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What does the term 'Droit de suite' refer to?
Property law applies only to immovable objects.
False
What are the two main types of property law?
Land law and personal property law
The concept that allows almost any obligations to be created in a contract is known as the ______.
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Which principle ensures that rights on property must be specific?
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Secondary rights can include the right to use property without full ownership.
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What is the Nemo Dat Rule concerned with?
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Publicity for immovable objects is realized through a ______.
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Match the following types of property rights with their definitions:
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Which of the following best describes the Prior Tempore Rule?
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A person with limited rights has the ability to transfer full ownership.
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What legal action does civil law provide to reclaim a property under vindication?
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Ownership can exist and be transferred only for __________ and __________.
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Match the following countries with their property transfer systems:
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In the Traditio System, what is required to transfer property rights?
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Under the Rule of Accessority, the security right is independent of the personal right.
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What happens to a security right if the personal right is transferred?
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In cases of a sale of immovables, the __________ serves only as proof that one is legally entitled to the right.
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Which statement is true regarding pledges of movable property?
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What is required for a causal traditio system to complete the transfer of ownership?
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In France, possession is synonymous with ownership.
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What is the principle that states ownership rights include the right to use and enjoy property?
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The ____ is the individual who creates a trust.
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Match the following legal concepts with their definitions:
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Which of the following is NOT a requirement for valid possession in French law?
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A person can acquire property rights through adverse possession in English law after 12 years.
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What may void a property transfer in an abstract transfer system?
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In German law, a possessory action for interference is regulated by the ____.
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Which of the following accurately describes a servitude in relation to property?
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Study Notes
Property Law
- Branch of private law that establishes rules governing property rights.
- Droit de suite → right follows the object.
Relative Rights
- Binding between parties involved.
- Personal rights → arise from contracts and bind two or more individuals.
Absolute Rights
- Binding against everyone.
- Right is always connected to something.
- Property rights → rights between an individual and an object, capable of legal enforcement.
Civil Law vs Common Law
- Civil law → unitary system; the right of ownership applies equally to movable and immovable objects.
- Common law → fragmented system; divided into land law and personal property law, accounting for movable and immovable objects.
Types of Property Rights
- Primary rights → right to use, control, possess, and alienate property; subject to limitations.
- Secondary rights → rights held by non-owners; examples include usufruct, servitudes, pledge, and mortgages.
Principle of Numerus Clausus
- Permits creation of various obligations within a contract.
- Example: landowners can establish numerous servitudes on their property.
- Limitation: Multiple usufructs on a single car are redundant.
Principle of Specificity
- Rights must be specific and tied to tangible goods or land.
- Rights can't be established on generic, interchangeable objects.
Principle of Publicity
- Rights affecting everyone must be publicly accessible.
- Immovable objects: Land registry serves as public record.
- Movable objects: Ownership is established through possession.
The Nemo Dat Rule
- One can only dispose of what they own.
- Only individuals holding full ownership can transfer full ownership.
- Individuals with limited rights can transfer those limited rights.
The Prior Tempore Rule
- Prior rights prevail over subsequent rights.
- Example: multiple hypothecs on land; the older hypothec holder receives payment first.
- Pledges (movable property) follow the same principle.
The Rule of Accessority
- Property security rights exist to secure personal rights (debt/loan).
- The security right remains connected to the personal right.
Specific Protection
- Legal enforcement mechanism for property rights.
- Civil law: right of ownership is protected through vindication.
- Common law: legal protection for land rights and conversion for movable objects.
Transfer to a Bank Account
- Does not transfer ownership.
- Creates an obligation between the bank, debtor, and client.
- Ownership is only transferable for banknotes and coins.
Transferring Property Rights
- Germany: ownership transfer requires agreement between parties before a notary public and subsequent registration.
- England: purchaser investigates the vendor's title; deeds are recorded in a register.
- France: ownership transfer occurs through contractual agreement; registration serves as proof of legal entitlement.
Consensual System - France, Belgium, and England
- Ownership transfer results from agreement between parties through a valid contract of sale, even before delivery.
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England:
- Movable goods: ownership is transferred immediately upon contract conclusion for specific goods.
- Immovable goods: ownership is transferred at the time of contract conclusion, even if registration is pending.
Traditio System
- Transfer of property rights requires an act of transfer (either causal or abstract system).
- Transfer of direct possession: handing over the object or granting access.
When is it not Possession?
- This is not covered in the text. You'll need to refer to your resources for additional information.
Transfer of Ownership
- Traditio Systems distinguish between the obligation transaction and the delivery.
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Causal Transfer Systems depend on the validity of the contract; ownership reverts if the contract is invalid.
- Causal Consensual System does not require delivery.
- Causal Traditio System requires delivery.
