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1
Dixon, Martin. "TO SELL OR NOT TO SELL: THAT IS THE QUESTION THE IRONY OF THE TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996." Cambridge Law Journal 70, no. 3 (November 2011): 579–606. http://dx.doi.org/10.1017/s0008197311000869.
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The 1925 property statutes, particularly the Settled Land Act 1925 and the original sections 30 to 36 Law of Property Act 1925, were premised on a fairly narrow view of the prevalence and purpose of co-owned land. Successive interests either fell within the awkward provisions of the Settled Land Act 1925 or were organised under a trust for sale within the ambit of the Law of Property Act 1925. Concurrent co-ownership could exist, also under a trust for sale, but the Law of Property Act 1925 was premised on the assumption that such trusts would be expressly created, with readily identifiable beneficiaries, holding in defined shares, often for investment purposes and primarily in respect of larger land holdings. That is why the original scheme was a trust for sale, why sections 34 and 36 Law of Property Act 1925 appear not to contemplate the implied trust of land at all,1 why interests behind trusts originally were not regarded as proprietary,2 why statutory overreaching is so powerful and why sections 2 and 27 Law of Property Act 1925 stipulate a requirement of at least two trustees or a trust corporation before overreaching can occur.3 Concurrent co-ownership was, essentially, a financial not a residential matter, and the ready conversion of land to liquid asset was regular and expected. The position today is virtually the reverse, with concurrent co-ownership being the normal way by which the family home4 is owned and with the expectation that it will be retained as that home. Realisation of its capital value is intended to be postponed until the family's needs have changed.
2
Roche, Juanita. "HISTORIOGRAPHY AND THE LAW OF PROPERTY ACT 1925: THE RETURN OF FRANKENSTEIN." Cambridge Law Journal 77, no. 3 (September 24, 2018): 600–629. http://dx.doi.org/10.1017/s0008197318000697.
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AbstractThis article considers how problems in legal historiography can lead to real legal problems, through a case-study of two recent judgments which appear to revolutionise the law on overreaching under section 2(1)(ii) of the Law of Property Act 1925. Their reasoning ignored plain wording in the Act, in a way foreshadowed by problems in the historiography of the 1925 property legislation; and the legislative history shows that the version of overreaching they promote, one with a clear political meaning, was rejected by Parliament. One of these decisions has now been reversed on appeal, but on reasoning so untenable as to invite further challenge; and now two Court of Appeal judgments on overreaching contradict, without even mentioning, two prior Court of Appeal decisions and a decision of the House of Lords. The court should reaffirm the law on overreaching, and academics should develop a new historiography.
3
Bently, Lionel, and Paul Coughlan. "Informal dealings with land after section 2." Legal Studies 10, no. 3 (December 1990): 325–43. http://dx.doi.org/10.1111/j.1748-121x.1990.tb00040.x.
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The Law of Property (Miscellaneous Provisions) Act 1989 has radically altered the law relating to the formalities required in respect of a contract for the sale of land. It has repealed s 40 of the Law of Property Act 1925 and in its place s 2( 1) of the 1989 Act provides:‘A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.’
4
Oldham, Mika. "BALANCING COMMERCIAL AND FAMILY INTERESTS UNDER TLATA 1996, s. 15." Cambridge Law Journal 60, no. 1 (March 2001): 1–58. http://dx.doi.org/10.1017/s0008197301740615.
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THE The Mortgage Corporation v. Shaire [2000] 1 F.L.R. 973, is the first case to apply section 15 of the Trusts of Land and Appointment of Trustees Act 1996. Neuberger J. in the Chancery Division confirmed, contrary to dicta in TSB plc v. Marshall [1998] 2 F.L.R. 769, that on an application for an order for sale of mortgaged property section 15 gives the court greater flexibility than it had under its predecessor, the Law of Property Act 1925, s. 30.
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Atkins, Scott. "Solomon v McCarthy: unwritten trusts of land." Trusts & Trustees 26, no. 4 (April 12, 2020): 372–76. http://dx.doi.org/10.1093/tandt/ttaa013.
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Abstract Unwritten trusts of land have always been troublesome, given that they prima facie infringe the writing requirement set out in section 53 (1) (b) of the Law of Property Act 1925. Ways around the problem exist, so that an unwritten trust may be recognised, but those ways usually rely on an implied trust (which does not require writing under section 53 (2) of the Law of Property Act 1925) or the court to disapply the writing requirement by invoking the maxim that equity will not permit a statute to be used as an instrument of fraud. The latter principle has been recognised as applying where a settlor claims that he himself is also the beneficiary. Recently, the county court in Bristol considered whether that maxim might be used to support an unwritten trust of land made by a settlor in favour of a third-party beneficiary and, for the first time in a reported case, came to the conclusion that it could not.
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Thompson, M. P. "Overreaching after Boland." Legal Studies 6, no. 2 (July 1986): 140–53. http://dx.doi.org/10.1111/j.1748-121x.1986.tb00540.x.
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In William & Glyn's Bank v Boland Mr Boland, the sole resgistered proprietor of a house, mortgaged it to a bank. On his inability to meet the repayments, the bank sought possession as a prelude to the exercise of its power of sale. The action of possession failed because Mrs Boland successfully claimed an overriding interest in the property. This claim was founded on her having substantially contributed to the purchase of the house, thereby obtaining an interest in it. This interest was enforceable against the bank because she was in actual occupation of the land at the time it acquired its interest with the result that, because of section 70(1)(g) of the Land Registration Act 1925, she had an overriding interest in the land.
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Hazlett, Thomas W. "The 1927 Radio Act as Pre-emption of Common Law Property Rights." Review of Industrial Organization 56, no. 1 (June 10, 2019): 17–35. http://dx.doi.org/10.1007/s11151-019-09707-4.
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Haley, Michael. "The statutory regulation of business tenancies: private property, public interest and political compromise." Legal Studies 19, no. 2 (June 1999): 207–28. http://dx.doi.org/10.1111/j.1748-121x.1999.tb00092.x.
