reasons, changes in the few permissible variations from complete ownership of land, such as life estates and leases, came slowly. As a basis of economic self-sufficiency, real property ownership reduced the need to remain in favor with the king and thus facilitated the quest for political rights.

Through the early twentieth century, ownership of land used for commercial purposes was embodied in the simple deed of the equity owner, and the simple mortgage protecting the lender who advanced funds for the land’s purchase. These relationships have been transformed by the growth of modern financial institutions, including pension and mutual funds, and the proliferation of distinctions in tax law. Now hundreds of ownership rights might exist in a shopping center or office complex project, each tailored to the time horizon, aversion to risk, and tax status of a particular type of investigator.

The residential lease, which earlier was conceptualized as the transfer of ownership of a land for a term of months or years, has been reconceptualized by the landlord-tenant revolution of the mid-twentieth century into a contract for the provision of housing services. This change permits courts to read into leases various “implied warranties” by landlords that never were part of traditional property law. In fact, these warranties result from police power regulation rather than contract, since the implied provisions cannot be disclaimed even by tenants’ most explicit agreements. As in feudal times, the rights of residential landlord and tenant are determined by their status rather than by their bargain.

Property rights in residences, farms, and other lands occupied by their owners have been reconceptualized as well. In the United States, ownership of land traditionally has been viewed as carrying with it the right to make economically useful improvements. To be sure, owners could not commit acts of nuisance, which deprived neighbors of the right to reasonable enjoyment of their lands. Beyond this, however, owners could not be required to leave land undeveloped simply to provide open space for the community. In many European nations, on the other hand, use rights in land are limited to existing uses. Subsequent development is predicted upon obtaining permission from local planning authorities.

Comprehensive zoning was approved by the U.S. Supreme Court in Village of Euclid v. Ambler Realty Co. (1926). It was adopted rapidly by almost all American cities. Although predicated on the notion of sound planning, zoning has mostly served to segregate residential from industrial and commercial districts and to protect property values and aesthetics in homogenous suburban communities. While the more blatant forms of exclusionary zoning against disfavored socioeconomic groups have been prohibited in some states, zoning is inherently exclusionary. In recent years, a few states have adopted state-wide or regional growth-management programs, which generally have been upheld by the courts. These typically create urban growth boundaries, beyond which most development is precluded. The goal is to establish sharply defined and densely populated towns surrounded by green belts, reconceptualizing American land use rights along the European model. The recent demand for “smart growth” legislation may hasten this trend.

Many landowners have attempted to coordinate the use of their respective parcels through private agreements. These create easements (nonpossessory rights in the land of another), and equitable servitudes (similar promised binding as a matter of fairness). While the distinctions among these devices are somewhat arcane, owners might choose one device over another to ensure either flexibility or rigidity in the enforcement of their agreements over time. The recent Restate (Third) of Property, Servitudes (2000) would collapse these devices into the servitude, which would be enforced by courts in light of reasonableness. For some, this is a welcome change. For others, it represents another reconceptualization of traditional property, which is capable of serving owners with precision if used with care into another domain of public policy, governed by amorphous standards of fairness.

As the legal concept of property becomes increasingly complex and less set apart from other bodies of law, it moves farther from the laypersons’ view of property as the tangible thing in which the owner might vest care and affection. The effects of these developments upon the historic links between property and the creation of wealth and property and the preservation of individual liberty remain to be determined.

See also Patent Law Practice




Bibliography
Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution, 1985.
Jeremy Waldron, The Right to Private Property, 1988.
Ellen Frankel Paul and Howard Dickman, eds., Liberty, Property, and Government: Constitutional Interpretation Before the New Deal, 1989.
Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy, 1990.
Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes, 1991.
Margaret Jane Radin, Reinterpreting Property, 1993.
James W. Ely Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights, 2d ed., 1998.
William B. Stoebuck and Dale A. Whitman, The Law of Property, 3d ed., 2000.

Steven J. Eagle


How to cite this entry:
Steven J. Eagle "Property" The Oxford Companion to American Law. Kermit L. Hall, ed. Oxford University Press 2002. Oxford Reference Online. Oxford University Press Huddersfield University. 22 October 2007 <http://www.oxfordreference.com/views/ENTRY.html?subview=Main...







