Keith Mack
The concept of private property rights has been a key concern for centuries, with the common law long regarding an individual's property rights as fundamental. In the context of common law, private property is defined as assets acquired by one member of a married couple, which belong solely to that person unless put in both names. Common law property rules can apply to tangible assets such as real estate, as well as intangible assets like trademarks. In the case of a common-law relationship, the division of property can be complex, with the non-owner needing to provide evidence of their contribution. Various laws and agreements, such as prenuptial or postnuptial agreements, can determine the division of assets in a divorce. Additionally, the state's power to expropriate private property, known as eminent domain, is permitted for public purposes with just compensation to the owner.
| Characteristics | Values |
|---|---|
| Common law property | A system that most states use to determine ownership of property acquired during marriage |
| In contrast to community property law, common law property acquired during a marriage belongs solely to the person who acquired it unless the property is in the names of both spouses | |
| Common law property rules can apply to tangible assets such as cars, real estate, and fine art, as well as intangible assets such as patents and trademarks | |
| Common law property is important in wealth management and estate management following a divorce or death of a spouse | |
| Division of property in common-law relationships | The rules vary from province to province, but generally depend on the length of the relationship and whether there are children involved |
| If there are no children, couples are required to have lived together for at least three years to be deemed to be in a common-law relationship | |
| If there are children, this time may be reduced to one year | |
| The responsibility falls on the non-owner of the property to provide evidence of their contribution | |
| Separation from a common-law partner | A separation agreement can be made as long as both parties agree and have made full financial disclosure and had independent lawyers acting for them |
| A cohabitation agreement can be drawn up by a family lawyer outlining how property should be divided if the relationship breaks down | |
| Eminent domain | The state has the power to expropriate private property if it is for a public purpose and just compensation is paid to the individual |
| Some jurisdictions require that an offer to purchase the property is made before resorting to eminent domain |
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What You'll Learn
Common law property rights in a relationship
Common-law property rights refer to the system that most states use to determine the ownership of property acquired during a marriage. In contrast to community property law, common law property law states that property acquired by one member of a married couple belongs solely to that person unless the property is in both spouses' names. Common-law property rules can apply to tangible assets like cars, real estate, and artwork, as well as intangible assets such as patents and trademarks.
In Canada, each province and territory has its own laws regarding common-law relationships. Unlike married couples, common-law partners in most Canadian provinces and territories do not have an automatic right to an equal division of property upon separation. Each partner typically retains what they own. However, in certain provinces like British Columbia, common-law partners have the same property rights as married couples after cohabiting for a specified period.
In Ontario, to be considered a common-law relationship, couples without children must live together for at least three years. This period may be reduced to one year if there are children involved, although each case is unique. To claim an interest in their partner's property, the non-owner must provide evidence of their contribution, whether monetary or otherwise.
To avoid potential disputes, common-law partners can proactively seek legal advice and draft a cohabitation agreement outlining how property should be divided in the event of a separation. Alternatively, if a common-law relationship is already ending, a separation agreement can be created, provided both parties agree and make full financial disclosure. These agreements save time and money by avoiding court proceedings and are legally enforceable if needed.
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Roman law and private property
Roman law has had a significant influence on the legal protection of property in Western Europe, and its concepts of private property continue to be relevant in civil law and international law.
The Romans distinguished between common property, which was owned by everyone and could never be privatised, and private property, which could be claimed by individuals through occupation or possession. Common property included water, oceans, rivers, air, and the seashore, while private property included land, wild animals, fish, birds, and items found on the seashore like seashells.
In early Roman law, two years of continuous possession established the title for land, and one year for movable property. Possession had to be initiated in good faith, and the item could not have been stolen or acquired through violence. Ownerless items that could be privately owned, like wild animals or islands arising in the sea, became the property of the first person to take possession of them. This was known as "occupatio". Additionally, the concept of "accessio" stated that if an accessory belonging to one person was joined to a principal belonging to another, ownership of the whole went to the latter.
The formal transfer of property, or "mancipatio", was a ceremonial process requiring the presence of the transferor and transferee, five witnesses (adult male Roman citizens), a pair of scales, a man to hold them, and an ingot of copper or bronze. The transferee would grasp the object and declare their ownership under Roman law, symbolically buying it with the piece of copper and scales. They would then strike the scales with the ingot and hand it to the transferor as payment. Another method of conveyance was "in jure cessio", which took the form of a lawsuit. The transferee would claim ownership before a magistrate, and the transferor, as the defendant, would admit the claim, after which the magistrate would adjudge the item to the transferee.