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The need for the statutory regulation of business tenancies was officially recognised towards the end of the nineteenth century. The mischief complained of was that some landlords held their tenants to ransom by demanding an inflated rent as a condition of a lease renewal. This was particularly harsh for the tenant who had built up business goodwill and carried out improvements to the premises. Despite the organisation of commercial tenants and the growth of political lobbying, it was not until Landlord and Tenant Act 1927 that controls emerged which provided compensation for loss of goodwill and improvements. The inadequacy of these provisions, however, entailed that tenant discontent and lobbying persisted until the enactment of the Landlord and Tenant Act 1954. This paper charts the social and political change which brought about this significant retreat from market forces and the gradual recognition that security of tenure, as opposed to financial safeguards, was the necessary response. The controls established in 1954 have, remarkably, survived almost intact and, subject to some fine tuning, will continue to do so. This paper addresses the issue why the commercial code has, in marked distinction to its residential and agricultural counterparts, remained immune to shifts in political policy during a sustained period of deregulation in landlord and tenant law.
9
Ernst, Daniel R. "Ernst Freund, Felix Frankfurter, and the American Rechtsstaat: A Transatlantic Shipwreck, 1894–1932." Studies in American Political Development 23, no. 2 (September 25, 2009): 171–88. http://dx.doi.org/10.1017/s0898588x09990058.
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From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund developed an Americanized version of the Rechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter, a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund, Administrative Powers over Persons and Property (1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today the Rechtsstaat is largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.
10
Kubiak-Wójcicka, Katarzyna, and Michał Marszelewski. "Definitions and evolutions of the terms “flowing and stagnant waters” in the context of the proprietorship of the lakes in Poland." Limnological Review 12, no. 4 (March 1, 2012): 191–97. http://dx.doi.org/10.2478/v10194-012-0059-z.
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AbstractThis article discusses the problem of property and use of waters and the legal aspects of the definitions of lakes in particular. To achieve this, the authors reviewed the acts on Water Law from 1922 up to the present day. They proved consistency in the application of the water law. From the hydrological point of view the lake belongs to stagnant waters. The definition included in the Water Law act is contrary to this depiction of the lake. The act reads that the lake may be classified as stagnant or flowing water depending upon the existence of the natural, permanent or seasonal, inflow (or outflow) of the lake. This obviously constitutes a discrepancy between the scientific and legal definition of the lake.
11
Stępień, Piotr. "Spółdzielcze własnościowe prawo do lokalu a prawo odrębnej własności lokalu. Przeszłość, teraźniejszość oraz perspektywa na kolejne 100 lat." Studia Iuridica 77 (March 20, 2019): 174–83. http://dx.doi.org/10.5604/01.3001.0013.1873.
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The article is a review of housing cooperative law in the last 100 years. The aim is to approximate one of the limited real rights contained in article 244 of the Civil Code, a cooperative ownership right to a flat. Indication of the most important changes in the cooperative ownership right to housing, made since the independence of Poland. Starting from the first Polish legal act on housing cooperatives, the act on cooperatives from 1920, passing to the Act of 17 February 1961 on cooperatives and their unions, then the Act of 16 September 1982 – Cooperative Law, as well as to the Act of 15 December 2000 on Housing cooperatives. The current provisions of the cooperative ownership right to the premises were presented, which were compared to a fully-fledged right which is the property right. The basic differences between these rights are approximated. The analysis of cooperative law is conducted from the point of view of the need for the existence of a cooperative ownership right to a flat.
12
Thornton, Rosy. "Enforceability of leasehold covenants: more questions than answers." Legal Studies 11, no. 1 (March 1991): 47–70. http://dx.doi.org/10.1111/j.1748-121x.1991.tb00622.x.
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The enforceability of the convenants in a lease after an assignment, whether by the landlord or the tenant or both, is a matter of considerable practical importance. In the case of long leases, assignments of the leasehold estate and of the reversion are a common occurrence; both will often change hands many times before the end of the term, creating a welter of potential parties to any action on the covenants. In addition, there may be sureties who have undertaken to guarantee performance of the tenant's covenants. The basic principles governing the parties' rights and liabilities in this field under the present law are well known, centring upon privity of contract, privity of estate and upon statutory rules found in ss 141 and 142 of the Law of Property Act 1925. The area is one of vital commercial significance to landlords, and which potentially affects the residential security and amenity enjoyed by tenants (in the case, for example, of landlords' covenants to renew or to repair). It is also a field in which many of the issues and concepts have been the subject of judicial and academic consideration for more than a century, yet a surprising number of uncertainties remain. The law consists of a complex set of rules, which together form something resembling an intellectual jigsaw puzzle, and one from which several pieces are still missing. The aim of the first part of this article is to highlight some of these gaps.
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Švecová, Adriana, and Miriam Laclavíková. "Das Familienfideikommiss in der ungarischen Rechtsordnung und seine Auflösung in der ersten Tschechoslowakischen Republik zwischen zwei Weltkriegen." Czasopismo Prawno-Historyczne 69, no. 1 (October 4, 2018): 131–46. http://dx.doi.org/10.14746/cph.2017.1.6.
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Czechoslovak legislation efficiently abolished the old privileges of the nobility in the interwar period. The abolishment pertained not only to the personal privileges but also to the marital property. It was a consequence of the abolition of the nobility as well as of the noble ranks and decorations in accordance with the 1924 act. The fee tail was among the repealed private law institutions which were connected with the privileged status of the nobility. It is common knowledge that the fee tail was one of the special forms of securing the property of the nobility which was accomplished through complexinheritance law. Its abolition was supposed to be connected with the political and social program of the Czechoslovak government. The aim of the changes was to implement a new and fairer division of land ownership. The following study aims its attention in the direction of the genesis of the fee tail on the lands of the former Kingdom of Hungary and its evolution in the Czechoslovak Republic. The present deliberations are based on the rich legal literature on the subject. Furthermore, the aim was to present the legal institution which occupied a central position in the system of property law, inheritance law and family law.
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Starzec, Bartłomiej. "PROBLEM REWINDYKACJI W II RZECZYPOSPOLITEJ DÓBR OBJĘTYCH KONFISKATĄ PO POWSTANIU STYCZNIOWYM PRZEZ RZĄDY CARSKIE." Zeszyty Prawnicze 9, no. 2 (June 25, 2017): 83. http://dx.doi.org/10.21697/zp.2009.9.2.04.
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The Problem of Recovery Property under Seizure by the Tsarist Government after the January Uprising in 1863 YearSummaryArticle describe a problem of recovery property under seizure by the tsarist government after the January Uprising in 1863 year. Confiscation of property was the penalty applicable to the participants and supporters of the uprising. The Russian government has applied it to every Polish independence uprising. Particularly confiscation of property was the negative consequences for the Polish gentry. Confiscation of property meant for the Polish gentry the social degradation. After regaining independence, Polish politicians have taken a series of attempts aimed at recovering stolen property. In 4-th may 1920 year the Polish parliament adopted a resolution in which the confiscation were considered acts of violence and lawlessness. However, still lacked a comprehensive act governing return of the property. In the case omission of the legislature, heirs of the insurgents began to assert their rights in courts. In the late twenties, the Supreme Court repeatedly upheld the claims for reimbursement of property. Enactment in 1932 year the law about recovery of property ended processes. Article describe problem of legal continuity between the first and second Polish Republic too.