Selected response from:

inmb
Local time: 13:51
Grading comment
Selected automatically based on peer agreement.
4 KudoZ points were awarded for this answer

Advertisement


Summary of answers provided
3 +3majątek / masa spadkowa
inmb
3 +1własność vs. majątek
skisteeps
3 +1majątek ruchomy i nieruchomy
Stanislaw Czech, MCIL
2 +2majątek i nieruchomości
EnglishDirect
4nieruchomość i tytuł posiadania nieruchomości
TechWrite


Discussion entries: 2





  

Answers


11 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5
nieruchomość i tytuł posiadania nieruchomości


Explanation:
...

TechWrite
Israel
Local time: 14:51
Native speaker of: Native in PolishPolish
PRO pts in category: 20

Peer comments on this answer (and responses from the answerer)
neutral  inmb: w kontekście prawa angielskiego masz wg mnie 100% racji
15 hrs
  -> thnx
Login to enter a peer comment (or grade)

7 mins   confidence: Answerer confidence 2/5Answerer confidence 2/5 peer agreement (net): +2
majątek i nieruchomości


Explanation:
sugestia...

--------------------------------------------------
Note added at 9 mins (2007-10-21 20:16:46 GMT)
--------------------------------------------------

chyba chodzi o te dwie sprawy, tak sądzę, z których od ostatniej płaci się podatek w takich sytuacjach... to jest, przyznaję, strzał...

--------------------------------------------------
Note added at 11 mins (2007-10-21 20:18:55 GMT)
--------------------------------------------------

może tutaj coś znajdziesz:
www.podatki.egospodarka.pl/23540,Podzial-majatku-a-podatek-...
akademia.dom.pl/content/view/859/4434/
prawo-nieruchomosci.krn.pl/Rozwod-i-podzial-majatku-4_2_20.html

--------------------------------------------------
Note added at 12 mins (2007-10-21 20:20:10 GMT)
--------------------------------------------------

www.nieruchomosci.beck.pl/index.php?mod=m_aktualnosci&cid=3...
forum.gazeta.pl/forum/72,2.html?f=656&w=69817622

EnglishDirect
Local time: 13:51
Specializes in field
Native speaker of: Polish
PRO pts in category: 21

Peer comments on this answer (and responses from the answerer)
agree  TechWrite: kurcze, ładniej to okresliłeś... :) Tylko czemu taki niepewny jesteś?
5 mins
  -> dziękuję... nie wiem dlaczego taki niepewny jestem :) pozdrawiam...

neutral  Polangmar: Majątek zawiera w sobie nieruchomości (lingwistycznie i merytorycznie). Dobrze, że chociaż przyznałeś, że to strzał - ale ProZ to nie strzelnica...:D)
1 hr
  -> tylko tyle masz do powiedzenia?

agree  Agnieszka Szewczuk: majątek zawiera w sobie nieruchomosci. przypominam jednak, ze w angielski jezyk prawniczy lubi "pary" typu "null and void". Uwazam, ze sugestia jest dobra.
12 hrs
  -> Dziękuję pięknie!
Login to enter a peer comment (or grade)

23 mins   confidence: Answerer confidence 3/5Answerer confidence 3/5 peer agreement (net): +1
majątek ruchomy i nieruchomy


Explanation:
Nie jestem absolutnie pewien, ale wydaje się to stosunkowo rozsadne. property z pewnościa może byc uzyte jako synonim ruchomości - np. tutaj: http://www.webdictionary.co.uk/definition.php?query=property

A estate byłoby w tym układzie majątkiem nieruchomym (raczej nie ma wątpliwośi, że mozna uzyt tego słowa na okreslenie nieruchomości).

Brzmi to dla mnie sensownie...

