REAL OR PERSONAL PROPERTY: A DISTINCTION WITHOUT DIFFERENCE: AN EXAMINATION IN THE CREATION OF SECURITY INTEREST.

Abstract

This paper is focused on the Real and Personal Property in the creation of Security Interest with a view to distinguishing the differences between them in credit securities generally. The classification of property as "real" or "personal" has long served as a foundational organizing principle in common law. However, within the context of the creation of security interests, this distinction increasingly appears difficult to sustain. Real property security, governed by mortgage and charge law and personal property security, governed by instruments such as UCC Article 9 and analogous Personal Property Security Acts, have historically operated as parallel but separate regimes, each with distinct rules on creation, perfection, and priority. Yet the realities of modern secured transactions, particularly the treatment of fixtures, intangible assets, and hybrid collateral, consistently expose the arbitrariness of the divide. This paper argues that the real/personal property distinction, while nominally preserved across most common law jurisdictions, has lost much of its practical and conceptual force in the law of security interests. The functional convergence of the two regimes in legislative reform, judicial reasoning, and commercial practice suggests that the categorization operates today more as a procedural inconvenience than a principled legal boundary. The paper calls for a unified, transaction-focused framework that prioritizes the economic substance of the security arrangement over rigid property classifications, thereby achieving greater coherence, predictability, and efficiency in secured financing law. This work also builds on existing knowledge on secured transactions law reform with particular reference, and usefulness, to Nigeria.