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Sobol, Dorota. "The property market in Poland as an area of investment activity of foreigners." Oeconomia Copernicana 2, no. 3 (September 30, 2011): 87–102. http://dx.doi.org/10.12775/oec.2011.014.
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The aim of this paper is to identify and evaluate the activities of foreign entities in the Polish real estate market. The first part discusses the procedure and the legal requirements placed on foreigners, In turn, the second part presented the scale and structure of civil law real estate transactions involving foreigners. The author used the data from the annual reports on the realization of the act of 24 March 1920 on real estate acquisition by foreigners prepared by the Ministry of Interior and Administration. The subject of the analysis were the such indices as: the number of permits and total area of the acquired property (including: property type, investor's country of origin and their legal status) in the years 2004-2009. There is also shown the share of foreigners in the sale of real estate transactions in Poland in the years 2006-2008.
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Stępkowski, Aleksander. "ROZWÓJ INSTYTUCJI TRUSTU W PRAWIE SZKOCKIM." Zeszyty Prawnicze 4, no. 1 (May 30, 2017): 91. http://dx.doi.org/10.21697/zp.2004.4.1.06.
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Development of the Law of Trusts in ScotlandSummaryThe earliest indisputable traces of trusts law in Scotland may be found in reports from the first half of the XVH‘h century. There are several examples of even earlier dispositions to which a fiduciary character might be ascribed, coming from the XV,h and XVTh centuries. Nevertheless, we are not able to state categorically that these represent examples of trusts, since there is nothing about priority of beneficiary's rights in respect to trust property, before trustee’s personal creditors, whereas it seems to be today differentiam specificam discerning trust from contractual relations.According to the aforementioned case law, the main subject of trust dispositions was land (immoveable property, called in Scotland “heritable”). The main issue giving rise to legal controversies was the question of the manner in which the existence of a trust in land was allowed to be proved. The rules of evidence adopted by the Court of Session differed substantially from those of Scottish land law which were usually applied when proving titles in land. According to Scottish institutional writers, it seems to be most probable that the reason for such a favourable standing of land being subject to trust was that the Court of Session proceeded on the ground of its’ nobile officium, extraordinary equitable jurisdiction performed by this court, most probably since the very early stages of it’s activity, on the basis of a statutory provision from 1540.During the XVIIth century the first statutory regulations concerning trusts appeared, but more substantial progress in this respect took place in the XIXth century. Most often, it was statutory implementation of earlier common law principles and, in relation to trustees’ competences, of standards relating to the professional drafting of trust deeds. XIXth century legislation was consolidated in 1921 as the Trusts (Scotland) Act 1921 which was subsequently amended in 1961 and, together with the British Trustee Investments Act 1961 (which is still in force in Scotland although will be repealed soon, as it was already done in England in 2001), is partial codification of Scottish trusts law. Nevertheless it should be emphasised that Scottish trust law is still principally based on case law.As regards the influence of English Equity on the development of the Scottish law of trusts, it seems to be negligible in the early stage of the latter’s development. A considerable influence of the Chancery Court’s cases upon Scots law in respect of trusts only began in the fourth decade of the XIXth century, with a book by Charles Forsyth ( The Principles and Practice o f the Law o f Trusts and Trustees in Scotland (1844)), who had used intensively English case law as an illustration, he claimed, of Scottish law principles. Since this publication, nevertheless, English case law, as exposed in English textbooks, though not necessarily in the Chancery Reports, became an important source of inspiration for Scottish lawyers writing books on this subject and, subsequently, it was also used in the Court of Session as an important source of authority. Notwithstanding the above, Scottish judges were always more critical and generally have applied English principles in a less willing manner than has been seen from Scottish advocates and solicitors. Generally speaking, the English influence, although considerable, has not changed the very construction of Scottish trusts law. A beneficiary’s claim in respect of trust property is still considered to be a personal right, as opposed to a sui generis right in real estate.Contemporary Scottish jurisprudence considers trust property as a trustee’s special patrimony, distinct from his general patrimony and, as such, not accessible by his personal creditors. In this way, the Scots have worked out a civil law approach to trust, which was long considered to be hardly possible. This is also a reason why Scottish trusts law, as well as the whole of Scottish law, attracts so much attention from lawyers from Continental Europe.
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Kwiecień, Sebastian. "POLSKIE PRAWO PRZEMYSŁOWE 1927-1939." Zeszyty Prawnicze 11, no. 2 (December 21, 2016): 207. http://dx.doi.org/10.21697/zp.2011.11.2.11.
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POLISH INDUSTRIAL LAW 1927-1939Summary Mutual relations between the state and industry have changed substantially in the early twentieth century. Formed the major national ompanies which have obtained legal protection acquired economic position. A manifestation of protective measures was the introduction of the concession to operate certain industrial activities. Duty concession staggered principle of freedom of industry and introduced the principle of regulation (licensing). For the period above accounted for the first codification of Polish coherent industrial such as regulation of the Polish President on 7 June 1927, industrial law, with effect from 16 December 1927, modeled primarily on the Austrian and German law on industrial property. The Act contains no provisions industry standard for the period of capitalism the first quarter of the twentieth century, and is due to the contemporary system of economic relations, which gave her more than once on the archaic nature of some regulation. In addition to the undoubted success of the enactment of uniform laws for the whole country was to move the industry with its provisions explicitly the principle of art. March 101 of the Constitution places the freedom to choose classes and earn money. A reflection of this was the provision of Article. 3 industrial law, under which the industry was to conduct free and allowed anyone, unless the provisions of industrial law did not provide that the exception or limitation. Statutory definition of industry modeled on the achievements of the jurisprudence of the German industrial law, defined it as any employment or business carried out by itself, a commercial and professional use, no matter whether it was the activities of producing, processing, trade, or services. The Act divided the industry into two basic categories: a permanent base– industry-free, fully licensed and crafts as well as no permanent residence (circular). Sometimes a third category of industries considered to run theindustry at the fair. Launch of free industry, with permanent residence, which was not subject to duty concession notice required an industrial power of the first instance. Industrial authority without undue delay seemed receipts stating the order number, under which he was entered in the register of industrial powers. The registration obligation imposed on both individuals and legal persons. Licensed industry was industry, with permanent residence, whose launch was dependent on receipt of the concession. Industrial Law provided a long list of licensed industries, while accepting the principle that only those types of industry should be forced to obtain licenses, that are thus due to the important public interest and national security had to be made subject to strict conditions. Craft was the peculiar kind of industry, with permanent residence, which could be performed only way to craft. Industry without a permanent seat was called industry is defined as a circular gainful employment, self-made, professionally and personally without a permanent seat in the industrial field, for example, selling goods in other places other than goods intended for sale. The person who wanted to lead the industry circular was required to obtain a license, which has provided industrial power of the first instance in the form of an administrative decision. It was not possible to start and perform circular industry before obtaining a license. One of the major forms of trade in the interwar period was the sale takes place at the fair. The activities fair was regulated in the law industry as a special type of industry and subject to strict legal restrictions. The basic condition of business was to obtain a fair municipality’s powers to conduct fair markets (the property or place) and keeping it in the days and hours established in the regulations. In terms of industrial law in the new political and economic conditions have occurred in Poland after 1944. It is very interesting that its provisions were not considered to be contrary to the principles of contemporary legal and political system, becoming the instrument of delivery volume of private economic activity for the so-called national economy. Therefore, the provisions of the Regulation in force until 1972.