Ewentualnie przychodzi mi jeszcze do głowy:
Własność i inne prawa rzeczowe
np. Jaślan podaje jako jedno ze znaczeń "estate" - prawa o charakterze rzeczowym

Pozdrawiam i życzę miłego rozwiązywania łamigłówek



    Reference: http://tinyurl.com/34b9vn
Stanislaw Czech, MCIL
United Kingdom
Local time: 12:51
Specializes in field
Native speaker of: Native in PolishPolish
PRO pts in category: 862
Notes to answerer
Asker: Jaślana odpalołam z płyty, Kozierkiewicza przewertowałam. Podparłam się prozem i wsparłam własną wiedzą. Oparłam się o "define:" w google'u http://tinyurl.com/3yau5x oraz http://tinyurl.com/2rn2z9 i dalej jestem głupia. Ale polegam na wspólnej mądrości narodu :)


Peer comments on this answer (and responses from the answerer)
agree  Polangmar
48 mins
  -> Dzięki :)
Login to enter a peer comment (or grade)

5 hrs   confidence: Answerer confidence 3/5Answerer confidence 3/5 peer agreement (net): +1
własność vs. majątek


Explanation:
Property to dobra ruchome i nieruchome, których się jest właścicielem. Estate to, oprócz w/w dóbr, benefity, które te dobra generują, np. dywidendy, prawa pierwokupu, dochody z tytułu czynszu, dzierżawy itp. Estate to pojęcie szersze, niż tylko prawo własności.

--------------------------------------------------
Note added at 5 hrs (2007-10-22 01:38:52 GMT)
--------------------------------------------------

http://en.wikipedia.org/wiki/Estate
http://en.wikipedia.org/wiki/Property

skisteeps
Canada
Local time: 04:51
Works in field
Native speaker of: Native in PolishPolish
PRO pts in category: 64

Peer comments on this answer (and responses from the answerer)
agree  iseult
23 hrs
  -> Dziękuję!
Login to enter a peer comment (or grade)

2 hrs   confidence: Answerer confidence 3/5Answerer confidence 3/5 peer agreement (net): +3
majątek / masa spadkowa


Explanation:
.

Jakoś nie wydaje mi się, żeby mogło być inaczej.


--------------------------------------------------
Note added at 14 hrs (2007-10-22 10:20:21 GMT)
--------------------------------------------------

Przyszło mi do głowy czy przypadkiem nie chodzi o rozróżnienie polagające na tym, że estate to majątek wniesiony (posiadany) w momencie zawarcia małżeństwa, a property to majątek zgromadzony później? Ale to tylko przypuszczenie oparte bardziej na Twoim tekście niż definicjach.

Gdyby rzecz działa się w Anglii lub Walii, to można się zastanowić nad "nieruchomościową" definicją "estate" (zob. poniżej):

estate n. 1. (in land law) Technically, the duration of tenure in land. In strict legal theory, the Crown has ownership of all land in England and Wales. All others hold an estate (a period of time for which the tenure will last) of the Crown. In practice, the freehold estate fee simple absolute in possession is indistinguishable from absolute ownership. Other freehold estates exist, such as the life interest and the fee tail, but these are far less common and will exist as part of a trust or settlement and be equitable rather than legal. The leasehold estate or term of years absolute is the estate held by a tenant from a landlord. It, like the fee simple absolute in possession, is capable of being a legal estate.

2. (in revenue law) The aggregate of all the property to which a person is beneficially entitled. It covers not only tangible property, but also equitable rights, debts, and any other rights capable of being reduced to a money value (O'Neill v IRC [1988] STC (SCD) 110; Melville v IRC [2001] EWCA Civ 1247, [2001] STC 271). There is no rule that prevents an asset from being in two different individuals' estates at the same time. Excluded property, which includes most reversionary interests and certain foreign matters, is not taken into account for the death charge (see inheritance tax).

How to cite this entry:
"estate n." Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. Huddersfield University. 22 October 2007

a dla porównania

property n. Anything that can be owned. A distinction is made between real property (land and incorporeal hereditaments) and personal property (all other kinds of property) and between tangible property (that which has a physical existence, e.g. chattels and land) and intangible property ( choses in action, including intellectual property, and incorporeal hereditaments). For purposes of the law of theft, property includes all real, personal, and intangible property, although land can only be stolen under certain specified conditions. For purposes of the law of criminal damage, property does not include intangible property.




