Property Law Revision Notes PDF

Revision Notes Property Law - Rights Property law ○ Branch of private law that governs property rights (absolute rights) ○ Droit de suite → the right follows the object Relative Rights ○ Effects between the parties ○ Personal rights → arises f...

Revision Notes Property Law - Rights Property law ○ Branch of private law that governs property rights (absolute rights) ○ Droit de suite → the right follows the object Relative Rights ○ Effects between the parties ○ Personal rights → arises from contracts and bind 2 or more things Absolute Rights ○ Effects against anyone ○ Right always pertains to something ○ Property rights → rights between an individual and an object, enforceable CIVIL LAW COMMON LAW Unitary system Fragmented system The right of ownership is the same regardless 2 kinds of property law of whether it is held on immovable or movable Land law objects. Personal property law Division follows the distinction between immovable objects and movable objects Types of Property Rights Primary ○ Right to use, control, possess, and alienate property ○ Limitations → owner cannot do everything (ex. Change a monument without permission from gov) Secondary ○ Rights held by non-owners to have certain rights without full ownership ○ Secondary right to use → usufruct and servitude ○ Secondary security rights → pledge and mortgages Principle of Numerus Clausus Concept → persons can create almost any obligations they want in a contract Example ○ Owner of a land can create as many rights of servitudes as he wishes on his land ○ However it is pointless to create more than one usufruct on a car → limitation Principle of Specificity Concept  ○ Right created on goods/land should be specific ○ Mass objects cannot hold individual property rights if they are mixed with others Principle of Publicity Concept → If the property rights affect everyone, everyone must know who has which Immovable objects → Publicity is realised through a land registry Movable objects → publicity of ownership expressed as possession The Nemo Dat Rule Concept → you need competence to dispose of your property right Who can transfer the right? ○ Only a person with full ownership can transfer full ownership ○ A person with limited rights such as usufruct has the right to transfer those limited rights The Prior Tempore Rule Concept → when multiple rights or claims exist → older property rights > newer rights When there is more than one hypothec on a piece of land : ○ When the property is sold, the owner of the older hypothec gets paid first ○ Holder of the second hypothec will get paid after the first ○ Creditors with no property rights get paid last Pledges (movable property) → same concept ○ Security interest where elders take possession of personal property as security for obligations The Rule of Accessority Concept → property security right is created to secure a personal right such as a debt or loan ○ The existence of the security right relies on the existence of the personal right ○ If the personal right is transferred, so is the security right Specific Protection Concept → the duty that comes from a property right can be enforced legally Civil law → right of ownership is protected by vindication ○ Allows someone to reclaim their property if someone else has it Common law → land rights are enforceable, movables are under the tort of conversion ○ Tort of conversion → Choose between paying damages, returning the object or ending the interference with it Transfer to a Bank Account Does not amount to a transfer of ownership Forms an obligation between bank, debtor and client Ownership can exist and be transferred for banknotes and coins only Transferring Property Rights Transfer of Immovables Germany → acquisition/abandonment of ownership requires agreement between parties before a notary public + registration of the right England → Purchaser must investigate vendor’s title, deeds go in an registered system France ○ Ownership passes with contractual agreement ○ Registration serves only as proof that one is legally entitled to the right Consensual System - France, Belgium and England Concept → ownership of property is transferred simply by the agreement of the parties involved in a valid contract of sale even before the goods are delivered England ○ Movable goods specific goods → directly as contract is concluded unascertained goods → when both parties agree in the item ○ Immovables → property right is transferred between the parties upon conclusion of the contract unless registered Exceptions ○ Generic goods → Ownership transferred after identification and measure ○ Sale ex bulk → Ownership of a specific portion of a bulk requires appropriation but a share of the bulk can be transferred immediately ○ Unmanufactured goods →Transfers when goods are completed and deliverable Traditio System Concept → requires an act to transfer property right - can be causal or abstract system Transfer of direct possession → handing the object over or giving access to it When is it not possession? ○ When one holds the object for the owner → a lessee ○ Giving something to one who already has it ○ Ownership of immovables is done by a deed before a notary public Principle of separation ○ Traditio systems distinguish between the obligation transaction and the delivery Causal Transfer Systems Concept → validity of the transfer depends on the contract - ownership reverts if not Causal Consensual