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Vecchiato, Virginia. "Definition as a Genre in Three Legal Systems: A Comparative Analysis." Comparative Legilinguistics 44, no. 1 (December 1, 2020): 65–92. http://dx.doi.org/10.2478/cl-2020-0012.
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Abstract This paper aims at comparing the definition of ‘trademark’ in three different legal systems – EU law, international law and US common law – in order to identify the discoursal, generic and textual characteristics of definition as a genre. The selected corpus of analysis is made up of three definitions from EU Regulation 2017/1001, WTO Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS) and US Lanham Act (sec.45) and of several US cases from 1926 to 2019. The theoretical framework within which the analysis is carried out is the seminal work on definition as carried out by Richard Robinson (1954) and Harris and Hutton (2007). The approach is mainly linguistic, though a historical excursus on the concept of definition is provided as a necessary introductory premise. The findings demonstrate that EU legal texts are characterised by a hybrid style (Robertson 2010) which results from the combination of common law and civil law textual features. The analysis of the definitional sections here displayed supports this point and confirms that EU term formation and definition are text-driven (Šarčević 2016). EU legal texts in their English version originate from the dynamic combination of two aspects: one connected to EU legal English – which is not common law English – and one connected to matters of terminology, syntax and general structure which has a French origin.
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Machovenko, Jevgenij, and Dovile Valanciene. "CONSTITUTIONAL FOUNDATIONS FOR THE COORDINATION OF RECEIPTED AND NATIONAL LITHUANIAN LAW IN 1918–1920." Constitutional and legal academic studies, no. 2 (July 16, 2021): 69–77. http://dx.doi.org/10.24144/2663-5399.2020.2.08.
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The research object of this study is the provisions of the Provisional Constitutions of 1918, 1919 and 1920 concerning the establishment of the Lithuanian legal system. The aim of the study was to determine what was the basis for the reception of foreign law and the particularism of the law, what law was recepted and what was the relationship between it and the newly created national law. The main methods used are systematic, teleological, historical, linguistic, and comparative. This article presents an original vision of recepted law and a critical assessment of the interwar Lithuanian governmental decision to completely eliminate recepted law. In the authors' opinion, law reception and particularism enshrined in the Provisional Constitutions met the expectations of the citizens, and the government’s ambition to completely eliminate recepted law in all areas of people’s activities in the intensive development of the national law was in line with the strategic interests of the state and society. Particularism was a natural expression of pluralism inherent in the Western legal tradition and had a great potential for the development of Lithuanian law, which was not exploited due to the negative appreciation of particularism and the attempt to eliminate it completely.
Acts issued by the Russian authorities in 1914-1915 and by the German authorities in 1915-1918 restricted the rights of Lithuanian residents, severely restricted monetary and property relations, made it difficult to rebuild the country’s economy, providing for repressive or restrictive measures against the citizens of hostile states. The restored state of Lithuania endeavoured to establish peaceful relations with all states, including those with whom Russia and Germany were at war. Cancelling the law imposed by the Russian and German authorities during the war was a reasonable and useful decision of the Lithuanian State authorities.
The interpretation of the constitutional provision «[laws] which existed before the war» as «which existed before August 1, 1914», common in the historical legal literature of Lithuania, is incorrect. The question what laws were recepted has to be addressed not by the date of the adoption o a certain act, but by its content – insofar it is linked or unrelated to the First World War. All acts by which the Russian Empire intervened or were preparing to intervene in this war shall be considered to be excluded from the legal system of the restored State of Lithuania in the sense of the constitutional norm «[laws] which existed before the war» and the general spirit of this Constitution.
The system of constitutional control entrenched in the Provisional Constitutions, where a court or an executive authority verified the compliance of a recepted law with the Constitution before applying it is subject to criticism from the standpoint of contemporary legal science, but under the conditions of Lithuania of 1918-1920, it was flexible, fast, allowing citizens to raise the issue of the constitutionality of the law and present their arguments.
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Pieraccini, Margherita. "A Comparative Legal and Historical Study of the Commons in Italy and England and Wales." AGRICOLTURA ISTITUZIONI MERCATI, no. 1 (April 2009): 85–118. http://dx.doi.org/10.3280/aim2008-001007.
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- Margherita Pieraccini Historically, common land occupied a central role in the agrarian and cultural economies of Europe. Although the governance of the commons shaped by different regimes of property rights was heterogeneous, it is possible to uncover a common ground in the widespread centrality assigned to customs. Today, common land is not an anachronistic relict but remains an interesting area of study given its revitalisation in national policies and laws. This article presents a study of comparative law between English and Welsh common land and Italian commons, focussing on the similar historical transformation they experienced. In fact, the predominance of agrarian practices and local customs of the past has been erased by the nationalisation of the commons in both countries. In Italy, this nationalisation should be attributed to the levelling philosophy of the 1766/1927 law, in England and Wales to the Commons Registration Act 1965 and Commons Act 2006. If contemporary political and legislative discourses portray the commons as examples of environmental sustainability and communitarian governance, in reality this position is more a product of a political adhesion to the recent discursive orthodoxy centred on the community than a genuine legislative attempt to confer responsibility and autonomy to the principal stakeholders of the commons. From a theoretical point of view the article follows the institutionalist approach, nonetheless criticising its holistic understanding of the concepts of community and locality. Key words: common land, governance, customs, sustainability, England and Wales, Italy.
