Property Barristers

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Property Barristers

Property

From Wikipedia, the free encyclopediaJump to navigationJump to searchThis article is about abstract and legal rights of property. For other uses, see Property (disambiguation).

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Property law
Part of the common law series
Types
Real propertyPersonal propertyCommunity property
Acquisition
GiftAdverse possessionDeed
ConquestDiscoveryAccessionLost, mislaid, and abandoned propertyTreasure troveBailmentLicenseAlienation
Estates in land
Allodial titleFee simpleFee tail
Life estateDefeasible estateFuture interest remainderConcurrent estateLeasehold estateCondominiumsReal estate
Conveyancing
Bona fide purchaserTorrens title
Strata titleDeeds registrationEstoppel by deedQuitclaim deed
MortgageEquitable conversionAction to quiet titleEscheat
Future use control
Restraint on alienationRule against perpetuitiesRule in Shelley’s CaseDoctrine of worthier title
Nonpossessory interest
LienEasementProfitUsufructCovenantEquitable servitude
Related topics
FixturesWastePartitionPracticing without a license
Property rightsMineral rightsWater rights prior appropriationriparianLateral and subjacent supportAssignmentNemo datQuicquid plantaturConflict of property lawsBlackacreSecurity deposit
Other common law areas
Contract lawTort lawWillstrusts and estatesCriminal lawEvidenceHigher category: Law and Common law
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Property in the abstract is what belongs to or with something, whether as an attribute or as a component of said thing. In the context of this article, it is one or more components (rather than attributes), whether physical or incorporeal, of a person’s estate; or so belonging to, as in being owned by, a person or jointly a group of people or a legal entity like a corporation or even a society. Depending on the nature of the property, an owner of property has the right to consume, alter, share, redefinerentmortgagepawnsellexchangetransfergive away or destroy it, or to exclude others from doing these things,[1][2][3] as well as to perhaps abandon it; whereas regardless of the nature of the property, the owner thereof has the right to properly use it (as a durablemean or factor, or whatever), or at the very least exclusively keep it.

In economics and political economy, there are three broad forms of property: private propertypublic property, and collective property (also called cooperative property).[4] Property that jointly belongs to more than one party may be possessed or controlled thereby in very similar or very distinct ways, whether simply or complexly, whether equally or unequally. However, there is an expectation that each party’s will (rather discretion) with regard to the property be clearly defined and unconditional,[citation needed] so as to distinguish ownership and easement from rent. The parties might expect their wills to be unanimous, or alternately every given one of them, when no opportunity for or possibility of dispute with any other of them exists, may expect his, her, its or their own will to be sufficient and absolute. The Restatement (First) of Property defines property as anything, tangible or intangible whereby a legal relationship between persons and the state enforces a possessory interest or legal title in that thing. This mediating relationship between individual, property and state is called a property regime.[5]

In sociology and anthropology, property is often defined as a relationship between two or more individuals and an object, in which at least one of these individuals holds a bundle of rights over the object. The distinction between “collective property” and “private property” is regarded as a confusion since different individuals often hold differing rights over a single object.[6][7]

Important widely recognized types of property include real property (the combination of land and any improvements to or on the land), personal property (physical possessions belonging to a person), private property (property owned by legal persons, business entities or individual natural persons), public property (state owned or publicly owned and available possessions) and intellectual property (exclusive rights over artistic creations, inventions, etc.), although the last is not always as widely recognized or enforced.[8] An article of property may have physical and incorporeal parts. A title, or a right of ownership, establishes the relation between the property and other persons, assuring the owner the right to dispose of the property as the owner sees fit.[citation needed]

Contents

Overview[edit]

Often property is defined by the code of the local sovereignty, and protected wholly or more usually partially by such entity, the owner being responsible for any remainder of protection. The standards of proof concerning proofs of ownerships are also addressed by the code of the local sovereignty, and such entity plays a role accordingly, typically somewhat managerial. Some philosophers[who?] assert that property rights arise from social convention, while others find justifications for them in morality or in natural law.

Various scholarly disciplines (such as laweconomicsanthropology or sociology) may treat the concept more systematically, but definitions vary, most particularly when involving contractsPositive law defines such rights, and the judiciary can adjudicate and enforce property rights.

According to Adam Smith, the expectation of profit from “improving one’s stock of capital” rests on private property rights.[9] Capitalism has as a central assumption that property rights encourage their holders to develop the property, generate wealth, and efficiently allocate resources based on the operation of markets. From this has evolved the modern conception of property as a right enforced by positive law, in the expectation that this will produce more wealth and better standards of living. However, Smith also expressed a very critical view on the effects of property laws on inequality:”Wherever there is great property, there is great inequality … Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.”[10] (Adam SmithWealth of Nations)

In his text The Common LawOliver Wendell Holmes describes property as having two fundamental aspects. The first, possession, can be defined as control over a resource based on the practical inability of another to contradict the ends of the possessor. The second, title, is the expectation that others will recognize rights to control resource, even when it is not in possession. He elaborates the differences between these two concepts, and proposes a history of how they came to be attached to persons, as opposed to families or to entities such as the church.

