Property Law Revision PDF

[Property law revision ] [Property rights ] Effects Egra Omnes -- property right with effect against everyone Droite de suite -- "right to follow" the right follows the object, regardless of the subjects Primary property rights = ownership (possession, transfer, use and enjoy, take fruits) seco...

[Property law revision ] [Property rights ] Effects Egra Omnes -- property right with effect against everyone Droite de suite -- "right to follow" the right follows the object, regardless of the subjects Primary property rights = ownership (possession, transfer, use and enjoy, take fruits) secondary property rights = to use + security rights two types 1. To use -\> usufruct, servitude, use, habitation 2. Security rights -\> pledge, hypothec Unitary v fragmented system **Unitary system** = civil law, the right of ownership is the same right of ownership regardless of whether it is held on immovable or moveable objects **Fragmented system** = common law, there is 2 types of property law which is for land and not land. This division essentially follows the distinction between movables and immovables [Principles of property law ] 1. Principle of numerus clauses -- types of property rights that can be created, property can only be held and conveyed in a small number of forms (opposite of freedom of form in contracts) 2. The principle of specificity -- a property right is a right on a good or on land, it should be clear in respect of precisely which good or land the property right is created 3. Principle of publicity -- if property rights potentially affect everyone, it is important that everyone can know who has which property right 4. The nemo dat rule -- nobody can transfer a property right that he did not have himself in the first place 5. The prior tempore rule -- older property rights trump newer rights 6. Specific protection -- Property rights enjoy a special form of protection by the law 7. The rule of accessority -- unbreakable link between a property security right and the claim for which the right was created [Transfer of property rights] The two main ways in which the transfer of property rights **Consensual system** -- they become the owner when the contract of sale is agreed upon, without delivery of possession being needed (English law) (transfer of the property right when contract singed) - English law does not have a unified transfer system (delivery, sale deed) - Delivery is not necessary where the transfer is based on sale, or the transfer takes place by deed - A gift is a transfer of movables outside the scope of sale - A gift requires delivery or a deed as an oral gift is invalid **Tradition system** -- besides a contract of sale, a special act to transfer the property right (transfer of the property right when you receive it) [Transfer of possession ] **Transfer of direct possession** (traditio vera and tradition symbolica) - Handing over the object (vera) - Giving the transferee access to the thing (symbolica) - The keys are the way of coming to the possession or to make use of the thing **No transfer of direct possession** (tradition ficta) - Tradition brevi manu -- someone who initially possessed a lessee turns to possess as an owner - Constitutum pssessorium -- someone who initially possessed as an owner turns to possess as a lessee [Abstract and causal transfer systems -- transfer of ownership ] **Casual transfer systems** -- the validity of the transfer depends on a valid causa traditionis (valid underlying contract) - Ownership cannot pass under a void contract - Where the contract is void, the transferee will, not be able to transfer the thing to a second transferee as he is not the object's owner Causal consensual systems -- if the contract itself transfers the ownership, it follows that the contract must be valid to pass ownership, as a void contract cannot pass ownership (French law) Causal tradition systems -- legal systems where the delivery is needed for the transfer but where the transfers validity depends on a valid underlying contract (Dutch law) **Abstract transfer systems** (German law) -- the transfer can be valid even though the underlying transaction is flawed - Germany thought that this system would limit the consequences of defects - Even though the underlying contract is invalid, the transfer passes the ownership to the first transferee and thus enables him to transfer ownership of the object to a third party [Possession ] Presumptions - possession of an object indicates the existence of a property right and thus makes it public - civil law systems = possession serves important functions - common law opinion that possessory protection relates only to immovable objects Protection - property rights enjoy comprehensive protection against interference by the state and the obligation of the state to guarantee the existence and protection of private ownership - possessory protection serves to prevent unlawful and violent behaviour - in English law, there is no ownership, the protection of property rights means primarily the protection of possession **possession general** +-----------------------------------+-----------------------------------+ | France | Germany | +===================================+===================================+ | Possession