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Katz, Claudio J. "Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era." Law and History Review 31, no. 2 (May 2013): 275–323. http://dx.doi.org/10.1017/s0738248013000047.
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The Supreme Court's decision inLochner v. New York(1905), invalidating an act limiting working hours for bakers as a violation of contractual freedom, has come to symbolize an era in constitutional law. The period covers the years from the end of the Gilded Age through the Progressive Era. Its chief characteristic, according to its critics, is the judiciary's hostility to progressive labor legislation. Statutes intended to protect vulnerable classes from the ravages of industrialization were routinely defeated in the courts. Progressives pioneered an interpretation in whichLochnerbecame a leading “anticanonical” case, wrongly deploying the doctrine of substantive due process to shield inherited distributions of wealth and power. The time is long past when scholars characterized the era as a product of judges' reactionary commitments to laissez-faire or, worse, to Social Darwinism, following Justice Holmes's quip, dissenting inLochner, that “the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Contemporary scholars have reconstructed the period's jurisprudence, finding in it a principled commitment to a conception of justice grounded in the Founding. The most widely accepted explanation, developed by Gillman's influential study, is that substantive due process embodied a principle of neutrality requiring courts to distinguish the authentic public aims of legislation from illegitimate attempts to advantage some classes at others' expense. An alternative explanation is that judges, drawing on the theory of natural rights, developed the doctrine of substantive due process to limit government's discretion to encumber prepolitical rights to private property and liberty of contract.
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Kosiński, Eryk. "Prawny status zawodu lekarza. Wybrane zagadnienia." Studia Prawa Publicznego, no. 3(15) (December 4, 2019): 9–27. http://dx.doi.org/10.14746/spp.2016.3.15.1.
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The article deals with a very crucial question of the legal status of physicians in Poland. The question asked is whether a physician who works as a sole practitioner may be recognized as a person performing a liberal profession, a public trust profession (a category specifi c only as far as Polish domestic law concerned), or a regulated profession (according to Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifi cations). Consequently, first the concepts of a liberal, regulated and public trust professions are analysed. Another important question to be answered is if physicians practicing as sole traders are undertakings in the meaning of the EU law and if they are what their status is. The vastest exclusion in terms of the subject and object of the legislation was provided by the Regulation on Industrial Law issued by Poland’s President on 7 June 1927 which excluded the activity conducted by physicians. Under Article 3 of the President’s Regulation the Commercial Code 27 June 1934, all liberal professions were also excluded from activities considered to be a form of entrepreneurship. This attitude changed in postwar Poland and the Act of 23 December 1988 on Economic Activity provided for no exclusion for any liberal profession from being regarded as economic activity. The Act of 19 November 1999 on Economic Activity excluded from its scope only entities that provided legal services (barristers and solicitors) and those rendering services in the area of industrial property. Today, under Polish law physicians are considered to be an undertaking in two situations: when they conduct their activities in the form of so-called ‘private practice’ (one-person undertaking), or when they conduct their practice within so-called ‘collective practice’ (partnership). They are not regarded as undertakings when they are employed by a medical institution or another medical entity on the basis of an employment contract. In such a case they fall under the provisions of the Act of 15 April 2011 on Medical Activities, but still keep the status of liberal profession.
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Sparkes, Peter. "The 1925 Property Legislation: Curtaining off the Antecedents." Statute Law Review 9, no. 3 (1988): 146–59. http://dx.doi.org/10.1093/slr/9.3.146.
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Fox, D. M. "ADVERSE POSSESSION UNDER THE LAND REGISTRATION ACT 1925." Cambridge Law Journal 67, no. 3 (November 2008): 474–76. http://dx.doi.org/10.1017/s0008197308000962.
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Harpum, Charles. "Overreaching, Trustees' Powers and the Reform of the 1925 Legislation." Cambridge Law Journal 49, no. 2 (July 1990): 277–333. http://dx.doi.org/10.1017/s0008197300117040.
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Overreaching, as the doctrine is now understood, is the process whereby a purchaser of property takes it free from any interests or powers, which attach instead to the proceeds of sale. Dispositions of trust property and conveyances by mortgagees, by personal representatives and under an order of the court may all overreach equitable interests. A lease granted by a mortgagor may overreach the rights of the mortgagee. This article is concerned primarily with dispositions of trust property and in particular those by trustees for sale of land. It seeks to demonstrate that the concept of overreaching is wider than is supposed. Two principal arguments are advanced. The first is that overreaching is a necessary concomitant of a power of disposition. A transaction made by a person within the dispositive powers conferred upon him will overreach equitable interests in that property, but ultra vires dispositions will not, and the transferee with notice will take the property subject to those interests. The second argument is that the draftsman of the 1925 property legislation fully appreciated the true nature of overreaching, and attempted to employ it as an essential part of his scheme for the facilitation of conveyancing. His intentions have not been appreciated in practice, and his carefully constructed scheme has been misapplied. The article considers critically recent proposals for reform from the Law Commission, and in particular the emphasis which those proposals give to the protection of the rights of persons in actual occupation. It will be suggested that reform might be more effectively achieved by employing the essentials of the scheme constructed by the draftsman of the 1925 legislation.
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Tan, Y. L. "Must retiring trustees be replaced?" Legal Studies 9, no. 3 (November 1989): 323–30. http://dx.doi.org/10.1111/j.1748-121x.1989.tb00654.x.
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A trustee who has accepted trust obligations can retire from his trusteeship in four ways: (i) by virtue of the trust instrument which expressly or impliedly authorises him to do so; (ii) under s 36 of the Trustee Act 1925; (iii) under s 39 of the Trustee Act 1925 and (iv) under s 41 of the Trustee Act 1925, ie by permission of the court.In regard to retirement under s 36 which provides for non-judicial appointment of new trustees, it is widely accepted that a trustee may so retire only by the valid appointment of another trustee in his place; retirement without replacement is only possible under s 39 and that would require consent to the retirement. An examination of the relevant case law reveals that it assumes rather than establishes the widely accepted view; but more importantly the effect of legislative changes culminating in the present s 36 removes the most probable reason for the view so that the formulation for it has, so to speak, disappeared.