Roman law also regulated the equality of legal subjects and their wills, and it allowed legal subjects to dispose of their property. The Roman Republic's three branches, the Assemblies, the Senate, and the Consuls, each had distinct roles in law-making and administration. The Assemblies passed laws and made declarations of war, the Senate controlled the treasury, and the Consuls held the highest juridical power. Jurists advised magistrates, helped draft edicts, and gave legal opinions to private parties.
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Common law and community property
Common law property systems, which most US states use, consider property acquired by one member of a married couple to be owned solely by that person unless the property is put in both spouses' names. This system is important in wealth management, estate management, and divorce. It also applies to intangible assets like brand names, patents, trademarks, and leases.
In contrast, community property systems treat assets acquired during a marriage as belonging to both partners. In these systems, each spouse is considered to have an automatic 50% interest in all community property, regardless of who acquired it. Nine US states follow this system: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Three other states—Alaska, South Dakota, and Tennessee—are "opt-in" community property states.
In the context of a common-law relationship, property division can be complex. The non-owner of the property may need to provide evidence of their contribution, and the laws vary from province to province. Cohabitation agreements can be drawn up by a lawyer to outline how property should be divided in the event of a breakup. Alternatively, a separation agreement can be made during the separation process, as long as both parties agree and have independent lawyers.
The distinction between common law and community property laws is crucial in divorce cases and ongoing wealth management, especially for high-net-worth individuals. It can impact how assets are divided and passed on to the next generation.
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Claiming property seized by the state
In the United States, civil forfeiture is a process that allows the government to take ownership of property believed to be connected to criminal activity. The property owner does not have to be charged with a crime, although they usually are. Through civil forfeiture, a court transfers ownership of property to the federal, state, or local government. Criminal forfeiture, on the other hand, is brought as part of a criminal prosecution of a defendant. It is important to note that civil forfeiture is an action against the property itself, meaning the government sues the item, not the person.
If your property has been seized, you will receive a Notice of Intent to Seek Forfeiture, which informs you that the agency has requested that your property be forfeited, resulting in the loss of your rights to it. The notice must be sent to you and any other interest holders within 45 days of the seizure. It will contain relevant information about what the government intends to do with your property.
If you are not the criminal defendant in the criminal case involving the seized property, you can file a petition with the court, requesting a determination of who has the right to the property. This petition must be filed within 30 days of the notice being published and should explain the nature and extent of your right, title, or interest in the property, along with supporting facts. If you win your case, the court may order the other side to pay your court costs and attorney fees.
It is worth noting that your right to seized property cannot be forfeited if the forfeiture is not proportional to the use of the property in committing the offense when compared to the value of the property. For instance, if the property was not essential to committing the crime, the forfeiture would be considered disproportionate.
In the case of seized cash, court-ordered third-party payments, or settlement payments, you may need to fill out a form electronically to request a return of funds.
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Common law property rights in divorce
Common law property rights are distinct from community property law, and they are important in divorce cases and wealth management. Common law property rules apply to tangible assets such as real estate, cars, and fine art, as well as intangible assets such as patents and trademarks.
In common law property states, property acquired by one spouse during the marriage is considered their sole property unless the title or deed carries both spouses' names. In contrast, community property states treat assets acquired during a marriage as jointly owned by both partners. In these states, marital property is owned equally by both spouses, and in the event of a divorce, all community property is typically divided evenly.
The laws governing the division of property in a divorce depend on the couple's permanent legal residence and whether it is a common law or community property state. If you are going through a divorce or separation, it is essential to consult a lawyer to understand your rights and options. Separation Agreements can be made between the parties, outlining how the property is to be divided, and these can be enforced by the court.
Additionally, in the context of common law property rights, it is worth noting that if one spouse passes away, their separate property is distributed according to their will or probate in the absence of a will. However, if the property is owned as "tenancy in common," the property can be willed to someone other than the surviving spouse.
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Frequently asked questions
Common law property is a system that most states use to determine the ownership of property, particularly in cases of divorce. Under a common-law property system, assets acquired by one member of a married couple are deemed to belong solely to that person unless they were put in the names of both.
Common law property contrasts with a community property system, which treats assets acquired during a marriage as belonging to both partners. For example, if one partner purchases a boat and puts only their name on the title, then that vehicle belongs exclusively to that person. If this partner lived in a state that recognized community property, then the boat would automatically become the property of both partners in the marriage.
Common law property rules can apply to tangible assets such as cars, real estate, and fine art, as well as intangible assets such as patents and trademarks. If you feel you have made valuable contributions, monetary or otherwise, there are two claims you might be able to bring to court: unjust enrichment and constructive trust. Whether you are about to move into a property owned by your partner or are already in this situation, you can be proactive and feasibly avoid the need for court. Cohabitation Agreements can be drawn up by a family lawyer, outlining how property should be divided if the relationship breaks down.