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Abstract Transfer Systems validate the transfer even if the contract is invalid. Ownership does not automatically revert; the buyer must return the object to the seller to revert ownership.
- German law permits the transfer of ownership from a second party to a third party on an invalid contract.
- Exceptions apply to immovables, fraud, duress, or minority. Mistakes only affect the contract's validity, not the ownership transfer.
- Principle of Abstraction: The obligation to transfer possession does not establish ownership; it only grants the right to claim possession.
Possession
- Civil Law Systems allow acquiring ownership through possession (usucapio).
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French Law:
- Possession involves physical possession and the intent to possess.
- Detention does not equal possession and does not grant ownership.
- Valid possession requires uninterrupted, peaceful, visible, and clear possession.
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German Law:
- Legal protection for possessors.
- Direct Possession: Possessor holds and controls the object personally.
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Indirect Possession: Someone holds an object on behalf of another.
- Ends if the direct possessor loses control, rejects the indirect possessor's role, or if the indirect possessor loses the right to reclaim the property.
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French and German law: Presume that the possessor of movable objects is the owner.
- An owner can recover movable property interfered with through vindication.
Protection of Possession
- Property rights are safeguarded from interference by the European Convention on Human Rights (ECoHR).
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Two types of interference:
- Protection against dispossession of a property right.
- Protection against disturbance of the enjoyment of possession.
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French Law:
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Possessory Actions:
- Action for complaint: For disturbance or dispossession by a non-violent act.
- Denonciation de nouvel oeuvre: Against future interference resulting from construction work.
- Action for restoration: Covers loss of control by a violent act for the recovery of possession and restoration to the original condition.
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Possessory Protection:
- Possession is protected even if the possessor is not the owner.
- Only possession without flaws receives protection.
- For actions against interference, possession must be continuous and legal.
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Possessory Actions:
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German Law:
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Self-Help: Grants the possessor the right to defend their position.
- Besitzehr: Self-defense against actual force.
- Besitzkehr: The possessor can recover the object immediately after the interfering act.
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Possessory Actions:
- The BGB regulates judicial action for interference or disturbance.
- The interferer cannot claim ownership; the rightful owner must assert ownership through separate legal actions.
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Self-Help: Grants the possessor the right to defend their position.
Ownership
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Ownership Rights:
- Right to use, enjoy, alienate, and prevent interference by third parties.
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Remedies against Interference:
- Vindication: Seeking an order for the return of the object.
- Actio negatoria: Seeking an injunction against a third party restraining them from interfering with the object.
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Limitations on Ownership:
- Public law: Imposed by the state for specific services.
- Private law: Implements a standard of reasonableness on the owner, such as the right of passage and contractual limitations.
Co-Ownership
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Co-ownership: Shares represent the right to ownership.
- Each share entitles its holder to the entirety of ownership rights.
- Each co-owner has the right to use and enjoy the property.
- Can include servitudes and usufructs.
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Parties:
- Bound to each other through the community and must share the object.
- Each party may freely use the object as long as it does not affect or deprive others.
- Each party has the right to oblige others to contribute to maintenance.
- None may modify or sell the object without the consent of others.
- One party may transfer their share individually.
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Restrictions on exiting co-ownership:
- Parties agree to keep the ownership undivided.
- The property is practically or legally indivisible; it must be sold, and the proceeds divided among the co-owners.
Apartment Rights (Co-ownership)
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Concept:
- Co-ownership of common parts.
- Sole ownership of private parts for individual owners.
- Owner Rights: Unitary ownership of private parts and co-ownership of public parts.
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Co-owner Rights:
- No illegal or harmful activities.
- Preserve their flat.
- Consent to reparations.
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Quota:
- Each apartment owner holds a share of the common elements expressed as a percentage (can vary).
- Co-owners are obliged to contribute according to their quota for maintenance, burdens, and responsibilities.
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Dutch Law:
- Exclusive entitlement to a certain space.
- Co-ownership of common parts.
- The right to an exclusive part of a building is a right accessory to the share in the community, not ownership.
Protection of Ownership
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French Law:
- Protection through registration and vindication.
- Owners can claim damages for harm.
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Other Actions:
- Action en bornage: L andowners can request neighbors to set boundaries.
- Action confession: Servitude or usufruct holders can assert their rights.
- Action négatoire de servitude: Owners can ward off unjustified servitude claims.
- Abus de droit et trouble de voisinage: Neighbors have the right to claim compensation against interfering neighbors.
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German Law:
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Rei vindicatio: Owners can request the return of the object held by others without entitlement.
- The owner must prove their ownership; the holder must prove the right to possession.
- The possessor is not obligated to return the object if they have the right to possession.
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The German Civil Code:
- Allows owners to claim removal of interference if sufficiently linked to human behavior.