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Singleton, Rebecca. "Architecture and intellectual property." Architectural Research Quarterly 15, no. 3 (September 2011): 294–96. http://dx.doi.org/10.1017/s1359135511000893.
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For architects, intellectual property (IP) law is vital. Without it plans, building designs and models would have no value as others could copy them without payment. But what are an architect's rights and how are those rights retained in order to avoid commercial exploitation?The legislation for this area of law comes from the Copyright, Designs and Patents Act 1988 (CDPA), the Registered Designs Act 1949, the Trade Marks Act 1994 and the Patents Act 1977. IP itself is divided into those rights that are registrable at the Intellectual Property Office (IPO) and those that are not. Rights that must be registered before the work is protected include trademarks, patents and registered designs; IP rights that cannot be registered include copyright and unregistered design rights.
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Parkinson, Patrick. "Constitutional Law and the Limits of Discretion in Family Property Law." Federal Law Review 44, no. 1 (March 2016): 49–75. http://dx.doi.org/10.1177/0067205x1604400103.
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The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown. Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making. The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.
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Weber, Marc. "New Swiss Law on Cultural Property." International Journal of Cultural Property 13, no. 1 (February 2006): 99–113. http://dx.doi.org/10.1017/s0940739106060048.
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On June 1, 2005, the Swiss Federal Act on the International Transfer of Cultural Property (Cultural Property Transfer Act [CPTA]) and the regulations thereof became effective. The CPTA implements the minimal standards of the UNESCO Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. The CPTA fills a gap, because Switzerland is not a member state of the Convention of June 24, 1995, on Stolen or Illegally Exported Cultural Objects (Unidroit Convention 1995). In addition, as a nonmember state of the European Union (EU) and the European Economic Community (EEC), the Council Directive 93/7/EEC of March 15, 1993, on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State is not applicable. The CPTA enforces foreign export bans in Switzerland. However, claims in Switzerland for return of foreign, illegally exported cultural property are only successful when there is an agreement on the import and return of cultural property between Switzerland and the claiming foreign state. Like Switzerland, the claiming state must be a member state of the UNESCO Convention of 1970.
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Guthrie, Tom, and Hilary Hiram. "Property and Cohabitation: Understanding the Family Law (Scotland) Act 2006." Edinburgh Law Review 11, no. 2 (May 2007): 208–29. http://dx.doi.org/10.3366/elr.2007.11.2.208.
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Tee, Louise. "Gently Reforming Land Registration: The Latest Law Commission Report and Draft Bill." Cambridge Law Journal 55, no. 2 (July 1996): 241–48. http://dx.doi.org/10.1017/s0008197300098159.
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Land registration has long proved a source of concern to the Law Commission. Its Third Report in 1987 recommended significant changes to the substantive law; its Fourth Report subsequently incorporated these changes into a comprehensive draft Land Registration Bill which was intended to replace the Land Registration Act 1925 with a modern, simpler statute.
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Ho, H. L. "Some Reflections on “Property” and “Title” in the Sale of Goods Act." Cambridge Law Journal 56, no. 3 (November 1997): 571–98. http://dx.doi.org/10.1017/s0008197300098585.
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The Sale of Goods Act 1979 (“the Act”) uses two terms, “property” and “title”, which one would normally associate with ownership. Of “title”, there is no definition in the Act; of “property”, there is one. But the definition, as we shall see, does not carry us very far. There has been much debate on the meaning of the two terms. The approach advocated by Battersby and Preston in a deservedly well-known article appears to have gained considerable acceptance.5 This paper hopes to present, as a theoretical possibility, an alternative interpretation of the uses and meanings of those concepts and of their relationship. It would be useful to begin with a brief description of “ownership” since “property” and “title” are associated with it.
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Oshio, P. Ehi. "The Land Use Act and the Institution of Family Property in Nigeria." Journal of African Law 34, no. 2 (1990): 79–92. http://dx.doi.org/10.1017/s0021855300008238.
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The Land Use Act, 1978 is, indeed, a “giant-killer”. In the recent case of Savannah Bank of Nigeria Limited and Another v. Ammel Ajilo and Another a learned Justice of the Supreme Court of Nigeria seized the opportunity to indict a doyen of the Nigerian Bar for a seeming misapprehension of the revolutionary effect of the Act on the land tenurial system of the country. But we hasten to point out that the Act is not the problem child only of the Bar, for the Bench is not free from the same misapprehension for which this learned gentleman of the Bar was indicted. Indeed, there is mounting evidence from the conflicting opinions of our courts on the Act that the latter is the “Achilles' heel” also of the Bench. One glaring instance: while the Supreme Court in recognition of group holdings under customary law conceded communal title to a right of occupancy under the Act to a community in the case of Chief S.U. Ojeme and Others v. His Highness Momodu II and Others the Court of Appeal expressed the contrary view in the subsequent case of L.S.D.P.C. and Others v.
34
Ifrani, Ifrani. "The Politics of Criminal Law in Trademarks and Future Concept of Omnibus Law for IPR." Lambung Mangkurat Law Journal 5, no. 2 (September 27, 2020): 149–62. http://dx.doi.org/10.32801/lamlaj.v5i2.152.
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From the Global Intellectual Property Center (GIPC) survey, Indonesia still considered weak in protecting intellectual property. Then the political direction of law began to look at the concept of the omnibus law to promote the ease of doing business (EoDB). Therefore, the purpose of this study is to analyze first, the legal protection issues of famous brand holders in Act No. 20/2016 through political instruments and criminal law policies. Secondly, the concept of the omnibus law as ius constituendum of the Act Related to Indonesian Intellectual Property in the political perspective of criminal law. The normative method was chosen because of the object of the study on the principles of law, theories, and doctrines of jurisprudence. The results of this study show that although Indonesia's IPR index score increased in 2019, it's global ranking declined. This means that despite increases in scores, Indonesia's IPR enforcement tends to be stagnant when compared to other countries. The IPR-related Act can be combined into an omnibus law. The aim is to simplify the laws of Patents, Trademarks, Copyrights, Industrial Designs, Layout Designs of Integrated Circuits, and Communal Investment Credit which greatly affect the economy and investment in Indonesia.
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McChesney, Fred S. "Deception, Trademark Infringement, and the Lanham Act: A Property-Rights Reconciliation." Virginia Law Review 78, no. 1 (February 1992): 49. http://dx.doi.org/10.2307/1073302.
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Cooke, Elizabeth. "Adverse possession – problems of title in registered land." Legal Studies 14, no. 1 (March 1994): 1–14. http://dx.doi.org/10.1111/j.1748-121x.1994.tb00562.x.