requires 2 factors: | Possession understood in a broad | | | sense, types of possession depend | | 1. the actual control of the | on the intention of the possessor | | object | | | | Direct possession: holds | | 2. the will to hold the object | possession for himself and has | | as an owner or as the holder | actual control | | of a limited proprietary | | | right | Indirect possession: a person | | | holds an object for another | | | person | +-----------------------------------+-----------------------------------+ **Possession: protection** +-----------------------------------+-----------------------------------+ | France | Germany | +===================================+===================================+ | 3 types of possessory actions | Self-help- actual interference | | | entitles the possessor to self | | 1. action for a complainte -- in | help | | cases of actual disturbance | | | or dispossession by a | 2 types of self help | | non-violent act | | | | 1. specific form of self defence | | 2. denunciation de nourvel ourve | against actual force | | -- can be claimed against | | | imminent future interference | 2. the possessor to recover the | | caused by construction works | object from the dispossessor | | | immediately after the | | 3. the action for restoration -- | interfering act | | loss of actual control by a | | | violent act of the | self-help must be proportionate | | dispossessor | | | | possessory actions -- also | | the possessor who is also the | regulates the protection of the | | owner of the property or the | direct and indirect possessor | | holder of the limited property | against dispossession and | | right, can choose between | disturbance of possession. The | | possessory protection and | rightful owner must assert his | | vindication of the object | ownership by a separate legal | | | action. | +-----------------------------------+-----------------------------------+ [Ownership ] +-----------------------------------------------------------------------+ | **Civil law** | +=======================================================================+ | Doctrinal concept of ownership | | | | The right of ownership is: | | | | 1. the most extensive property right knows to civil law systems | | | | 2. the most comprehensive right a person can have over an object | | | | the right of ownership only stops where the rights of another begin | | | | the rights of the owner can be seen from 2 different perspectives: | | | | 1. relationship of the owner towards the object owned | | | | 2. rights of the owner against third parties | | | | 2 ways that the owner can be limited in his rights over an object | | | | 1. through public law -\> imposed by the state, usually to provide | | for certain services | | | | 2. through private law -\> impose a standard of reasonableness on | | the owner | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **Common law** | +=======================================================================+ | No clear distinction between ownership and possession. The protection | | of property rights is dealt with under the notion of the protection | | of possession | | | | [Property torts]: English law deals with the protection | | of property interests mainly by tort law, which provides for several | | specific properties related torts | | | | [Tort of negligence]: damage to property, both land and | | moveable property, this tort is also available when damage is caused | | by the breach of a duty of care | | | | - the primary remedy for the protection of property rights is | | damages but in property torts, any damage may oblige the | | tortfeasor to pay a certain sum of money for the violation of the | | right per se (nominal damages) | | | | - the right to claim an injunction in English law also part of tort | | law | | | | **land** | | | | [dispossession]: the holder of a title to land which | | enables exclusive possession has the right to recover possession from | | a person who entered the land without his consent. The dispossessed | | title holder may either retake the land himself by way of self or | | obtain an order from the court that possession of the land be given | | up to him | | | | [trespass to land]: interference other than dispossession | | allows for a remedy in tort. The torts of trespass to land and | | nuisance may apply. Available when the defendant has entered the land | | without consent of the titleholder and leads to an entitlement to | | claim for damages. | | | | [nuisance]: can be invoked in case of indirect | | interference with land or the enjoyment of land when pollutants cause | | a disturbance to the use and enjoyment of land | | | | **goods** | | | | [trespass]: requires a direct physical interference with | | the good of another. As the tort is directed at the invasion of | | possession, the right to sue lies with the person who is in | | possession of the good at the time of the interference. E.G., killing | | another's animal, removing a car from a garage. Material damage does | | not have to occur to claim this | | | | [conversion]: any person who, however, innocently obtains | | possession of the goods of a person who has been fraudulently | | deprived of them, disposes of those goods for his own benefit, or for | | that of