General Property Rights and Special Property Rights: Transferability and Enforceability

1. Introduction

Property law in common law systems recognises different tiers or types of rights that a person can have in a thing. Two fundamental concepts in this area are general property rights and special property rights.

These terms distinguish between the broad, comprehensive ownership of property and more limited, specific interests in property.

In essence, a general property right refers to full ownership (the aggregate of rights that constitute dominion over an asset), whereas a special property right refers to a limited or qualified interest in an asset, usually carved out of the general ownership.

This distinction is conceptual rather than case-specific, and it underpins many doctrines in property law in both the United Kingdom and other common law jurisdictions (with parallels in U.S. law).

This article provides a conceptual overview of general and special property rights, explaining their meanings in the legal framework of property law, distinguishing their characteristics, and illustrating why the distinction matters.

2. The Concept of Property Rights in Common Law: General Property Rights and Special Property Rights

A property right is not the physical object itself but a right (or bundle of rights) concerning that object. Property rights are typically rights in rem – enforceable against the world – giving the holder the ability to exclude others from the asset.

Full ownership of property traditionally implies a collection of entitlements such as the right to possess, use, enjoy, and dispose of the asset.

Common law jurists often describe ownership as the most comprehensive interest one can have in property, sometimes calling it “absolute” ownership or dominium.

In modern terms, this full ownership correlates to what we call a general property right. By contrast, the law also permits interests that are less than full ownership – these are referred to as special property rights.

Importantly, property rights can be partitioned such that different individuals hold different interests in the same asset.

2.1 General Property Rights: Full Ownership

General property right is essentially synonymous with ownership in the fullest sense. It denotes the general property in an asset – the unrestricted, residual rights that remain when no special limited interest has been carved out.

A holder of a general property right has title to the property and typically enjoys the complete bundle of ownership rights (possession, use, exclusion, and alienation) subject only to general law.

The idea of general property signifies that the person is the “general owner” of the thing, with an interest that is superior to any special claims others might have.

Under common law, “property” in goods usually means the general property (ownership) as opposed to any lesser interest. For example, the Sale of Goods Act 1979 s61 defines “property” to mean “the general property in goods, and not merely a special property”.​

This statutory language makes clear that property in the context of a sale refers to the transfer of full ownership rights in the goods, not just a limited interest.

In practice, when someone has the general property in an item, they are recognised as the true owner. They can assert their right against anyone interfering with the item, and they can transfer the item freely (sell it, lease it, bequeath it, etc.).

Their interest is generally unlimited in duration – an owner’s title does not expire with time under ordinary circumstances; it persists until the owner transfers it or it is extinguished by law.

A general property right is often described as absolute or complete, but in law this absoluteness is relative – it means “complete as against all lesser interests.” If no one else has a valid claim to the asset, the general owner’s title is supreme.

However, it is possible (and common) for an owner to grant or become subject to certain specific rights in favour of others while still retaining the general property. In such cases, the owner remains the general property holder, but the ownership is subject to the special property rights of others.

2.2 Special Property Rights: Limited or Qualified Interests

Special property rights are those property interests that are limited in scope, duration, or purpose – they do not amount to full ownership, but rather a partial or qualified interest in the asset.

A classic definition describes a special property right as a qualified interest subordinate to the general property or ownership​.

In other words, a special property right gives its holder certain specific entitlements with respect to the property, but ultimate ownership (the general property) remains with someone else.

Special property rights arise in situations where the incidents of ownership are divided between parties, or where the law recognises a limited interest for particular purposes.

Common law examples of special property rights abound, especially in the context of personal property (chattels):

2.2.1 Bailment (Possessory Interest)

In a bailment, the owner of a chattel (the bailor) delivers possession of it to another person (the bailee) for a specific purpose (e.g. storage, repair, transport) with an understanding that it will be returned.

During the bailment, the bailee has a special property in the chattel, while the bailor retains the general property.

