Property Rights Overview

Property Rights

• Effects Egra Omnes - A property right is effective against everyone.
• Droite de Suite - The "right to follow" - this right follows the object it pertains to, regardless of the owner.
• Primary property rights are the right to own.
• This includes the rights to possess, transfer, use, and enjoy, and the right to take fruits.
• Secondary property rights are rights related to the use of property and security rights.
• Types of Secondary Property Rights:
  • To Use: Usufruct, servitude, rights of use, and habitation
  • Security Rights: Pledge and hypothec

Unitary vs Fragmented System

• Unitary system is found in civil law systems. Ownership is the same regardless of whether the property is land or goods.
• In fragmented systems, found in common law systems, different property law rules apply to land and goods.

Principles of Property Law

• Numerus Clausus Principle: Only specific types of property rights can be created.
• Specificity Principle: Property rights must clearly state the specific good or land being subject to the right.
• Publicity Principle: It is important that everyone knows who holds what property rights.
• Nemo Dat Principle: You cannot transfer a property right you do not own.
• Prior Tempore Rule: Older property rights take precedence over newer ones.
• Specific Protection: Property rights are provided with special protection by the law.
• Accessority Rule: There is a strong link between a property right and a secured claim.

Transfer of Property Rights

• Consensual system: Ownership is transferred upon agreement, without delivery of possession required.
• Tradition system: Besides a contract, a special act is needed to transfer ownership (e.g., delivery).

Transfer of Possession

• Transfer of Direct Possession:
  • Traditio Vera: The object is physically handed over.
  • Tradition Symbolica: Transferee is given access to the thing (e.g., keys).
• No Transfer of Direct Possession:
  • Tradition Brevi Manu: A lessee becomes the owner without physical transfer.
  • Constitutum Possessorium: An owner becomes a lessee without physical transfer.

Abstract and Causal Transfer Systems

• Casual Transfer Systems: The transfer's validity depends on a legal cause (underlying contract).

  • Causal Consensual Systems: The validity of the contract determines ownership transfer.
  • Causal Tradition Systems: A valid underlying contract is needed for ownership transfer upon delivery.

• Abstract Transfer Systems: Transfer is valid even if the underlying transaction has flaws.

Possession

• Presumptions: Possession of an object generally indicates the existence of a property right.
• Protection: Property rights are protected against interference by the state, and the state is obligated to ensure their protection.

Possession in France

• Possession requires two factors:
  • The dispossessed title holder can either retake the land themselves or obtain a court order to reclaim the land.
  • Trespass to land: Interference with land (other than dispossession) allows for a remedy in tort.
  • Nuisance: Applies to situations where a disturbance to the use or enjoyment of land occurs.

Possession in Germany

• There are various types of possession.

Possession in English Law

• The law focuses on protecting possession.
• Trespass: Requires direct physical interference with another's good.
• Conversion: Obtaining possession of goods fraudulently deprived from another.

Co-Ownership

• Co-ownership describes a situation where multiple people have an equal right to a property.
• Shared ownership: Each co-owner must be considerate of the other owner's rights. This includes but is not limited to:
  • Using the property without infringing on the rights of the other owner.
  • Contributing to maintenance costs.
  • Obtaining consent before making changes to the shared property.
  • Agreement from all parties involved in case of sale.
  • The right to request a division of the property among the co-owners.

Apartment Rights

• Civil Law Systems: The law defines how individuals can divide a building into apartments and how those rights are regulated.

Adverse Possession (Squatter's Rights)

• England: If someone occupies a property without permission for 10 years, they can apply to be the owner.
• Registered Land: If the property is registered, the original owner is notified about the application. If no objection is made, the squatter becomes the new owner.
• Objection: If there is an objection, the squatter can keep occupying the property, and if they occupy it for another two years after the objection, they can reapply and become the owner.