System → no delivery needed Causal Traditio System → delivery required Risks → no third party protection - must include safeguard provision if needed Abstract Transfer Systems Concept → transfer is valid even if contract is not - ownership does not automatically revert, but the buyer must return object to seller to revert it Germany → allows transfer of ownership from 2nd to a 3rd party on an invalid contract Mitigation/exception ○ For immovables the transfer is still tied to the validity of the contract ○ Fraud, duress or minority will void the contract and ownership transfer  ○ Mistakes only affect the validity of the contract, not ownership transfer Principle of abstraction → the obligation to transfer a possession does not make one an owner, but only gives the right to claim the possession Possession - Civil Law Systems You can get ownership from possession through usucapio France ○ Possession → physical possession and intent to possess ○ Detention ≠ possession, no ownership this way ○ Valid possession requirements Uninterrupted, Peaceful and visible, clear Germany → legally protected possessors ○ Direct possession → possessors holds and controls the object personally ○ Indirect possession → someone holds an object on another’s behalf 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 France and Germany → legal presumption that the possessor of movable objects = owner ○ If one interferes with the movable, owner can recover it through vindication Protection of Possession Property rights are protected from interference in the ECoHR 2 types of interference ○ Protection of a property right against dispossession ○ Protection against disturbance of the enjoyment of possession France Possessory Actions ○ Action for complaint → in case of disturbance or dispossession by a non violent act ○ Denonciation de nouvel oeuvre → Against future interference by construction work ○ Action for restoration → covers loss of control by a violent act of the dispossessed for the recovery of possession and restoration to the original condition Possessory protection ○ Possession is protected even if possessor is not the owner ○ Only possession without flaws is protected ○ For actions against interference, the possession must be continuous and legal Germany Self help ○ Concept → Grants the possessor the right to defend his position ○ Besitzehr → self defence against actual force ○ Besitzkehr → possessor can recover the object immediately after the interfering act Possessory actions ○ BGB regulates by way of judicial action for interference/disturbance ○ Interferer cannot claim to be the owner - the rightful owner must assert ownership through separate legal actions Ownership Ownership Rights ○ Right to use, enjoy, alienate and stop interference of 3rd parties Remedies against interference ○ Vindication → seeking an order for the return of the object ○ Actio negatoria → seeking an injunction against the 3rd party restraining them from interfering with the object Limitations ○ Public law → imposed by the state for certain services ○ Private law → imposed a standard of reasonableness on the owner (right of path, contract limitations..) Co-Ownership Co Ownership → Shares of the right to ownership ○ Each share entitles its holder to the whole right of ownership ○ Each have the right to use and enjoy ○ Can include servitudes and usufructs Parties → bound to each other through the community and must share the object ○ Each may freely use the object as long as they do not affect or deprive the other ○ Each has the right to oblige the other to contribute to the maintenance ○ None may modify or sell the object without the other’s consent ○ One may transfer their share individually Cannot exit co-ownership if ○ Agreed 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 Concept → co ownership of common parts, sole ownership of private parts (for owner) Owner rights -> unitary ownership of private parts and co ownership of public ones Co Owner rights → no illegal/harmful activities, preserve their flat, consent to reparations Quota ○ Each apartment owner holds a share of the common elements of the building, expressed as a % → can vary ○ Co-owners are obliged to contribute according to their quota for maintenance, burdens and responsibilities Dutch law ○ Exclusive entitlement to a certain space and co ownership of common parts ○ The right to the exclusive part of a building is a right accessory to the share in the community, not one of ownership Protection of Ownership France Protections  ○ Registration and vindication are forms of protection ○ The owner can claim damages for harm Other Actions ○ Action en bornage → land owner can request neighbour to set boundaries ○ Action confession → servitude/usufruct holder can assert his right ○ Action négatoire de servitude → owner can ward off unjustified servitude claims ○ Abus de droit et trouble de voisinage → neighbour has right to claim compensation against interfering neighbour Germany Rei vindicatio ○ Owner can request the return of the object held by others without entitlement ○ Owner must prove his ownership, holder must prove right to possession ○ Possessor is not obligated to return the object if he has right of possession German Civil Code ○ Right to claim removal of an interference if sufficiently linked to human behaviour Non Domino Acquisition Concept → when a third party acquires property from someone who was not authorised (civil