WEEK 1 (pg 1-23 Gardner)

When A sells house that B lives in to C, B has 2 possibilities of remedies. Depends

on what type of rights
1.
-

RIGHTS IN PERSONAM (RP)

Contract law (privity)
Compensation in form of money against A (for not being able to live thr)
Only includes rights of B against A, B cannot have a right against C if deals with
A
License (live as lodger)
Will not bind C no matter what
= personal rights (unless stated otherwise)
If fail to meet req of RR, fall back on RP
no rights at all (B against C)

2. RIGHTS IN REM (RR) (having potential to affect C, D, E called Disponees

(previously known as purchaser)= whoever A, C, rents to other than B- even
including mortgaging to banks- bank will be Disponee and affected by yr right)
- Remedy can be In Specie (insist on living there) and in monetary form (as in 1)
but this time against C instead of A.
- Basic underlying principle is nemo dat quod non habet, He cannot give away
what he doesnt have.
o Actual law departs from this bcz some conditions still need to be fulfilled- so
ownership alone doesnt guarantee a RR. Why?
o Goes against Republican idea of Liberty/ V unfair to C bcz this way, B can
exert arbitrary dominance over C- can pretend he actually does have a right
over the house, who knows? If you use the pure nemo dat idea, you wont
need proof (eg. Registration)
o BUT these conditions ^ transaction cost for C to acquire house. That is why
conditions need to be easily discoverable AND any diversion from nemo
dat needs extra careful design- bcz appeal of nemo still remains strong.
- Certain conditions have to be met: stated in Land Registration Act 2002
o Ie. Registered at Governments Land Registry
- Numerus Clausus principle= Law only recognizes finite kinds of RR (unlike
RP- anything can b contracted)
o Needs to match lim. Number of defined templates to be RR
Ownership, Leases (rent), Mortgages, Easements (right of way
etc), Restrictive Covenants (ie. prevent you from building something
which wld restrict my view), Rights under Trusts (entitling
beneficiaries to benefit land nominally held by trustees), Licenses
coupled with an Interest (allowing someone to enter the land of
another so as to gain some asset that he owns or is located there)
o Over the years, some have been lost, some new ones created but still V.
Little.
o Ensures RR only operates when does more good than harm. How to
calculate?

Depends on case by case basis- what B and C take into priority,

economic factors, what they do with the landneed to prioritize
competing interests
Maybe there shld only be one- prohibiting all rights in rem other than
unrestricted ownership? then C wont have to match with set up templates,
reducing his transaction costs (a harm) BUT this wld b overlooking all other
counter arguments- you cannot then keep your right in specie which might
be of importance to you (if this land connects to your house etc)

o
RR have at least 2 + values- allow you to liberty to generate wealth and to sell
your property and keep it In Specie.
= Real/ proprietary rights or interest relating to.. (unless stated otherwise)
In this book, includes both (B against C) rights if certain conditions are met and
rights without further ado even though sometimes rights if certain conditions
are met is paired with RP, the boundary btwn the two is more clear than btwn
RR.
If Right is potentially effective against later Disponee= right takes precedence,
x nec meaning it affects the interest of later Disponee (bcz might have no
concrete effect if two people get right to cross land, and the land has many
routes)

Properly speaking, 2 categories of RR

I)

II)

RR proper
a. Common Law Rights
b. Able to bind Disponees AND 3rd Parties- so if arsonists burn yr house, u can
also sue them
Persistent Rights (rights against rights)
a. Only for equitable rights (Equity is supplement of common law in old days
& > common law)
b. Able to bind ONLY Disponees to the property in Q- so if held under a trust,
if arsonists burn the house, you can only take action against Disponee to
take action against arsonists FOR U
c. NO need match with Numerus Clausus