Property Law: Transfer of Rights

The Rule of Accessority

• An unbreakable link exists between a property security right and the claim for which the right was created.

Transfer of Property Rights

• Consensual Systems

  • Ownership is established upon agreement of the contract of sale, without delivery of possession being required. (e.g., English Law)
  • Delivery is not necessary when the transfer is based on sale or a deed.
  • A gift is a transfer of movables outside the scope of sale, necessitating delivery or a deed. Oral gifts are invalid.

• Tradition Systems

  • Transfer of property rights requires a contract of sale and a special act to transfer the property right (e.g., the act of receiving the property).

Transfer of Possession

• Transfer of Direct Possession
  • Traditio Vera: Handing over the object.
  • Tradition Symbolica: Giving the transferee access to the thing.
  • Keys are a common example of providing access and possession.
• No Transfer of Direct Possession
  • Traditio Brevi Manu: Someone who initially possessed a lessee turns to possess as an owner.
  • Constitutum Possessorium: Someone who initially possessed as an owner turns to possess as a lessee.

Abstract and Causal Transfer Systems

• Casual Transfer Systems

  • The validity of a transfer depends on a valid underlying contract. A void contract prevents ownership transfer
  • A transferee under a void contract cannot transfer ownership to a second party because the transferee is not the object's owner.
  • Causal Consensual Systems: Transfer of ownership occurs through the contract itself, which must be valid to transfer ownership. (e.g., French Law)
  • Causal Tradition Systems: Delivery is required for transfer, but the transfer's validity relies on a valid contract (e.g., Dutch Law)

• Abstract Transfer Systems

  • The transfer can be valid even if the underlying transaction is flawed. (e.g., German Law)
  • This system aims to minimize the consequences of defects.
  • If the underlying contract is invalid, ownership still passes to the initial transferee, enabling them to transfer ownership to a third party.

Possession

Presumptions

• Possession of an object implies the existence of a property right, making the right public.
• Civil law systems view possession as serving important functions.
• Common law opinion states that possessory protection applies primarily to immovable objects.

Protection

• Property rights are protected comprehensively against interference by the state, with an obligation for the state to guarantee the existence and protection of private ownership.
• Possessory protection aims to prevent unlawful and violent behavior.
• In English Law, there is no concept of 'ownership', and the protection of property rights primarily involves the protection of possession.

Possession General

• France: Possession requires two factors: Public law (imposed by the state for specific services) and Private law (imposing a standard of reasonableness on the owner).
• Germany: Possession is understood broadly, with various types of possession depending on the circumstances.
• Common Law: There is no clear distinction between ownership and possession, with the protection of property rights addressed under the notion of possession protection.

Common Law

• Property torts: English law primarily focuses on the protection of property interests through tort law, offering various property-related torts.
  • Tort of Negligence: Damage to property (land and movables), including instances where damage is caused by a breach of a duty of care.
  • Primary remedy for protecting property rights: Damages, including nominal damages for the violation of the right itself.
  • Right to Injunction: Also part of English tort law in relation to property.

Land

• Dispossession: Title holders of land with exclusive possession have the right to recover possession from individuals who accessed the land without consent.
  • Registered Land: Individuals occupying land for ten years without permission who apply to be the owner must notify the current owner. If no objection is raised, the person in possession becomes the new owner. If there is an objection, the application is denied. However, if the squatter continues occupying for two additional years after being denied, they can reapply and become the owner, even with the registered owner's disagreement. This process is based on the Land Registration Act 2002.
  • Unregistered Land: If someone occupies land with good intentions for at least 30 years and has had possession during this time, they can claim ownership.
    • Special Requirements for Prescription:
      • Good faith: Possession must be for one's benefit.
      • Legal ground: A legal act that should have given ownership if the rightful owner had actually owned it.

Acquisition of Servitude by Prescription

• France: The violation of mandatory rules on neighbor law grants the victim the right to stop the infringement. Extinctive prescription can legalize the infringement after a period of time. However, the mere exercise of a servitude of way or the presence of windows or trees in a forbidden zone cannot lead to acquiring a servitude right. Many infringements of neighbor law are resolved through extinctive prescription of the right of action to stop the infringement.
• Germany: Only easements and profits a prendre can be acquired by prescription. They require usage as a right (usage without force, without concealment, and without permission).
• England: No specific information provided in the text.

