Definition and Concept of Immovable Property

What is immovable property and movable property?

Immovable property is commonly referred to as real estate – a residential
house, a warehouse, a manufacturing unit or a factory. The plants or trees
that are attached to the earth are referred to as immovable property. In
case of realty, they remain liable to legal statutes and also taxation.

In contrast, movable property refers to certain valuable things that can be

moved like jewellery, computers, watches, money etc. The term ‘movable
property’ has been mentioned in Section 12(36) of the General Clause Act,
1847 and the Transfer of Property Act, 1982.

Section 22 of the Indian Penal Code (IPC) has defined movable property as
a corporeal property except for land and things permanently attached to
the earth.

Different types of immovable properties

The multiple types of immovable properties prevalent in the real estate
context have been discussed below -

1. Land

Land can be referred to as a determinate portion of the surface of the earth

that can be covered by water, a column of surface above the surface, the
ground that lies beneath the ground’s surface. All of these objects that are
on or even under the ground’s surface and are natural fall under the
definition of land.

Moreover, all those objects that are placed by human agency or that are
under the surface with the intention of permanent annexation are referred
to as immovable property like a wall, buildings, fences etc.

2. Benefits that arise from the land

Apart from the point of view of physical land, every benefit that arises out
of land is regarded as immovable property. The Registration Act also
includes benefits of immovable property, hereditary allowances,
fisheries and ferries. In a similar manner, a right to collect profits as well as
rent from immovable property, right for collecting dues from a market on
a particular piece of land is also considered to be immovable property.
3. Things attached to the earth Section 3 of Transfer of Property
Act majorly defines the expression ‘attached to earth’ as including:

• Things that are rooted in the earth – Things rooted in earth include shrubs and
trees except standing timber, grasses and crops. Whether shrubs or trees are
regarded as immovable or movable depends upon the cases and
circumstances.

In case the intention is that trees should continue to possess the benefit of any
further nutriment or sustenance, enjoining their fruits, then such a tree is
considered as immovable property. But in case if the intention is to oust
them as soon as the utilizing of the wood for the building or any industrial
purpose, they would be timber and then it would be considered as movable
property.

• Things that are embedded in the earth – Things that are embedded in earth
include things like buildings, houses etc. However, certain things like an
embedded anchor in the land for holding a ship is not considered as an
immovable property to determine if such things are immovable or movable
and depends on the case.

• Things that are attached to what is so embedded – The permanent

beneficial enjoyment of the things that are attached to the land like
windows and doors are also permanent and immovable properties.
Whereas, the window blinds and electric fans are counted under a movable
property.

• Chattel that is attached to buildings or earth – The growing grasses and

crops, standing timber are all movable properties. The standing timber and
growing crops can be passed to purchases if the land is sold.

Differences between immovable and movable

properties
The differences between immovable and movable properties are as
follows:
 Parameter Movable property Immovable property

Watches, jewellery, Real estate like a factory, house, warehouse,

Examples and
money, computers manufacturing plant, hereditary allowances etc.
instances
etc. are counted under immovable property

Should be registered under the Registration Act,

Registration Not required
1908 in case its value exceeds Rs. 100.

Can easily be
Inheritance This is not divisible or breakable so easily
partitioned

Can easily be Cannot be transferred without a will, partition or

Transfer
transferred gift deed

When used as a
Pledge Lien/mortgage
security

Rights associated with immovable property

If a person owns immovable property, she/he has the following rights.
These include:

Right of collecting rent – A property owner is legally eligible for collecting

rent by renting out or leasing the concerned property.

Right to collect dues – In case the property has been let out so that
another party/person can cultivate on this or use this through his/her
service, the immovable property’s owner has the right of collecting the
dues.

Right of the ferry – This refers to the authority’s right of maintaining a

vessel upon a water body, in order to transport people and vehicles across
the same, in exchange for a payment. A ferry can also prove to be a
continuation of a highway from one side of any water body to another.

Right of way – A particular land may either be public or private and

trespassing on the same may happen to be an offence legally.

Right of fishery – There can be access rights to fish in a certain water body
or access to one factory and this would be restricted to only the immovable
property’s owner.
In conclusion, an immovable property is one of the most preferred
investment instruments and preferred by investors with a long term
investment horizon. Owing to its non-depreciating nature, it can be termed
as an evergreen investment option.

Kinds of properties
Property is basically of two categories : Corporeal Property and Incorporeal
Property. Corporeal Property is visible and tangible, whereas incorporeal Property
is not. Moreover, corporeal Property is the right of ownership in material things,
whereas incorporeal Property is an incorporeal right in rem. Corporeal Property is
further categorized into Movable and Immovable Property. Incorporeal Property
is classified into two categories : in re propria and rights in re aliena or
encumbrances.

Corporeal and Incorporeal Property

These are the two categories of properties that exist.

(i) Corporeal Property has a tangible existence in the world and is related to
material things such as land, house, ornaments, silver, etc.

(ii) Incorporeal Property is intangible because it’s existence is neither visible nor
tangible. Right of easement and copyrights are incorporeal Property.

Movable and Immovable Property

All corporeal Property may either be movable or immovable in nature. The basis
of this kind of classification is the portability of the object. The two categories are
discussed as follows:

(i) Section 3 of the general clauses act, 1897; Section 2(6) of the Indian
Registration Act, 1908 defines the term immovable Property. It includes land,
things attached and embedded in the land.