The bailee’s special property right is essentially the right to possess and use the item as necessary for the bailment’s purpose, and to exclude others from it, even against third parties who are strangers to the bailment.

Meanwhile, the bailor as general owner retains the ultimate ownership and the right to get the item back. As a judge explained, “the general property in the goods concerned remains in the bailor, while only a special property passes to the bailee”​.

This division allows both parties to protect their interests: the bailee can sue a wrongdoer for interference with the chattel (since the bailee’s possessory interest is recognised by law), and the bailor can likewise sue for any injury to their reversionary interest (the residual ownership).

The special property in this case lasts only for the duration of the bailment and for the limited purposes of the bailment.

2.2.2 Pledge (Security Interest)

A pledge is a form of security for a debt where the debtor (pledgor) delivers personal property to the creditor (pledgee) as collateral.

Under common law, the pledgee does not become the full owner of the item but acquires a special property interest sufficient to protect their security.

The pledgee’s rights are limited – essentially the right to hold the asset and, upon default, to sell it to satisfy the debt – whereas the pledgor retains general ownership (and the right to redeem the item by paying the debt).

This special property interest of the pledgee is extinguished when the debt is repaid and the collateral is returned.

\Lienholders have analogous rights: for example, a repairer who holds a lien on a car for unpaid charges may keep possession of the car until paid.

The lienholder’s interest, like the pledgee’s, is a qualified right to the property (often including a right to sell under prescribed conditions), subordinate to the owner’s general property.

Special property rights also exist in the context of real property (land) in the form of limited interests in land:

2.2.3 Leasehold Interests

A lease of land or a building gives the tenant a property interest for a limited duration (the lease term), while the landlord retains the freehold or reversionary interest.

The tenant is often regarded as the owner of the land for the term of the lease (having the right to exclusive possession for that time), which is a special kind of property right limited by duration and terms.

Meanwhile, the landlord’s ownership is the general property in the premises, subject to the lease. Upon expiration of the lease, full and exclusive possession (the incidents of ownership) revert to the landlord.

In common law classification, a leasehold is an estate in land but not a full fee simple ownership; it is time-bound and conditional on rent and other covenants, making it analogous to a special property right carved out of the landlord’s estate.

2.2.4 Easements and Profits

An easement is a non-possessory property interest that one person (the easement holder) has in another’s land, entitling the holder to use the land for a specific purpose (such as a right of way) or to prevent certain uses by the landowner.

It is well described as a property right in a person or group of persons to use the land of another for a special purpose not inconsistent with the general property right in the owner of the land, always distinct from the right to occupy and enjoy the land itself. It gives no title to the land on which it is imposed.

Here, the landowner holds the general property (title and all residual rights) to the land, but it is subject to the easement holder’s special right to use or restrict the land for the easement’s purpose.

Similarly, a profit à prendre (the right to enter someone’s land to take something, like minerals or timber) is a special interest in the land of another.

These interests are limited in scope (and sometimes in duration) and do not confer general ownership of the land, but they are nevertheless recognised as property rights enforceable against even subsequent purchasers of the land (they “run with the land”).

What characterises all these special property rights is that they are circumscribed and exist in relation to the general property held by someone else. They often arise from agreement or specific legal principles, and they typically have defined limits – whether in use, in time, or in transferability.

Often, special property rights cannot be freely sold or transferred independent of the underlying general property (except in ways the law permits, such as an assignment of a lease, or the transfer of a negotiable document of title representing goods in bailment).

By contrast, the holder of the general property can generally transfer his interest, including subjecting it to the special interest.

3. Key Distinctions Between General Property Rights and Special Property Rights

While both general and special property rights are recognised and protected in law, they differ in several important respects:

3.1 Scope of Rights

A general property right is comprehensive. The owner with general property has the full range of control and use of the asset, constrained only by law or any voluntarily assumed restrictions. Special property rights are narrower, conferring only specific uses or claims.

For example, the general owner of a car can use it for any lawful purpose or sell it at will, whereas a lienholder’s special right is only to retain (and possibly sell) the car if the debt is unpaid – a very specific entitlement.