How to cite this entry:
"property n." Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. Huddersfield University. 22 October 2007 <http://www.oxfordreference.com/views/ENTRY.html?subview=Main...

i jeszcze US (jeśli masz chwilę czasu na czytanie ...)
Property, as conceptualized in American law, consists of rights regarding things that are binding upon others and that are endorsed by the state. The objects of property include tangibles, such as land and automobiles; intangible claims to wealth, such as corporate stock; and inventions and literary works, now termed “intellectual property.” The most important property rights are those of use, dominion, and alienation. Use rights permit the owner to employ the resource for economic benefit or personal satisfaction. Dominion rights permit the owner to exclude others. Alienation rights permit transfer of the owner’s use and dominion rights by sale, gift, or testamentary disposition. This view, that property consists of a bundle of rights with respect to others, differs sharply from the everyday notion that property consists of things that one owns.

In general, American law treats rights in most valuable resources as property. It presumes that property is held by individuals, as opposed to family or communal groups or the state. Its preference for practical finality over theoretical perfection is manifest in the concept of adverse possession, by which a person occupying land without permission for a modest number of years acquires a fresh title that is superior to old claims of ownership. The American legal concept of property has no fixed meaning or clear-cut structure. It has developed from a multitude of European and indigenous sources, the most important being the English common law. As the notions of utility and justice that have shaped it continue to evolve, the concept of property evolves as well.

Pre-Colonial Sources.
The sources of American property rights include the classical Roman law (c. A.D. 1–250) which recognized ownership (proprietas) of tangible things. Roman occupation of Britain (55 B.C.–c. A.D. 410) was terminated by Angles, Saxons, and Jutes, who came from the Danish peninsula and north Germany. Chieftains of these riding bands granted tracts of land to their followers. As the Anglo-Saxon concept of kingship developed, this customary practice was regularized through the issuance of charters granting occupation of land in exchange for payments and services.

Anglo-Saxon rule in turn was overthrown in 1066 by William the Conqueror, whose Norman French invaders had their origins in Norway. While the Normans never adopted Anglo-Saxon landholding practices in a formal sense, these practices formed the basis of immemorial custom that shaped the early common law. William’s grants of land differed from previous practice in that they generally were conditioned upon personal oaths of fealty and promises to supply specified numbers of knights for battles. Over the next two centuries, paid armies replaced knights and the economic value of land was increasingly recognized. Correspondingly, feudal obligations of military service were replaced by money rents, and the Statute Quia Emptores (1290) permitted landholders to sell their estates. Over time, the cost of royal wars led to continued strife with Parliament, but by the Glorious Revolution of 1688 English law had evolved so even the king was subject to the rule of law.

Property in American Colonial Times.
The American concept of property was shaped by economic and political developments during the colonial period (1607–1776). In England, land title ultimately was vested in the crown. Those who held land through royal grants of tenure formed a highly concentrated elite. In America, land was plentiful and colonial proprietors had to lure immigrants with the promise of absolute title. Also, colonists had absorbed the teaching of the English and Scottish Enlightenment that government was a compact among individuals for the preservation of their liberties. The most influential Enlightenment author was John Locke, whose Second Treatise of Government (1688) proclaimed that men had property rights in themselves and in those natural resources fashioned into usable things through their labor.

By and large, the indigenous Indian tribes were hunters and gatherers; they did not build permanent structures or delineate individual landholdings. While such communal use of land was sensible given the lack of towns and intense agricultural development, it was not recognized by Europeans as creating property. Thus, European nations distributed lands without regard for customary American Indian rights (see native Americans and the law: history).

The Development of Property from Independence Through the New Deal.
When the colonies achieved independence, the English common law of property was received as the law of the new states. The ratification of the United States Constitution in 1787 did not substantially affect the common law basis of property, since the Constitution provided the federal government with only limited powers. Furthermore, the framers regarded the protection of property as a great object of the Constitution and a necessary condition for the preservation of liberty.

The powers delegated to Congress enhanced the importance of property by establishing a national common market. Among them were the power to coin money; to regulate interstate, foreign, and American Indian commerce; to establish post offices; to grant patents and copyrights; and to regulate bankruptcy (Article I, Section 8). Similarly, among the few prohibitions imposed upon the states were the coinage of money and the impairment of contracts (Article I, Section 10). The Fifth Amendment to the Constitution) prohibited the taking of private property by the federal government without just compensation and similar provisions were incorporated in all state constitutions. State statutes facilitated the incorporation of businesses and placed on a firmer footing the rights of investors whose tangible property consisted of shares of corporate stock.