law) or that did not have a better title (common law) Requirements for protection ○ Civil law → third party must obtain with good faith ○ Common law → third party must act in good faith, have given something of value in exchange, and been unaware of someone else having a better legal claim Movable property (Spanish Law) ○ Possession in good faith = having a title ○ If the original owner lost or was deprived, they may reclaim it Immovable property (Spanish Law) ○ Third party acquirers are protected if It is in good faith Is acquired against payment (consideration) The transferor is listed in the property registry as the owner If the acquirer registers the new acquisition in the land registry ○ Even if the title is later annulled, the acquisition remains valid Common Law English law - no distinction between ownership and possession ○ Land → Specific action for recovery Dispossession → can claim any damages against it Trespass land → can claim action for damages, file an action or injunction Nuisance → claim damages, injunction, self help - direct interference only ○ Goods → Recovery can also be attributed as a tort law remedy ○ Protected by tort law → courts take into account who has the best title to possess Protection of Goods - Property Torts ○ Tort of Negligence → entitlement to compensation when breach in duty of care  ○ Tort of Conversion → one who obtains the goods of a person and disposes of it for their own benefit are guilty of conversion - must be deliberate ○ Trespass → direct physical interference with another’s good - does not require material damage and the right to sue lies with the possessor Remedies ○ Attribution of damages → Can oblige tortfeasor to pay for damages ○ Right to claim an injunction at the discretion of the court ○ Negative injunction → Right to claim that the defendant refrains from breaches in the future ○ Mandatory Injunction → Right to force the defendant to undo the effect of past breaches ○ Interlocutory Injunction → Provisional relief until the hearing of the case ○ ○ Common Law - Trust Trust → one holds a right on behalf of another for a purpose ○ Arises from a declaration by a right holder with intention to create a trust ○ Settlor → creator of trust ○ Trustee → person holding the right, they have duties and powers (legal owner) ○ Beneficiary → person for whom they are held (equitable owner) Characteristics ○ A settlor places the property in a trust to provide for his family after he dies ○ Trustee can be a professional/family member experienced in money management ○ Division of ownership between legal and equitable Fiduciary duty ○ Trustee duty to the beneficiary to exercise his right in a way to benefit him ○ The vesting of a right in a person on trust in no way alters the nature of the right to be held nor the identity of the person who can exercise it Legal protection of the beneficiary’s equitable ownership → If they are not so exercised, the trustee will be liable to a money remedy in favour of the beneficiary Equity courts enforce equitable ownership, common law courts enforce ownership ○ Origin of the remedy is in the jurisdiction of equity Creation of Property Rights Acquisition of Property Derivative acquisition of property → Receiving a right that previously belonged to someone else (buying someone’s car) Original acquisition of property → Acquisition of new right, originating in the hands of the new owner (Ex: accession, commingling, specification) Acquisition by Prescription (Usucapio) 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 by possessing it in an open, continuous, and adverse way to the owner’s interests, over a specific period (usually 12 years) Extinctive prescription → loss of rights because action is not brought in time ○ English law → principle of limitation of actions Strong effect → person no longer has the right or can take action after x time Weak effect → person still holds the right but cannot take action/defend it Acquisition of Ownership by Acquisitive Prescription French Law Acquisitive prescription ○ Allows to own a thing through possession without having to show a title and without having bad faith used against them ○ Typically applies to acquisition of small lands because of unclear borders between neighbouring properties Effect of ownership rights ○ Extinctive prescription does not apply to ownership ○ If one meets the requirements of acquisitive prescription they can become the owner, causing the original owner to lose their right Prescription periods ○ After 30 years one can obtain ownership or any right even if it began in bad faith ○ Prescription period is reduced to 10 years if the possessor Acts in good faith Acquired possession on valid legal grounds (sale or servitude agreement) Permission and detention ○ Detainer → if they have permission to use the land, which prevents acquisitive prescription ○ interversion/inversion → change from detention to possession, occurs when the owner is aware of the change, begins prescription period Succession of Possession ○ 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 German Law Land law → Cannot be used to claim ownership against those in the public land register ○ Requirements → registered as the owner or holder for at least 30 years Movables → possessor must hold property for their own use, must act in good faith and possessed the item for 10 years minimum English Law Prescription → refers to acquiring property rights