3.2 Duration

General property rights (ownership) are typically of indefinite duration – they last as long as the owner wishes (or until the owner dies, at which point the ownership interest passes to heirs or devisees, or until the owner transfers it).

Special property rights often have a finite duration or expire upon certain conditions. A lease ends after its term, a bailment ends when the purpose is fulfilled and the item returned, a pledge ends upon repayment of the loan, and an easement may terminate if its conditions (or the necessity for it) cease.

Thus, special interests are frequently temporary or conditional, whereas ownership is enduring.

3.3 Dominance and Residual Interest

The general property right is the dominant, residual interest in the asset – meaning that whatever sticks in the “bundle of rights” are not given away remain with the general owner.

If a special property right is terminated or extinguished, those rights revert to or re-merge with the general ownership.

For instance, when a tenant’s lease expires, the right of possession reverts fully to the landlord; when a pledge is redeemed, the pledgee’s interest disappears and full unencumbered ownership is restored to the pledgor.

3.4 Transferability

Ownership (general property) is usually freely transferable (the owner can sell or gift the entire interest to another, thereby transferring the general property).

Special property rights, being tied to a particular purpose or relationship, are often not freely transferable unless the law or the terms of the arrangement allow it.

Some special interests can be transferred or assigned – for example, many leases can be assigned to new tenants with consent, and easements can be transferred if they are attached to land (appurtenant easements pass with the land).

However, others cannot be easily transferred (a bailee cannot transfer their possessory interest to a stranger without breaching the bailment, and a license in land is typically personal to the licensee).

In contrast, the general owner can transfer the property, though doing so often will carry the special interest with it (the buyer takes subject to existing leases, easements, etc., which persist as encumbrances on the property).

3.5 Enforceability and Remedies

The holder of a general property right can enforce all aspects of ownership. If someone interferes with the property (e.g., a trespass or conversion), the general owner can sue for the full damage to their interest. The holder of a special property right can enforce the right to the extent of their interest.

For example, a bailee or pledgee can sue third parties for damage to the chattel in their possession, but any recovery might be held for the benefit of the general owner beyond the special interest.

This prevents wrongdoers from escaping liability simply because the interest is split; but the law also ensures there is no double recovery – typically the special-interest holder’s recovery is limited to their stake, or if they recover full value (as sometimes allowed), they hold the surplus for the general owner.

The general theme is that each party can protect their own interest through legal remedies.

4. Coexistence and Relativity of Interests

One important aspect of common law property is that general and special property rights can coexist in the same object, held by different parties.

Property rights are relative: the general owner’s claim is ultimate, but a special interest holder’s rights are real and enforceable against anyone with a lesser claim.

This relativity is illustrated by the principle that possession is good title against the world except the true owner.

For centuries, courts have enforced these principles. Even a mere finder of property (with only possessory rights) can prevail against a wrongdoer who has no claim, and a bailee in possession can recover full value from a third party who harms the goods, being treated as the presumptive owner against the wrongdoer​.

These rules ensure a wrongdoer cannot exploit divided ownership to escape liability, while also preventing double recovery by coordinating the rights of the interest-holders.

For instance, a tenant’s leasehold interest and a landlord’s reversionary interest coexist in leased land, just as a homeowner’s title and a bank’s mortgage interest can coexist in the same house.

From a policy perspective, recognising special property rights ensures that the law protects legitimate limited interests in property, thereby facilitating transactions and arrangements like leasing, lending, and entrusting goods.

If the law only acknowledged absolute ownership, many modern commercial and personal practices would be impossible or very risky. By carving the bundle of rights, parties can share or temporarily transfer aspects of property without relinquishing it entirely.

5. Reflections in U.S. Law

The distinction between general and special property rights in Anglo-American law is echoed in the United States. U.S. common law inherited these concepts from English law, and they remain evident both in case law and in statutory provisions.