Accession of Movables to Land

• France: Accession to land, the tradition interpretation of incorporation criteria involves the attachment of a thing to immovable property in a way that cannot be removed without causing damage. This applies even if removal would not cause damage.
• Germany: Essential components/attachments that become an integral part of another thing through accession are known as essential components.
• England: "Tenant fixtures" denote additions attached to land or buildings by a tenant that the tenant can remove during or at the end of the lease. These fixtures may become part of the land due to accession, but still, remain removable.

Commingling

• Dutch Law: Genuine commingling ("confusio") occurs when the oil in the tank or grain in the silo is seen as one thing. The different owners of the mixed quantities become co-owners.
• German Law: Co-ownership is possible only if there is a specific bulk in which the goods of different owners have been mixed.

Property Rights

• Effects Egra Omnes: A property right that affects everyone.
• Droite de suite: "Right to follow" the right follows the object, no matter who owns it.
• Primary Property Rights: Include ownership, possession, transfer, use and enjoyment, and taking fruits of the property.
• Secondary Property Rights: Include rights to use (usufruct, servitude, use, habitation) and security rights (pledge, hypothec).

Unitary vs. Fragmented Systems

• Unitary System: The right to ownership is the same regardless of whether the object is movable or immovable (civil law).
• Fragmented System: There are two different legal systems for property: one for land and one for not land (common law).

Principles of Property Law

• Principle of Numerus Clauses: Only a limited number of types of property rights can be established.
• Principle of Specificity: It must be clear which specific good or land the property right relates to.
• Principle of Publicity: Everyone should be able to know who holds which property rights.
• Nemo Dat Rule: No one can transfer a property right they don't own.
• Prior Tempore Rule: Older property rights are superior to newer ones.
• Specific Protection: Property rights have special legal protection.
• Rule of Accessority: There is an unbreakable link between a property security right and the claim for which it was created.

Transfer of Property Rights

• Consensual System: Ownership transfers when the contract of sale is agreed upon, regardless of actual delivery (English law).
• Tradition System: Ownership transfers when the object is actually delivered, in addition to a contract of sale.

Transfer of Possession

• Direct Possession: Includes the handover of the object (traditio vera) or giving the transferee access to the object (tradition symbolica).
• No Transfer of Direct Possession: Includes someone who was initially a lessee becoming an owner (tradition brevi manu) and someone who was initially an owner becoming a lessee (constitutum pssessorium).

Abstract and Causal Systems for Transfer of Ownership

• Casual Transfer Systems: The transfer's validity depends on a valid underlying contract (causa traditionis).
• Causal Consensual Systems: Ownership transfer through contract requires the contract to be valid (French law).
• Causal Tradition Systems: Requires delivery for transfer, but also a valid contract (Dutch law).
• Abstract Transfer Systems: Transfer can be valid even if the underlying contract is flawed (German law).

Possession

• Presumptions: Possessing an object is usually assumed to indicate a property right. Civil law systems emphasize the importance of possession.
• Protection: Property rights are protected from interference by the state and the state is obligated to guarantee their existence. Possession protection prevents unlawful and violent behavior.

Ownership

• Civil Law:

  • Ownership is the most extensive right in civil law systems.
  • It covers a person's comprehensive rights over an object.
  • Limits on ownership include the rights of others and limitations on usage.
  • Rights are considered in relation to the object and in relation to third parties.
  • In case of dispossession, the rightful owner can retake the land themselves or obtain a court order for restitution.

• Common Law:

  • Trespass and nuisance are used to protect property rights.
  • Trespass concerns direct interference with the object, while nuisance addresses indirect interference.
  • Trespass requires direct physical interference while conversion concerns possession obtained fraudulently.

Ownership Protection

• France:
  • Registration in the land register has no legal effect on proving ownership.
  • The claimant needs to prove a stronger claim to the object than the defendant.
  • The owner can claim damages for harm to the object based on general tort law.
• Germany:
  • The owner has the right to demand the return of the object from anyone possessing it without right.
  • The possessor must prove their right to possession.

Protection of Third Parties

• Protection of Third Parties who Acquire Non Domino: Buyers who purchase goods from someone who couldn't legally sell them might be able to keep the item.
• Conditions for Protection: Civil law requires good faith, while common law requires the buyer to be genuine and to have paid for the item without knowledge of legal issues.

Co-ownership

• Each share in co-ownership gives its owner full ownership rights.
• All co-owners share the right to use and enjoy the property.

This quiz explores the concepts of accessory rights and the transfer of property rights under different legal systems. It delves into consensual and tradition systems, discussing the importance of delivery and possession in property transactions. Test your understanding of these key principles in property law.