such as ○ Easement → right of way over one's land ○ Profits a prendre → right to take natural resources from one’s land Adverse possession → acquire full ownership of land through long-term possession ○ Fee simple estate → full ownership of land without fixed duration ○ Leasehold estate → temporary right to hold land  ○ One can apply, after 10 years of possession, to be registered as legal owner (owner will be notified of application) If opposed → application rejected, can reapply in two years if the owner doesn't take action to reclaim If not opposed → registered as legal owner Acquisition of Servitude by Acquisitive Prescription French law ○ Concept → Servitudes (right over one’s land) can be acquired through acquisitive prescription after 30 years, same conditions as ownership (peaceful, public, and continuous possession) ○ Special considerations for it to be acquired, the right must be permanent - right of way may not fulfil permanence requirements as they are non continuous Servitudes involving physical structures in restricted zones can lead to acquisitive prescription if they have been in place for enough time Possession of a servitude by co-owner is equivocal and cannot lead to prescription ○ Right of way (enclave in French law) → an owner whose land is landlocked can claim right of way over neighbouring land, but pay compensation of any damages German Law ○ Right of way or presence of windows cannot be acquired by prescription ○ Disputes over right of way/view is resolved by extinctive prescription meaning right to bring a claim may expire after a set amount of time English Law ○ Only easements and profits a prendre are acquired through prescription ○ For prescription to apply, the use of the servitude must meet specific conditions Usage must be without force, concealment and 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 the first one Land → land is always the primary object, structures built on the land are secondary (or attachments to the land) Value → when merged, law ensures they are preserved and not destroyed by separation Third parties → when inspecting a property they should know which objects are included with the land Status → attachment of a movable to land changes its status to immovable Original Acquisition → owner acquires ownership of the attached movable by virtue of accession → owner has full ownership of land and object Right of removal → Allows tenant or others to remove the object attached to land ○ First form → the attachment never becomes part of the land and the tenant retains ownership (french law)  ○ Second form → object accedes to the land but the tenant has the right to remove it (english law) German Law Essential components → movables that become part of land through accession (building or crops) Conditions → accession occurs when the components cannot be separated without causing damage or changing the object’s nature English Law Tenant fixtures → items added to the land by a tenant that may be removed at the end of the lease, even if they became part of the land through accession Criteria: ○ Physical criterion → if the removal would cause damage to the attachment or the land, includes objects attached by screws or bolts ○ Purpose of annexation → intention behind the attaching object determines whether it accedes to the land - its intention is derived from its nature and mode of attachment French Law Physical criterion → object is attached to land and cannot be taken without damages Incompleteness → accession may occur even if the removal does not cause damage ○ things necessary for the building to be ‘complete’ are deemed immovable even if removed easily Lease: ○ During → tenant retains ownership ○ After → landowner may acquire ownership unless an agreed otherwise Accession of Movables to Movables German law ○ Accession only occurs with essential components Principle object ○ When two movables are combined one can be essential parts and the other accessory ○ Ownership of accessory follows the essential parts Determining ownership of accessory part ○ Whether one object is viewed as primary depends on the nature of the objects and their relationship ○ If neither of the objects can be clearly considered the primary object, co-ownership of the combined object may result Commingling Dutch law ○ Genuine commingling (confusio) → When different quantities of items are mixed into a single bulk, they are one thing. The owners of the individual quantities become co-owners of the entire bulk. ○ Quasi Commingling (Commixtio) → when separate objects mix together, they remain identifiable as separate items - co ownership is not possible German Law  ○ Co ownership in Commingling → only if the goods of different owners are mixed into a specific bulk ○ Principle of specificity → for co ownership to exist, the objects subject to the property right must be identifiable Specificatio Concept → materials are transformed into new objects with a distinct identity from their original material - previous ownership rights disappear Dutch law → ownership is determined by who has a decisive influence on the production process, and who bears the risk of the objects success or failure German law → there is no specificatio if the value of the labour added to the material is 60% or less of the value of the materials used ○ Proof lies with the owner of the materials or the person denying the manufacturer’s right to ownership through specificatio