  • Classical liberalism subscribes to the labor theory of property. They hold that individuals each own their own life, it follows that one must own the products of that life, and that those products can be traded in free exchange with others.

“Every man has a property in his own person. This nobody has a right to, but himself.” (John LockeSecond Treatise on Civil Government)”The reason why men enter into society is the preservation of their property.” (John LockeSecond Treatise on Civil Government)”Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” (Frédéric BastiatThe Law)

  • Conservatism subscribes to the concept that freedom and property are closely linked. That the more widespread the possession of private property, the more stable and productive is a state or nation. Economic leveling of property, conservatives maintain, especially of the forced kind, is not economic progress.

“Separate property from private possession, and Leviathan becomes master of all… Upon the foundation of private property, great civilizations are built… The conservative acknowledges that the possession of property fixes certain duties upon the possessor; he accepts those moral and legal obligations cheerfully.” (Russell KirkThe Politics of Prudence)

  • Socialism‘s fundamental principles center on a critique of this concept, stating (among other things) that the cost of defending property exceeds the returns from private property ownership, and that, even when property rights encourage their holders to develop their property or generate wealth, they do so only for their own benefit, which may not coincide with benefit to other people or to society at large.
  • Libertarian socialism generally accepts property rights, but with a short abandonment period. In other words, a person must make (more-or-less) continuous use of the item or else lose ownership rights. This is usually referred to as “possession property” or “usufruct“. Thus, in this usufruct system, absentee ownership is illegitimate and workers own the machines or other equipment that they work with.
  • Communism argues that only common ownership of the means of production will assure the minimization of unequal or unjust outcomes and the maximization of benefits, and that therefore humans should abolish private ownership of capital (as opposed to property).

Both communism and some kinds of socialism have also upheld the notion that private ownership of capital is inherently illegitimate. This argument centers mainly on the idea that private ownership of capital always benefits one class over another, giving rise to domination through the use of this privately owned capital. Communists do not oppose personal property that is “hard-won, self-acquired, self-earned” (as The Communist Manifesto puts it) by members of the proletariat. Both socialism and communism distinguish carefully between private ownership of capital (land, factories, resources, etc.) and private property (homes, material objects and so forth).

Types of property[edit]

Most legal systems distinguish between different types of property, especially between land (immovable propertyestate in landreal estatereal property) and all other forms of property—goods and chattelsmovable property or personal property, including the value of legal tender if not the legal tender itself, as the manufacturer rather than the possessor might be the owner. They often distinguish tangible and intangible property. One categorization scheme specifies three species of property: land, improvements (immovable man-made things), and personal property (movable man-made things).[citation needed]

In common lawreal property (immovable property) is the combination of interests in land and improvements thereto, and personal property is interest in movable property. Real property rights are rights relating to the land. These rights include ownership and usage. Owners can grant rights to persons and entities in the form of leaseslicenses and easements.

Throughout the last centuries of the second millennium, with the development of more complex theories of property, the concept of personal property had become divided[by whom?] into tangible property (such as cars and clothing) and intangible property (such as financial instruments, including stocks and bondsintellectual property, including patentscopyrights and trademarksdigital filescommunication channels; and certain forms of identifier, including Internet domain names, some forms of network address, some forms of handle and again trademarks).

Treatment of intangible property is such that an article of property is, by law or otherwise by traditional conceptualization, subject to expiration even when inheritable, which is a key distinction from tangible property. Upon expiration, the property, if of the intellectual category, becomes a part of public domain, to be used by but not owned by anybody, and possibly used by more than one party simultaneously due the inapplicability of scarcity to intellectual property. Whereas things such as communications channels and pairs of electromagnetic spectrum band and signal transmission power can only be used by a single party at a time, or a single party in a divisible context, if owned or used at all. Thus far or usually those are not considered property, or at least not private property, even though the party bearing right of exclusive use may transfer that right to another.

In many societies the human body is considered property of some kind or other. The question of the ownership and rights to one’s body arise in general in the discussion of human rights, including the specific issues of slaveryconscription, rights of children under the age of majoritymarriageabortionprostitutiondrugseuthanasia and organ donation.

United Kingdom[edit]

England and Wales[edit]

Main article: Barristers in England and Wales

Helena Normanton, first female British barrister.

Although with somewhat different laws, England and Wales are considered within the United Kingdom a single united and unified legal jurisdiction for the purposes of both civil and criminal law, alongside Scotland and Northern Ireland, the other two legal jurisdictions within the United Kingdom. England and Wales are covered by a common bar (an organisation of barristers) and a single law society (an organisation of solicitors).