During the rapid industrialization that followed the Civil War, states responded to perceived abuses by businesses with legislation regulating railroad and utility rates as well as labor conditions. (In so doing they relied upon the police power, the inherent right of the sovereign to protect the public health, safety, and welfare.) Late in the nineteenth century the Supreme Court held that such regulations must present a reasonable return on investments in regulated property and, more fundamentally, that the right to contract to enter into a lawful occupation or to acquire property was a liberty interest, protected by the due process clause of the Fourteenth Amendment. In cases such as Lochner v. New York (1905), which came to epitomize the Court’s approach, it would ascertain independently whether a regulation was necessitated by the public health, safety, or welfare, or whether it deprived business or employees of their property or contract rights arbitrarily and in violation of their substantive right to due process of law. In the wake of the Great Depression and the New Deal, the Court backed away from this approach. Ever since its decision in United States v. Carolene Products Co. (1938), the Supreme Court has permitted the government wide latitude to impose economic and social regulations, shifting its closer scrutiny to such rights as freedom of speech and freedom from racial discrimination.

A problem inherent in the Court’s post–New Deal jurisprudence is that the legal concept of property encompasses both dominion rights and use rights. The value of the right to exclude others from land, for instance, may be insignificant without the owner’s additional right to use the land. In monetary terms, the value of a thing used in commerce depends upon the anticipated income generated by that use. Therefore, there is an internal inconsistency in the familiar assertion that property (dominion rights) is protected from uncompensated seizure by the Fifth Amendment’s takings clause, while the business activity (use rights) that generates income may be regulated stringently under the police power.

Property in Contemporary America.
A marked attribute of contemporary American property law is its growing complexity. At the beginning of the twentieth century, property was conceptualized as real property (land and buildings), personal property (other tangible things), and intangible rights, such as stock, patents, and copyrights. By the end of the century these concepts had changed significantly.

Over a millennium, real property had acquired a unique legal status and claim on popular affections. For many centuries, real property was the basis of family wealth and power. Given its relative permanence, real property ownership had to be tracked over long periods of time. For these reasons, changes in the few permissible variations from complete ownership of land, such as life estates and leases, came slowly. As a basis of economic self-sufficiency, real property ownership reduced the need to remain in favor with the king and thus facilitated the quest for political rights.

Through the early twentieth century, ownership of land used for commercial purposes was embodied in the simple deed of the equity owner, and the simple mortgage protecting the lender who advanced funds for the land’s purchase. These relationships have been transformed by the growth of modern financial institutions, including pension and mutual funds, and the proliferation of distinctions in tax law. Now hundreds of ownership rights might exist in a shopping center or office complex project, each tailored to the time horizon, aversion to risk, and tax status of a particular type of investigator.

The residential lease, which earlier was conceptualized as the transfer of ownership of a land for a term of months or years, has been reconceptualized by the landlord-tenant revolution of the mid-twentieth century into a contract for the provision of housing services. This change permits courts to read into leases various “implied warranties” by landlords that never were part of traditional property law. In fact, these warranties result from police power regulation rather than contract, since the implied provisions cannot be disclaimed even by tenants’ most explicit agreements. As in feudal times, the rights of residential landlord and tenant are determined by their status rather than by their bargain.

Property rights in residences, farms, and other lands occupied by their owners have been reconceptualized as well. In the United States, ownership of land traditionally has been viewed as carrying with it the right to make economically useful improvements. To be sure, owners could not commit acts of nuisance, which deprived neighbors of the right to reasonable enjoyment of their lands. Beyond this, however, owners could not be required to leave land undeveloped simply to provide open space for the community. In many European nations, on the other hand, use rights in land are limited to existing uses. Subsequent development is predicted upon obtaining permission from local planning authorities.