(ii) On the other, movable Property includes any corporeal property which is not
immovable property. It may include furniture, stationery items, etc. The concept
of immovable Property holds greater importance and has elaborately been dealt
with under Indian statutes. The following mentioned are judicially recognized as
immovable Property:

1. Right of way
2. Right to collect the rent of immovable Property
3. Right of ferry
4. mortgagor’s right to redeem the mortgage
5. The interest of the mortgagee in immovable Property
6. Right of fishery
7. Right to collect lac from trees
On the other hand, the following are not judicially recognized as immovable
Property:
 1. Standing timber
2. Growing crops
3. Grass
4. Royalty
5. A decree of sale or sale of immovable property on a mortgage
6. Right of the purchaser to have land registered in the name
7. Right to recover maintenance allowance even though it is charged
through immovable Property
The above-mentioned lists are not exhaustive and are subject to judicial
interpretations from time to time.

Public Property and Private Property

With reference to the concept of ownership, Property may be classified into public
and private property. The two kinds are discussed below:

(i) Public Property is owned by the public as such in some governmental capacity.
In other words, it is owned by the government and used for the beneficial use of
the public in general. A park or a government hospital is a public property.

(ii) Private Property is that Property which is owned by a particular individual or

some other private person. A residential house of a citizen may be his private
property.

Real and Personal Property

This distinction between real and personal Property basically originated from
Roman law, and it still exists in England. The two categories of Property are
discussed below:

(i) Real Property means all rights over land recognized by law.

(ii) Personal Property means all other proprietary rights, whether they are right
in rem or in personam.

Right in re aliena and Right in re propria

Right in re aliena are also sometimes referred to as encumbrances. These are the
rights of a specific user. These prevent the owner from exercising some definite
right in reference to his Property. Lease, security and trust may be included under
this category. Right in re propria are immaterial forms of Property. These are a
product of human skill and labour. Patents, copyrights and commercial goodwill
may be included under this category.

Intellectual Property

Meaning
Intellectual Property is, in simpler terms, creation of intellect or wisdom or of the
human mind. It is related to intellectual innovation and innovation in the literary,
scientific and artistic fields. Nations around the world are making efforts toward
protecting intellectual property. One major reason is to recognize by way of
statute, the economic rights of creators of these intellectual properties. Another
reason is the urge to promote creativity amongst the masses which will, in the
long run, contribute towards an environment comprising of only fair trade
practices. The law related to intellectual Property aims at protecting the people
who create and own the intellectual goods and services by granting them certain
time-limited rights to control the use made of those productions. Those rights do
not apply to the physical object in which the creation may be embodied but
instead to the intellectual creation as such.

Kinds of Intellectual Property

Intellectual Property may be classified into various categories.

However, a few of the most widely utilized and owned intellectual properties have
been discussed below:

Patent
A patent is a kind of Property that has intellectual worth attached to it. It is an
exclusive right granted for an invention which is a product which is a result of a
person’s ability to of doing something or offers a new technological solution to a
problem. In order to obtain a patent, it is necessary that the technological
information must be disclosed to the public in a patent application. A patent so
obtained remains in force for twenty years.

Trademark
Another widely popular form of intellectual Property is a trademark. Trademark is
a sign capable of distinguishing goods and services of one enterprise from
another. These are basically a means to protect the unique identity of renowned
brands. It enables a customer to recognize the brand or the product instantly
without being misled. An example of a trademark would be the logos or slogans
used by brands to make their products uniquely identifiable.

Copyright
Copyright is available to the creators of literary, dramatic, musical, artistic,
producer of cinematograph acts or sound recording. It determines whether and
in what conditions the original work may be used by persons other than the owner
of the unique intellectual property.

Almost every product has copyright. These include the visible symbols on the
product packaging and label etc. Copyrights protect original creative work has
been written down on a piece of paper, saved on electronic storage hard drive
device or preserved in some other tangible format.

Geographical Indicators (gi)

It is an indicator used on products having a specific geographical origin and
possess qualities that exist due to their basic origin. The sign must identify a
product as originating in a given place, and the quality, characteristics or
reputation should be due to the place of origin. Recently, Rasgulla from Orissa
and Kadaknath chicken from Madhya Pradesh has been granted the geographical
indication tag in India.

Industrial Design
Industrial design is related to the products which are a part of the industrial set
up. It refers to the shape, configuration, colour or pattern which may be an
ornamental or aesthetic aspect of a product. The owners of a registered industrial
design have a right to prevent third parties from making, selling, importing
articles bearing a design which is a copy. Thereby any person using someone
else’s industrial design may be liable to pay damages to the owner of the
industrial design.

Trade Secret
Trade secret in simpler terms implies the strategy adopted by the owner of the
business. It may be any confidential business information which provides an
organization with a complete edge in the world market of the respective product
it deals with. A trade secret is an initial step for an investor. It is essential that
the idea or formula behind the unique trade opportunity remains secretive. Any
person or organization indulging in unauthorized use of trade secrets is regarded
to be guilty of unfair trade practice. For example, the recipe of any popular
noodles brand may be considered as a trade secret of that brand.

Commercial Goodwill
Commercial goodwill is a prominent form of incorporeal right. The goodwill of a
commercial business is a valuable right acquired by the owner by his labour and
skill. The owner has the exclusive right of use and profit from the business and
anyone who seeks to make use of it by falsely representing to the public that he
is himself carrying on the business in question shall be violating this right.

It can be very well concluded that the concept of Property has been in existence
since the existence of human civilisation. Over the years, the concept of Property
has witnessed a vast transition. The reason behind this transition may be the
jurisprudential aspect of the concept. Thus, from a piece of brick to an idea behind
a product, Property as a concept has developed in an unanticipated manner. The
research being done in the field of property law makes it a dynamic concept which
will continue to evolve in the years to come in the near future.