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It has been said that ‘the law of limitation is a subject which peculiarly involves an enquiry into first principles.’ That is particularly true in registered land. Section 75 of the Land Registration Act 1925 grafted into registered land a concept inimical to it, namely the possibility of defeat by adverse possession of a flawless documentary title. That endeavour has on the whole been successful; but there remain problems, concerning such fundamental concepts as trusts, the nature of legal estates after 1925, and ‘title absolute.’ This article seeks to explore those problems; at the same time, the opportunity will be taken to look again at the decision in Spectrum Investment Co v Holmes and to suggest that it need no longer be regarded as a major source of difficulty.
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Parkinson, Patrick. "Quantifying the Homemaker Contribution in Family Property Law." Federal Law Review 31, no. 1 (March 2003): 1–55. http://dx.doi.org/10.22145/flr.31.1.1.
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A central question in family property law in Australia is how to place a value on the homemaker contribution in comparison with other kinds of contribution. The problem is especially difficult where the property largely consists of assets owned before marriage, acquired by inheritance, or received after separation. This article explores the relevance of the homemaker contribution to property division both in marriages and de facto relationships, challenging the popular assumption that living together per se justifies significant wealth transfers. It is argued that parenthood provides the most important justification for property alteration, and that withdrawal from workforce participation due to the care of children or other family members is the primary concern in evaluating the homemaker contribution. The article then goes on to explore what the homemaker contribution meant when the Family Law Act 1975 (Cth) (‘the Family Law Act’) was enacted, and how that conceptual coherence has become lost over time. There are now two different approaches which have emerged to the quantification of the homemaker contribution in the context of pre-marital property, inheritances, damages awards and property acquired after separation. These approaches are irreconcilable. The approach which is now finding favour in the Full Court of the Family Court is one which makes it impossible for the Court to explain how it has reached its decision on the quantification of the parties' proportionate shares. Furthermore, it is founded on an interpretation of the homemaker contribution that Parliament never intended and has not since authorised. This raises important questions about the legitimacy of the Court's approach to property division under s 79 of the Family Law Act. The article concludes by offering a new interpretation of the role which the homemaker contribution should play in the division of property on relationship breakdown which is consistent with the overall framework of s 79. It involves two distinct considerations of the homemaker contribution. The first is to examine how homemaker contributions should be rewarded. The second is to consider how they should be compensated.
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Nwabuzor, Emmanuel O. "Real Property Security Interests in Nigeria: Constraints of the Land Use Act." Journal of African Law 38, no. 1 (1994): 1–18. http://dx.doi.org/10.1017/s0021855300011426.
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The modern idea of secured transactions is based on the notion of economic efficiency, which implies the minimization of transaction costs while ensuring optimal returns. The efficiency theory posits that unclear definitions and unprotected allocation of property rights inhibit the production of wealth, because they raise the transaction costs of land and impede exchange. The more precisely property rights are stated and assigned, the lower the cost of establishing ownership, and the extent of one's interest in any given piece of land.1 Proceeding from the efficiency theory, contemporary commercial practice is not willing to accommodate the ancient, unnecessarily complicated system of conveyancing, which makes the taking of security in real property expensive. Thus, an efficient regime of secured transactions should be simple, fast, cheap and predictable.
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Huo, Zhengxin. "The Statutory Reform of Chinese Private International Law in Property Rights: A Silent Revolution." Chinese Journal of Global Governance 1, no. 2 (February 12, 2016): 174–91. http://dx.doi.org/10.1163/23525207-12340010.
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This article reviews the statutory reform of Chinese private international law from the perspective of property rights which concludes that notwithstanding the significant improvement, the new Private International Law Act of China are fraught with various defects. In the field of property, Article 37 and Article 38 are particularly problematic as the introduction of unlimited party autonomy into the choice-of-law rules for movables and res in transitu is theoretically indefensible and practically troublesome. Moreover, there are a number of defects or problems with Article 39 and Article 40 of the Act respectively. What’s more, the Act neglects some other important types of property that call for special treatment, such as cultural property, and assignment of debt. In the end, the article puts forward the corresponding suggestions for improvement.
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Peart, Nicola. "New Zealand's Succession Law: Subverting Reasonable Expectations." Common Law World Review 37, no. 4 (December 2008): 356–79. http://dx.doi.org/10.1350/clwr.2008.37.4.0178.
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Succession law in New Zealand has been widely criticized for many years as being incoherent and unprincipled both in regard to its approach to property entitlements for spouses and unmarried partners and in its liberal approach to support claims under the Family Protection Act 1955. Although testamentary freedom was said to apply in New Zealand, the reality was rather different. The Wills Act 1837 was also seen as unnecessarily defeating testamentary intentions. Based on research indicating strong support for testamentary freedom and widespread objections to testators' lack of autonomy, the New Zealand Law Commission recommended radically reforming the law to give better effect to testamentary wishes subject to limitations that were coherent, principled and in line with rights and duties during a testator's lifetime. Parliament largely ignored those recommendations. Between 2001 and 2007, it reformed several statutes affecting succession law, but it did so in piecemeal fashion. Succession law was not viewed holistically and fundamental concerns about ill-defined and unprincipled limits on testamentary freedom were not addressed. The reforms were driven by conflicting policies. While the new Wills Act 2007 is intended to give better effect to testamentary wishes, that aim is frustrated by the enhanced property entitlements of surviving spouses and unmarried partners provided by the Property (Relationships) Amendment Act 2001 and Parliament's failure to curb the liberal approach to support claims under the Family Protection Act. As a result, there is now a greater likelihood than before that testamentary wishes will be undermined and reasonable expectations of testators and their beneficiaries subverted.
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Maharaj, Sabita. ""Dropping" The Migratory Bird Treaty Act." Texas A&M Journal of Property Law 1, no. 1 (October 2013): 127–48. http://dx.doi.org/10.37419/jpl.v1.i1.8.
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Federal law essentially handcuffs residents from protecting their health and their children’s health and severely restricts what they can do to protect their property from MBTA-protected birds. The usefulness of these laws is no longer justifiable. While it is necessary for human enjoyment and the balance of the ecosystem to protect animals, protection should not come at the expense of human health and property use and enjoyment.
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Weisberger, June Miller. "Selected Conflict of Laws Issues in Wisconsin's New Marital (Community) Property Act." American Journal of Comparative Law 35, no. 2 (1987): 295. http://dx.doi.org/10.2307/840391.
