Conflict of Property Laws - Choice of Law

Choice of Law

As societies developed economically, the ownership of and control over land was the major mechanism for accumulating wealth and exercising power. In modern times, there are many new forms of property for people to own and there are many new profitable ways for people to exploit their rights over property. Hence, the declared function of Property Law is to govern how title to property is created and negotiated, and the means available to protect those rights against unjustified interference by non-title holders. The standard choice of law rule is stated to be the application of the lex situs. In England and Wales, Australia, Canada, and the United States this rule derives from British South Africa Co v. Companhia de Moçambique A.C. 602 in English law, and in the U.S.: Massie v. Watts, 10 U.S. (6 Cranch.) 148 (1810); Clarke v. Clarke, 178 U.S. 186 (1900); and Fall v. Eastin, 215 U.S. 1 (1909) which hold that courts have no jurisdiction to hear any lawsuit to determine the title to, the right to possession of, or the recovery of damages for trespass to any immovable property located outside their territorial jurisdiction.

But this simple proposition requires considerable caution given that this topic is lacking modern development (all the major source cases are quite old) and there is substantial overlap with contracts by which rights in or over property may be created and/or transferred, the various systems of Equity which, through the law of trusts, control the extent to which non-title holders may have an interest in property, succession which regulates inheritance, and tort by which unlawful interferences with property may be defended. Hence, questions of jurisdiction and the scope of remedies available and capable of being enforced have become confused.