For example, the Uniform Commercial Code (UCC) explicitly uses the term “special property” to describe the buyer’s interest in goods identified to a contract of sale, even before the buyer has obtained title.

Under UCC 2-501(1), “The buyer obtains a special property and an insurable interest in goods by identification of existing goods as goods to which the contract refers…”​

Here, even though the seller may retain the general property (title) until certain conditions are met (like payment or delivery), the buyer’s stake in the identified goods is recognised as a special property right.

This gives the buyer standing to insure the goods and in some cases to recover them if the seller fails to deliver (for instance, if the seller becomes insolvent, the buyer with a special property can reclaim goods that were paid for).

The seller, conversely, retains a form of special interest (often a security interest or retention of title) until paid​, illustrating how the code carefully balances the interests of both parties with split property rights.

State laws in the U.S. also preserve the bailment principles of special vs general property. As we saw with the Georgia statute above, many jurisdictions allow both the bailee and bailor to bring actions against wrongdoers according to their respective interests​.

In general, U.S. law aligns with common-law principles: full ownership is the baseline property right, and the law allows it to be segmented into partial interests for various reasons.

6. Conclusion

In summary, general property rights and special property rights are core conceptual tools in the common law of property, delineating the difference between complete ownership of an asset and a limited interest in it.

A general property right is effectively ownership – the broad claim to an asset against all others – whereas a special property right is a particularised claim – a right to some limited use or benefit of that asset, subordinate to the owner’s interest.

Both types of rights are “property” in the eyes of the law, meaning both are legally protected and enforceable, but the nature and extent of protection correspond to the nature of the interest.

Understanding this distinction is crucial for appreciating how property law accommodates complex relationships and transactions. It explains how multiple parties can have legally recognised interests in the same property at the same time, and how those interests are ordered.

It also reflects the idea that property is a bundle of separable rights: one stick in the bundle can be granted to someone while the rest remain with another.

Using the terminology of general and special property clarifies discussions of property entitlements:

When we say someone “owns” something, we usually mean they hold the general property, while another person’s limited right (like a lender’s security interest or a tenant’s lease) would be a special property interest, not the entire title.

In both common law and U.S. law, this conceptual distinction remains a fundamental aspect of property law’s structure, ensuring that each party’s interests in a resource are acknowledged and can be precisely defined within the legal framework.

7. FAQs

7.1 Can Special Property Rights Evolve Into General Property Rights?

Special property rights do not typically evolve into general property rights, as they are inherently limited and specific, created with distinct purposes and conditions. However, under certain circumstances and legal provisions, transformations can occur.

For instance, a lessee can acquire general property rights through a lease-to-own agreement, allowing them to convert their special property right of leasehold into full ownership over time.

Another example is adverse possession, a doctrine where someone occupying another’s land can eventually acquire title, converting a limited, unauthorised possession into a general property right.

Such changes are strictly governed by laws, contracts, and judicial principles and usually require the fulfilment of specific conditions (e.g., the passage of time) and legal procedures.

7.2 Is A Security Interest A Special Property Right?

A security interest is indeed considered a form of special property right. It represents a limited right or interest a lender has in the borrower’s property, granted as a security for the debt or obligation.

This type of interest is narrower and more specific than general property rights, typically conferring upon the lender the right to take possession of or sell the property in the event of the borrower’s default on the obligation.

7.3 What Are The Limitations Of Special Property Rights Compared To General Property Rights?

Special property rights inherently possess more limitations when compared to general property rights.

Unlike general property rights, which grant extensive control, enjoyment, and disposal rights over a property, special property rights are narrowly tailored and specifically defined, often conferring limited rights or uses.

Typically arising from contractual agreements, statutes, or specific legal arrangements, they restrict the holder to particular uses or actions and may not allow transfer or modification of the right without proper authorisation.

For example, an easement may allow a person to use a specific path through another’s land but not to access or use the rest or modify the path. Similarly, a security interest grants a lender a claim against a property.

Still, it does not confer the broad array of rights associated with ownership until specific enforcement actions are initiated due to a default.