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Rei vindicatio: Owners can request the return of the object held by others without entitlement.
Non Domino Acquisition
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Concept:
- Third-party acquisition of property from someone unauthorized (civil law) or lacking a better title (common law).
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Requirements for Protection:
- Civil Law: Third parties must act in good faith.
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Common Law:
- Third parties must act in good faith, have given something of value in exchange, and have been unaware of someone else having a better legal claim.
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Movable Property (Spanish Law):
- Possession in good faith equals having a title.
- If the original owner lost or was deprived, they can reclaim the property.
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Immovable Property (Spanish Law):
- Third-party acquirers are protected if:
- They act in good faith.
- They acquire the property against payment (consideration).
- The transferor is listed in the property register as the owner.
- The acquirer registers the new acquisition in the land registry.
- Even if the title is later annulled, the acquisition remains valid.
- Third-party acquirers are protected if:
Common Law
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English Law: No distinction between ownership and possession.
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Land:
- Specific action for recovery.
- Dispossession: Can claim damages.
- Trespass to land: Can claim damages, file an action or injunction.
- Nuisance: Can claim damages, injunction, and self-help (direct interference only).
- Goods: Recovery can also be attributed as a tort law remedy.
- Protected by tort law: Courts consider who has the best title to possess.
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Land:
Protection of Goods (Property Torts)
- Tort of Negligence: Entitlement to compensation for a breach in the duty of care.
- Tort of Conversion: One who obtains another's goods and disposes of them for their own benefit is guilty (deliberate act required).
- Trespass: Direct physical interference with another's good. No material damage is required; the right to sue lies with the possessor.
Remedies
- Awarding damages: Can oblige a tortfeasor to pay damages.
- Right to claim an injunction: Discretionary by the court.
- Negative injunction: Right to claim that the defendant refrains from future breaches.
- Mandatory injunction: Right to force the defendant to undo the effects of past breaches.
- Interlocutory injunction: Provisional relief until the hearing of the case.
Common Law - Trust
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Trust: One holds a right on behalf of another for a specific purpose.
- Arises from a declaration by a right holder with the intention to create a trust.
- Settlor: Creator of the trust.
- Trustee: Person holding the right. They have duties and powers (legal owner).
- Beneficiary: The person for whom the right is held (equitable owner).
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Characteristics:
- A settlor places property in a trust to provide for their family after death.
- The trustee can be a professional, family member, or someone with experience in money management.
- Division of ownership between legal and equitable.
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Fiduciary duty:
- The trustee's duty to the beneficiary to exercise their right in a way that benefits them.
- Vesting a right in a person on trust does not alter the nature of the right or change the identity of the person exercising it.
- Legal protection: The beneficiary's equitable ownership is protected. If the trustee fails to exercise their responsibilities, they will be liable to a monetary remedy in favor of the beneficiary.
- Equity courts enforce equitable ownership, common law courts enforce ownership: The remedy originates in the jurisdiction of equity.
Acquisition of Property
- Derivative acquisition: Receiving a right previously belonging to someone else (buying a car).
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Original acquisition: Acquisition of a new right that originates with the new owner.
- Examples: Accession, commingling, and specification.
Acquisition by Prescription (Usucapio)
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Acquisitive Prescription: Gaining or losing property rights through the passage of time and continuous possession.
- Depends on good faith and title.
- English Law: Adverse possession. Allows a person to acquire ownership of land through open, continuous, and adverse possession against the owner's interests for a specific period (usually 12 years).
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Extinctive Prescription: Loss of rights due to a lack of action within a specific timeframe.
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English Law: Principle of limitation of actions.
- Strong effect: A person no longer has the right or can take action after a specific period.
- Weak effect: A person still holds the right but cannot take action or defend it.
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English Law: Principle of limitation of actions.
Acquisition of Ownership by Acquisitive Prescription
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French Law:
- Acquisitive Prescription: Allows for the acquisition of a thing through possession without demonstrating a title or having bad faith used against them.
- Applies primarily to acquiring small lands due to unclear borders between neighboring properties.
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Effect of Ownership Rights:
- Extinctive prescription does not apply to ownership.
- If requirements for acquisitive prescription are met, the possessor can become the owner, causing the original owner to lose their right.
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Prescription Periods:
- After 30 years, one can obtain ownership or any right even if it began in bad faith.
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The prescription period reduces to 10 years if the possessor:
- Is acting in good faith.
- Acquired possession on valid legal grounds (sale or servitude agreement).
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Permission and Detention:
- Detainer: If the possessor has permission to use the land, acquisitive prescription does not apply.
- Interversion/Inversion: A change from detention to possession. Occurs when the owner is aware of the change. The prescription period begins at this point.
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Succession of Possession:
- The possessor can add the duration of their predecessor's possession to their own.