Comprehensive zoning was approved by the U.S. Supreme Court in Village of Euclid v. Ambler Realty Co. (1926). It was adopted rapidly by almost all American cities. Although predicated on the notion of sound planning, zoning has mostly served to segregate residential from industrial and commercial districts and to protect property values and aesthetics in homogenous suburban communities. While the more blatant forms of exclusionary zoning against disfavored socioeconomic groups have been prohibited in some states, zoning is inherently exclusionary. In recent years, a few states have adopted state-wide or regional growth-management programs, which generally have been upheld by the courts. These typically create urban growth boundaries, beyond which most development is precluded. The goal is to establish sharply defined and densely populated towns surrounded by green belts, reconceptualizing American land use rights along the European model. The recent demand for “smart growth” legislation may hasten this trend.

Many landowners have attempted to coordinate the use of their respective parcels through private agreements. These create easements (nonpossessory rights in the land of another), and equitable servitudes (similar promised binding as a matter of fairness). While the distinctions among these devices are somewhat arcane, owners might choose one device over another to ensure either flexibility or rigidity in the enforcement of their agreements over time. The recent Restate (Third) of Property, Servitudes (2000) would collapse these devices into the servitude, which would be enforced by courts in light of reasonableness. For some, this is a welcome change. For others, it represents another reconceptualization of traditional property, which is capable of serving owners with precision if used with care into another domain of public policy, governed by amorphous standards of fairness.

As the legal concept of property becomes increasingly complex and less set apart from other bodies of law, it moves farther from the laypersons’ view of property as the tangible thing in which the owner might vest care and affection. The effects of these developments upon the historic links between property and the creation of wealth and property and the preservation of individual liberty remain to be determined.

See also Patent Law Practice




Bibliography
Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution, 1985.
Jeremy Waldron, The Right to Private Property, 1988.
Ellen Frankel Paul and Howard Dickman, eds., Liberty, Property, and Government: Constitutional Interpretation Before the New Deal, 1989.
Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy, 1990.
Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes, 1991.
Margaret Jane Radin, Reinterpreting Property, 1993.
James W. Ely Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights, 2d ed., 1998.
William B. Stoebuck and Dale A. Whitman, The Law of Property, 3d ed., 2000.

Steven J. Eagle


How to cite this entry:
Steven J. Eagle "Property" The Oxford Companion to American Law. Kermit L. Hall, ed. Oxford University Press 2002. Oxford Reference Online. Oxford University Press Huddersfield University. 22 October 2007 <http://www.oxfordreference.com/views/ENTRY.html?subview=Main...









inmb
Local time: 13:51
Specializes in field
Native speaker of: Polish
PRO pts in category: 824
Grading comment
Selected automatically based on peer agreement.

Peer comments on this answer (and responses from the answerer)
agree  Marek Daroszewski (MrMarDar): Bartek - w definicji cytowanego aktu property obejmuje nieruchomości i ruchomości (co łatwo sprawdzisz); stąd poszedłbym w kierunku majątku współmałżonka i masy spadkowej po nim - ale nie zaszkodzi spytać na forum mono ludzi z USA co to znaczy na 100%
12 hrs
  -> dzięki; chociaż pozostaje przy pewności "3"

agree  Roman Kozierkiewicz: estate tax - to w USA podatek spadkowy - więc propozycja zmierza w dobrym kierunku
12 hrs
  -> dziękuję, ale dalej mam średnią pewność co do swojej odpowiedzi, gdyż np w kontekście prawa angielskiego odpowiedź zamieszczona przez TechWrite jest całkowicie słuszna

agree  Iza Szczypka: Też w tym kierunku, chociaz samo sformułowanie jest ciut kulawe. Ale lepszego nie umiem wymyślić ... Dywagacje nt. UK sa o tyle bezprzedmiotowe, że u Bartka widać wyraźnie New Jersey. Przedmiot opodatk. US "property tax" i "estate tax" jest j/w
13 hrs
  -> dzięki; wrzuciłem kontekst brytyjski też, bo takie rozróżnienie może się kiedyś w kudosach pojawić i ewentualne wykorzystanie "amerykańskiej" interpretacji będzie mylne
Login to enter a peer comment (or grade)




Return to KudoZ list


Changes made by editors
Oct 21, 2007 - Changes made by bartek:
FieldScience » Social Sciences


KudoZ™ translation help
The KudoZ network provides a framework for translators and others to assist each other with translations or explanations of terms and short phrases.



See also:



Term search
  • All of ProZ.com
  • Term search
  • Jobs
  • Forums
  • Multiple search