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Flemsæter, Frode, and Gunhild Setten. "Holding Property in Trust: Kinship, Law, and Property Enactment on Norwegian Smallholdings." Environment and Planning A: Economy and Space 41, no. 9 (January 1, 2009): 2267–84. http://dx.doi.org/10.1068/a41135.
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In this paper we discuss relations between kinship, law, and property enactment. A recent revision of The Norwegian Act Relating to Concession in the Acquisition of Real Property is designed to influence the relation between subjects (property owners) and objects (properties) through ceasing the obligation of residency and cultivation on certain properties, which in turn is intended to increase sales prices of the respective properties. Drawing upon empirical research conducted in four Norwegian local authority districts, we argue that responsibility for past, present, and future generations of family or kin is highly important in property enactment. Although relations between subjects and objects are powerful and inform policy actions, relations between social subjects might be just as influential and powerful. When enacting properties, people may live in more complicated worlds than is often assumed. We assert that further research in legal geography and the emerging field of ‘geographies of relatedness’ might profit from seeing kinship and property as coconstituted.
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Wood, Roderick J., and Michael I. Wylie. "Non-Consensual Security Interests in Personal Property." Alberta Law Review 30, no. 4 (April 1, 1992): 1055. http://dx.doi.org/10.29173/alr1220.
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The authors trace the chaotic growth of non-consensual security interests in personal property. Rules governing non-consensual security interests are analyzed and shown to have developed in an inconsistent and unpredictable manner. The authors set out a framework to resolve the priority contests between security interests governed by the Personal Property Security Act and non-consensual security interests. Ultimately, the authors call for reform to this area of the law, similar to that which occurred to chattel security law with the advent of the Personal Property Security Act, so as to create some degree of predictability in the area.
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Clagett, Brice M. "Title III of the Helms-Burton Act Is Consistent with International Law." American Journal of International Law 90, no. 3 (July 1996): 434–40. http://dx.doi.org/10.2307/2204067.
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The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, otherwise known as the Helms-Burton Act, became law on March 12, 1996. Title III of the legislation creates a federal cause of action, on behalf of U.S. citizens whose property was confiscated without compensation by Cuba, against those who “traffic” in that property. Several governments—notably Canada, Mexico and those of the European Union, whose corporate citizens are the principal “traffickers”—have denounced the legislation as an exercise of extraterritorial jurisdiction that violates customary international law. These governments apparently see nothing wrong with permitting—even encouraging—their nationals to use and profit from property that rightfully belongs to others. The United States not only commands the moral high ground on this issue; it also has the better of the legal argument.
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Wong, Simone. "Constructive trusts over the family home: lessons to be learned from other commonwealth jurisdictions?" Legal Studies 18, no. 3 (September 1998): 369–90. http://dx.doi.org/10.1111/j.1748-121x.1998.tb00023.x.
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Ownership of the family home is usually not disputed until either the relationship between the spouses or cohabitants breakdown or there is a competing claim over the property by a third party. In such circumstances, determination of ownership rights becomes imperative. The Matrimonial Causes Act 1973 gives the courts adjustive powers to deal with disputes between spouses on the breakdown of the marriage. Notwithstanding this, there may be circumstances where it will be necessary or desirable to determine property rights between spouses. Furthermore, the adjustive powers of the courts are not applicable to cohabitants. Thus, in the absence of legal co-ownership in the family home, cohabitants and spouses who cannot rely on the 1973 Act will have to establish an equitable interest in the property. The analyses relied on are primarily based on property law and trusts principles and, more particularly, imputed trusts and proprietary estoppel. Under trusts principles, imputed trusts are usually taken to refer to resulting and constructive trusts.
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Duff, David G. "Canadian Bijuralism and the Concept of an Acquisition of Property in the Federal Income Tax Act." McGill Law Journal 54, no. 3 (January 20, 2010): 423–62. http://dx.doi.org/10.7202/038891ar.
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Abstract The acquisition of property plays an important role in the federal Income Tax Act (ITA), determining eligibility for a number of tax benefits, including entitlement to capital cost allowance, investment tax credits, and the deductibility of interest expenses incurred in respect of eligible property. In spite of its importance, the concept of an acquisition of property is not defined in the ITA, and it has been subject to divergent interpretations in the common law and the civil law. The author traces the sources of law informing the meaning of an acquisition of property in the common law and the civil law, and concludes that certain transactions may be subject to different tax consequences depending on whether they occurred in a common law province or in Quebec. The author demonstrates that the primary reference for determining whether a taxpayer acquired property—the twofold test in M.N.R. v. Wardean Drilling Ltd.—is premised on common law concepts and is incompatible with the goals of Canadian bijuralism expressed in the Federal Law—Civil Law Harmonization Act, No. 1 and section 8.1 of the federal Interpretation Act. In response to this contradiction, the author proposes a number of statutory amendments to ensure the uniform and predictable application of the ITA across Canada.
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Dwyer, Lynn E., Dennis D. Murphy, and Paul R. Ehrlich. "Property Rights Case Law and the Challenge to the Endangered Species Act." Conservation Biology 9, no. 4 (August 1995): 725–41. http://dx.doi.org/10.1046/j.1523-1739.1995.09040725.x.
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Harpum, Charles. "Side Letters, Collateral Contracts and the Law of Property (Miscellaneous Provisions) Act 1989." Cambridge Law Journal 50, no. 3 (November 1991): 399–401. http://dx.doi.org/10.1017/s0008197300016081.
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Hopkins, Nicholas, and Emma Laurie. "Housing or property? the dynamics of housing policy and property principles in the right to buy." Legal Studies 26, no. 1 (March 2006): 65–87. http://dx.doi.org/10.1111/j.1748-121x.2006.00002.x.
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This paper examines the interplay and tension between housing law and policy and property law, in the specific context of the right to buy (RTB). It focuses on funding arrangements between the RTB tenant and another party. It first examines how courts determine the parties’ respective entitlements in the home, highlighting the difficulty of categorising, under traditional property law principles, a contribution in the form of the statutory discount conferred on the RTB tenant. Secondly, it considers possible exploitation of the RTB scheme, both at the macro level of exploitation of the policy underpinning the legislation and, at the micro level, of exploitation of the tenant. The measures contained in the Housing Act 2004 intended to curb exploitation of the RTB are analysed to determine what can be considered to be legitimate and illegitimate uses of the scheme. It is argued that, despite the government's implicit approval, certain funding arrangements by non-resident relatives fail to give effect to the spirit of the scheme.