- Successors can be universal (inherits as an heir) or singular (acquires as a buyer).
- Continuous use by different possessors does not guarantee succession of possession without transfer.
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German Law:
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Land law: Cannot be used to claim ownership against registered owners in the public land register.
- Requirements: Registered as the owner or holder for at least 30 years.
- Movables: The possessor must hold the property for personal use, act in good faith, and have possessed the item for at least 10 years.
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Land law: Cannot be used to claim ownership against registered owners in the public land register.
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English Law:
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Prescription: Applies to acquiring property rights such as:
- Easement: Right of way over someone else's land.
- Profits a prendre: Right to take natural resources off of someone else's land.
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Adverse Possession: Acquiring full ownership of land through long-term possession.
- Fee simple estate: Full ownership of land without a fixed duration.
- Leasehold estate: Temporary right to hold land.
- After 10 years of possession, one can apply to be registered as the legal owner (owner will be notified of the application).
- If opposed: The application is rejected. Can reapply after two years if the owner doesn't take action to reclaim the property.
- If not opposed: Registered as the legal owner.
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Prescription: Applies to acquiring property rights such as:
Acquisition of Servitude by Acquisitive Prescription
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French Law:
- Concept: Servitudes (rights over someone else's land) can be acquired through acquisitive prescription after 30 years. Same conditions apply as ownership: peaceful, public, and continuous possession.
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Special Considerations:
- The right must be permanent to be acquired (a right of way may not meet permanence requirements as it is noncontinuous).
- Servitudes involving physical structures in restricted zones can lead to acquisitive prescription if they have been in place for a sufficiently long time.
- Possession of a servitude by a co-owner is ambiguous and cannot lead to prescription.
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Right of Way:
- (Enclave in French law) An owner whose land is landlocked can claim the right of way over a neighboring land but must pay compensation for any damages.
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German Law:
- Right of way or presence of windows cannot be acquired by prescription.
- Disputes over the right of way or view are resolved through extinctive prescription: The right to bring a claim may expire after a specified time.
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English Law:
- Only easements and profits a prendre can be acquired through prescription.
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For prescription to apply, the use of the servitude must meet specific conditions:
- The usage must be without force, concealment, or permission.
- Right of way is considered continuous by definition.
- Prescription applies when the right is exercised by the owner against another.
- Usage of the right against a holder does not give rise to prescription.
Accession of Movables to Land
- Concept: Occurs when a secondary object becomes part of a primary object.
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Land:
- Land is always the primary object.
- Structures built on land are secondary (attachments to the land).
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Value:
- When merged, the law ensures both objects are preserved and not destroyed by separation.
- Third Parties: When inspecting a property, they should understand which objects are included with the land.
- Status: Attachment of a movable to land changes its status to immovable.
- Original Acquisition: The owner acquires ownership of the attached movable through accession. The owner has full ownership of the land and the object.
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Right of Removal:
- Allows tenants or others to remove the object attached to land.
- First form (French law): The attachment never becomes part of the land, and the tenant retains ownership.
- Second form (English law): The object accedes to the land, but the tenant retains the right to remove it.
- Allows tenants or others to remove the object attached to land.
German Law
- Essential Components: Include movables that become part of the land through accession (buildings or crops).
- Conditions for Accession: Accession occurs when the components cannot be separated without causing damage or altering the object's nature.
English Law
- Tenant Fixtures: Items added by tenants to the land and may be removed at the end of the lease, even if they became part of the land through accession.
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Criteria:
- Physical Criterion: If removal would cause damage to the attachment or the land, including objects attached by screws or bolts.
- Purpose of Annexation: Intention behind attaching the object determines whether it accedes to the land.
French Law
- Physical Criterion: The object is attached to the land and cannot be removed without damages.
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Incompleteness: Accession may occur, even if removal does not cause damages.
- Things necessary for the building to be considered "complete" are deemed immovable, even if easily removed.
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Lease:
- During lease: The tenant retains ownership.
- After lease: The landowner may acquire ownership unless an agreement states otherwise.
Accession of Movables to Movables
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German Law:
- Accession only occurs with essential components.
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Principle Object:
- When two movables are combined, one can be essential parts, and the other is accessory.
- The accessory part's ownership follows the essential parts.
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Determining Ownership:
- Whether an object is considered primary depends on the nature of the objects and their relationship.
- If neither object can be clearly identified as primary, co-ownership of the combined object may result.
Commingling
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Dutch Law:
- Genuine Commingling (Confusio): When different quantities of items are mixed into a single bulk, they become one thing.
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Description
Test your knowledge on key concepts of property law, including types, rights, and transfer systems. This quiz covers essential principles like 'Droit de suite' and the 'Nemo Dat Rule'. See how well you understand the intricacies of property-related legal terms and concepts.
