Rights, Title of Property

Various Rights

Right is a legally enforceable claim that an individual has towards another to or not to do a specific act. Interest is a comprehensive term to describe any right, claim, or privilege of one person against another. So interest includes right also. One can have interest over a property without right but cannot have right without interest.

Life Right also known as life interest is the right in the property that lasts for a person’s life time and terminates on the death of the person. It is only for the benefit of that person and she or he cannot alienate the property.

Enjoyment Right or quite enjoyment right is a right to privacy and undisturbed use of the property. It is a right to enjoy the benefits and yields from the property.

Absolute Right is one and is total and complete right, unqualified one and is not subject to any lien. A person with absolute right has both legal and beneficial possession of the property. Absolute right is legally enforceable to some action regarding the property, to have and to hold the same in exclusive possession, to quietly enjoy the property without any interruption or interference, to enjoy the property quietly, to enjoy the yields from the property and exclude or refrain any other persons from the property.

Contingent Right, as applied to immovable property, is an executory right coupled with an interest. The meaning of the contingent right can be understood from the word contingent which denotes that there is actually no interest available presently or a right may vest or confer on occurrence of a specific event.

For example, ‘A’ may write a will granting a life estate (life right) to his wife and then it shall pass to his son only whenhe gets married otherwise it shall go to a trust. Here the son is contingent remainder, the contingency being his marriage.

Vested Right is an existing right independent of any contingency. Vested means existing, permanent, complete, absolute and cannot be taken back. Whereas the contingent right or contingent interest in a property is founded on anticipation of occurrence of certain specified event.

Confusion may prevail in the context of use of vested and contingent rights in common and legal parlance. Hence, one must be careful in using the words ‘vested’ and ‘contingent’. Vested right can be created with postponing it enjoyment to a future date. A settlor can reserve life interest in herself to be exercised during her lifetime and absolute right is vested with settlee only on the death of the settlor. The distinction lies in properly construing the document and reaching whether the right created is vested or contingent.

Unqualified Right, the word 'unqualified' means 'not modified by any condition or restriction' and shall not be confused as 'lack of qualification’. Hence, it is absolute and cannot be reversed.

Title – Marketable and Clear

Ownership is a bundle of rights over a piece of property viz.,

§  To have and hold

§  To enjoy quietly and peacefully

§  To avoid interruption

§  To receive profits and yields

§  To modify, increase, decrease or destroy

§  To alienate

Title of the property is the evidence of the ownership. Title is acquired/ created by the act of parties or operation of law. To find the marketability of title, investigation has to be made to ensure that the property is properly devolved as per succession or transferred as per Acts on the executant for which previous documents are to be perused and essentially scrutinized and the uninterrupted continuous possession of property by the executant and his predecessor are to be ensured.

After ascertaining the flow of title unto the present owner, investigation is to be made to ensure that the property is free from encumbrance, mortgage, lien, charge, etc and not offered as security or collateral security to any Court of Law or to any financial institution.

Marketability and clearness of title

The marketable title is one, normally expected as a free from defects and is transferable, but it does not mean absolute absence of any defect. It allows the owner to transfer his ownership right to another at his wish. It may or may not have any defects but does not affect is transferability or marketability. On the other hand, the clear title is a title which has no obstacles to have , hold, enjoy and also to transfer. It has no liens, charge or encumbrance of all types. The title is unblemished and clear.

Defects that make the title unmarketable.

·        Undischarged mortgage

·        Restrictive covenants to transfer

·        Encumbrances

Defects that affect the clearness of title.

·        Easements on the property as a servient

·        Variations in the names of executant/ claimants

·        Adverse possession

·        Undischarged lien