The profession of barrister in England and Wales is a separate profession from that of solicitor. It is, however, possible to hold the qualification of both barrister and solicitor at the same time. It is not necessary to leave the bar to qualify as a solicitor.

Barristers are regulated by the Bar Standards Board, a division of the General Council of the Bar. A barrister must be a member of one of the Inns of Court, which traditionally educated and regulated barristers. There are four Inns of Court: The Honourable Society of Lincoln’s InnThe Honourable Society of Gray’s InnThe Honourable Society of the Middle Temple, and The Honourable Society of the Inner Temple. All are situated in central London, near the Royal Courts of Justice. They perform scholastic and social roles, and in all cases, provide financial aid to student barristers (subject to merit) through scholarships. It is the Inns that actually “call” the student to the Bar at a ceremony similar to a graduation. Social functions include dining with other members and guests and hosting other events.

Law graduates wishing to work and be known as barristers must take the Bar Professional Training Course (BPTC – previously Bar Vocational Course or BVC) at one of the institutions authorised by the Bar Council to offer the BPTC.[16] On successful completion of the BPTC student barristers are “called” to the bar by their respective inns and are elevated to the degree of “Barrister”. However, before they can practise independently they must first undertake 12 months of pupillage. The first six months of this period is spent shadowing more senior practitioners, after which pupil barristers may begin to undertake some court work of their own. Following successful completion of this stage, most barristers then join a set of Chambers, a group of counsel who share the costs of premises and support staff whilst remaining individually self-employed.

In December 2014 there were just over 15,500 barristers in independent practice, of whom about ten percent are Queen’s Counsel and the remainder are junior barristers. Many barristers (about 2,800) are employed in companies as ‘in-house’ counsel, or by local or national government or in academic institutions.

Certain barristers in England and Wales are now instructed directly by members of the public.[17] Members of the public may engage the services of the barrister directly within the framework of the Public Access Scheme; a solicitor is not involved at any stage. Barristers undertaking public access work can provide legal advice and representation in court in almost all areas of law (see the Public Access Information on the Bar Council website)[18] and are entitled to represent clients in any court or tribunal in England and Wales. Once instructions from a client are accepted, it is the barrister (rather than the solicitor) who advises and guides the client through the relevant legal procedure or litigation.

Before a barrister can undertake Public Access work, they must have completed a special course. At present, about one in 20 barristers has so qualified. There is also a separate scheme called ‘Licensed Access’, available to certain nominated classes of professional client; it is not open to the general public. Public access work is experiencing a huge surge at the bar, with barristers taking advantage of the new opportunity for the bar to make profit in the face of legal aid cuts elsewhere in the profession.

The ability of barristers to accept such instructions is a recent development; it results from a change in the rules set down by the General Council of the Bar in July 2004. The Public Access Scheme has been introduced as part of the drive to open up the legal system to the public and to make it easier and cheaper to obtain access to legal advice. It further reduces the distinction between solicitors and barristers. The distinction remains however because there are certain aspects of a solicitor’s role that a barrister is not able to undertake.

Some honorific suffixes to signify notable barristers may be Esquire.[19] Even though the term barrister-at-law is sometimes seen, and was once very common, it has never been formally correct in England and Wales. Barrister is the only correct nomenclature.[20]

Northern Ireland[edit]

In April 2003 there were 554 barristers in independent practice in Northern Ireland. 66 were Queen’s Counsel (QCs), barristers who have earned a high reputation and are appointed by the Queen on the recommendation of the Lord Chancellor as senior advocates and advisers.

Those barristers who are not QCs are called Junior Counsel and are styled “BL” or “Barrister-at-Law”. The term junior is often misleading since many members of the Junior Bar are experienced barristers with considerable expertise.[citation needed]

Benchers are, and have been for centuries, the governing bodies of the four Inns of Court in London and King’s Inns, Dublin. The Benchers of the Inn of Court of Northern Ireland governed the Inn until the enactment of the Constitution of the Inn in 1983, which provides that the government of the Inn is shared between the Benchers, the Executive Council of the Inn and members of the Inn assembled in General Meeting.

The Executive Council (through its Education Committee) is responsible for considering Memorials submitted by applicants for admission as students of the Inn and by Bar students of the Inn for admission to the degree of Barrister-at-Law and making recommendations to the Benchers. The final decisions on these Memorials are taken by the Benchers. The Benchers also have the exclusive power of expelling or suspending a Bar student and of disbarring a barrister or suspending a barrister from practice.

The Executive Council is also involved with: education; fees of students; calling counsel to the Bar, although call to the Bar is performed by the Lord Chief Justice of Northern Ireland on the invitation of the Benchers; administration of the Bar Library (to which all practising members of the Bar belong); and liaising with corresponding bodies in other countries.

The Bar Council is responsible for the maintenance of the standards, honour and independence of the Bar and, through its Professional Conduct Committee, receives and investigates complaints against members of the Bar in their professional capacity.

Scotland