another person, is guilty of conversion. | +-----------------------------------------------------------------------+ Ownership: protection +-----------------------------------+-----------------------------------+ | France | Germany | +===================================+===================================+ | As registration in the French | Rei vindication -- the owner of | | land register has no constitutive | an object has the right to | | effect and does not presume or | request the return of the object | | prove ownership, the crucial | from any person who holds the | | issue in French law regarding the | object without sufficient | | rei vindication, which covers | entitlement. This claim extends | | movable and immovable property, | equally to movable and immovable | | is the proof of ownership. It | property. The owner must proof | | suffices for the claimant to show | his ownership and that the | | that he has a better entitlement | defendant has direct or indirect | | to the object than the defendant | possession of the object. It is | | | then up to the possessor to prove | | The owner is also entitled to | his right to possession. | | claim damages for harm caused to | | | the object based on general tort | | | law | | +-----------------------------------+-----------------------------------+ [Protection of third parties ] **Protection of third parties who acquire non domino** - when someone buys something from another person who either couldn't sell it legally or when someone else had a stronger claim to it, there are situations where the buyer (a third party) can keep the item. This is to protect innocent buyers - to be protected as a third party, you generally need to meet certain conditions. In civil law, you must be acting in good faith when you buy. In common law, you must be a genuine buyer who paid for it without know about any legal issues **Co ownership** Each share you own gives you complete ownership rights When you co-own something with other, you all have the right to use and enjoy it. However, as you are all connected through this shared ownership you must be considerate: - you can use it but not in a way that hurts the other co-owner or takes away their ability to use it - everyone must chip in for maintenance - you cannot change the shared thing without everyone's consent - if you want to sell, everyone must agree - at any time, you can ask for the shared thing to be divided among the co-owners. The concept of co ownership is constructed using a general concept of community or co-entitlement. The co-entitlement concept is not only used for purposes of co-ownership but also to share different types of entitlement This can include personal and property rights such as the use of usufruct or servitude **Apartment rights** Civil law systems -\> enable parties to divide a building in such a way that several persons can each have their own apartment. The co-owners: 1. are obliged to make regulation defining their relation 2. are members of a special community and form an association of co-owners. The building includes common areas and private parts. The co-ownership of apartments combines a right of co-ownership of common parts with sole ownership of private parts. The owner has: 1. normal unitary ownership on her exclusive private part of a building 2. forced co-ownership of the common parts of the building (hallways, stairs etc) 3. each of the apartment owners holds a share or quota in the common elements of the building the sole ownership of private parts relates to the right of co-ownership of common parts. Therefore, co-owners: 1. must refrain from carrying out activities in the flat or premises that may be harmful to the building or contrary to the law 2. are also under a duty to preserve their flat in a good state 3. must consent that their private elements are subject to reparations imposed by a building service [Creation of property rights] **Original and derivative acquisition of property** Original = acquisition of a right that did not previously exist originates in the hands of the new owner Derivative = one receives a right that previously belonged to someone else Acquisitive prescription (usucapio) English law -\> only about the acquisition of easement and profits, and adverse possession is about the acquisition of a freehold or leasehold estate in land The loss of a right or action through lapse of time (extinctive prescription) -- extinction of a right **Acquisition of Ownership by prescription** +-----------------------+-----------------------+-----------------------+ | France | Germany | England | +=======================+=======================+=======================+ | A way to get | You can't use | Prescription is a way | | something or a right | prescription to claim | to gain certain | | by having it and | ownership of public | property rights, like | | holding it for a long | land listed in | easements or the | | time, even if your | official record. To | right to take things | | font has a legal | use it to claim | from someone else\'s | | title to it. If you | ownership of public | land (like oil, | | have been holding | land listed in | timber, or minerals). | | onto something for a | official records. To | For owning the whole | | long time (30 years) | use prescription to | land (fee simple) or | | and you haven't been | acquire land or | a temporary lease, we | | kicked out, you can | property rights, you | use the concept of | | become the owner, | need to be listed in | \"adverse | | even if you didn't | the land register as | possession,\" which | | start with good | the owner or holder | has similar | | intentions. But if | of the right for at | requirements. In | | you did start with | least 30 years and | cases of registered | | good intentions, it | have had possession | land, if someone has | | only takes 10 years | during this time | occupied a property | | | | without permission | | Special requirements | Ownership of movable | for ten years and | | for the 10 years | property can be | applies to be the | | prescription period: | acquired by way of | owner, the current | | | prescription it | owner is told about | | 1. good faith | demands possession | it. If no one | | | for one's benefit, | objects, the person | | 2. a legal ground -- | good faith, and a | in possession becomes | | important that | prescription of 10 | the new owner. If | | there is a legal | years | there is an | | act that should | | objection, the | | have given you | | application is | | ownership if the | | denied. However, if | | rightful owner | | the squatter keeps | | had actually | | occupying for two | | owned it | | more years after | | | | being denied, they | | | | can apply again and | | | | become the owner, | | | | even if the | | | | registered owner | | | | disagrees. This is | | | | all based on the Land | | | | Registration Act | | | | 2002. | +-----------------------+-----------------------+-----------------------+ **Acquisition of servitude by prescription** France Germany England --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------------------------------------------------------------------------- The infringement of mandatory rules on neighbour law gives the victim a right of action to make an end to the infringement. However, after a certain time, the infringement might become legalised by prescription. The mere exercise of a servitude of way or the mere presence of windows or trees in the forbidden zone can never lead to the acquisition of a right of servitude. Many infringements of neighbour law are solved by extinctive prescription of the right of action to stop the infringement Only easements and profits a prende can be acquired by prescription. They require the usage as a right (usage without force, without concealment and without permission) **Accession of movables to land** -- When a person makes improvements or adds something to a piece of property, these improvements can become part of the property, and the ownership of these additions is determined by the rules of accession. +-----------------------+-----------------------+-----------------------+ | France | Germany | England | +=======================+=======================+=======================+ | In the case of | Attachments that | "Tenant fixtures" | | accession to land the | become an integral | denotes additions | | tradition | part of another thing | attached to the land | | interpretation of the | by way of accession | or building by a | | criterion of | are called essential | tenant and which the | | incorporation is the | components | tenant may remove | | attachment of a thing | | during or at the end | | to immovable property | | of the lease, even | | in such a way that it | | though they have | | cannot be removed | | become part of the | | without causing | | land because of | | damage | | accession | | | | | | Accession can also | | | | take place even if | | | | removal would not | | | | cause damage | | | +-----------------------+-----------------------+-----------------------+ **Commingling -** the mixing of funds or assets that belong to different parties, often in a way that makes it challenging to distinguish the separate ownership of those funds or assets. +-----------------------------------+-----------------------------------+ | Dutch law | German law | +===================================+===================================+ | Genuine commingling or confusio | Co-ownership as a solution can be | | -- the oil in the tank or grain | awarded only if there is a | | in the silo is seen as one thing. | specific bulk in which the goods | | The different owners of the | of different owners have been | | quantities mixed will become | mixed. If no specific bulk can be | | co-owners of the entire bulk | identified, it cannot be | | | ascertained which specific goods | | Quasi-commingling or conmixito -- | are held in co-ownership. The | | in the case of steel plates, | principle of specificity requires | | these are still seen as separate | that it be known which exact | | objects. Co-ownership seems | things are the objects of the | | impossible and the holder of the | property right. | | things should be regarded as the | | | owner of all objects | | +-----------------------------------+-----------------------------------+ **Specificatio** -- matericals are used to make a new thing with an identity different from the identity of the materials used. The things used to disappear and with them, the right of ownership falls away and a new right of ownership originates.