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Summary Property law lectures and cases
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SummariesW1 - Principles and general concepts of property law
1. What is property law
-area of law that deals with legal relationship between a person and a thing
-property rights = have an absolute effect –>can be enforced against everybody (erga omnes)
–>real rights, rights in rem
-purpose: to be able to do what I want with the item I have at dispose, to prevent other people
form interfering with my property
2. Law of obligations
-legal relationship between persons
–>relative rights, personal rights, rights in personam
-personal rights = can only be enforced against a specific person
-e.g. Noorlander v Lightvoet
-facts: two neighbors had conflict over the use of land –>Lightovet + Noorlander
concluded a contract that Lightvoer would be able to dispose horse manure
there–>after a while Noorlander changed his mind–>court
-ruling: valid contract, Mr Noorlander was obliged to respect that Ligtvoet would use his
land
–>BUT: when transferred to his daughter–>she argued no contract btw her and Lightover
so no deal–>lost at court–> appeal
–>court: no contract btw daughter and Lightvoet= contracts are only
binging btw parties
3. Principles
A) Principle of droit de suite
-”Right to follow”
-if there is a property right vested in a thing it follows the subject no matter in
whose hands the object ends up
-e.g. . A owns a bike, it gets stolen by B –>A's right of ownership follows the
bike, even though B is in control of the bike, A can revindicate the bike form B
-bcs his ownership right remains with the bike
B) Nemo plus principle
--Nemo plus transferre potest quam ipse habet (no one can transfer more rights
than he himself has)
-Nemo dat quod non habet (no one gives what he does not have)
C) Principle of priority
-older rights prevail
D) Right of pledge
-security of a certain debt, limited property right
-E.g. A has a car, on which B he has right of pledge, if A owes money to B, B
can sell the car and use the money to pay the debt that A owes him
E) Principle of specificity
F) Principle of publicity
1
, -creation or transfer of property rights usually requires a form of publicity (enter
into land registry which is a public info)
-extend of publicity varies form object to object v(more intense w immovables)
G) Numerus clausus
–>closed list of property rights one can have to a thing
a) Typenuwang –>which rights can be created
b) Typenfixierung –>what content can a property right have
4. Examples of property rights
A) Ownership
-most absolute right one can have (you can do anything you want with the object you
own) –>destroy, modify
–>BUT: cannot use the item I have the ownership over in a way that is
prohibited by law
-Civil law:
-rei vindicatio: if you steal my bike I can claim it back
France: Art. 544 Code Civil
-”ownership is the right to enjoy and dispose of things in the most
absolute manner, provided they are not used in a way prohibited by
statutes or regulations”
-DCFR: VIII:1:102
-“Ownership” is the most comprehensive right
a person, the “owner”, can have over property, including the
exclusive right, so far as consistent with applicable laws or rights
granted by the owner, to use, enjoy, modify, destroy, dispose of and
recover the property.’
-Common law: more relative approach, it is not necessary to prove ownership
-no definition of ownership in common law systems, bcs no civil code
and common law mostly based on case law/judge-made law
-e.g. Case Armory v Delamire (chimney sweeper + ring case)
-Difference between ownership and possession in civil law jurisdictions:
-ownership= most absolute right one can have over a thing
-possession (dutch law)= physical control over a thing
-has more elements: it requires physical control
over a thing
-possessor pretends that he is the owner
-German law: you posses the thing if you borrow it
-Dutch:
-relevancE: can play role in the transfer of ownership,
cos ownership is only transferred if the good has been delivered
B) Limited real rights (differs per movables and immovables)
a) Limited rights in Movables/Intangibles)
i) Right of usufruct (right to sue and become the owner of the fruit)
ii) Pledge (security right)
2
, b) Limited rights in Land (Immovables)
i) Right of usufruct
ii) servitude/Easement (land) –.”věcné břemeno/reálné břemeno”
-Dutch law: Art. 5:70: ›
1. An easement is a burden with which an immovable thing, the
‘servient land’, is encumbered on behalf of another immovable
thing, the ‘dominant land’.
-Art. 5:71: Content of the burden on the servient land
- 1. The burden that an easement imposes upon the servient land,
consists of the duty to tolerate an object or activity on, above or
under the servient or dominant land or to refrain (leave off)
from putting an object or performing an activity on, above or
under one of these lands. [...]
iii) Emphyteusis/ Long leasehold (land) - right to use someone's land for agricultural
purposes
iv) Right to superifies (land
v) Mortgage (security rights)
c) Security rights
d) Rights to use
C) Right to separation
-the holder of a property right can enforce his property tight even if the possessor of the
object is bankrupt
-bankrupcy administrator has to respect the property rights of third parties
Assignments:
Questions:
1. What are the characteristics of property rights as opposed to personal rights?
-personal rights = can be only enforced against a specific person
right against a person
juridical relation between two or more specific persons
relative
-property rights = have an absolute effect, can be enforced against everybody
Right in a thing
Juridical relation between a person and a thing
Absolute –>enforceable in principle against everybody
Priority principle = older property rights prevails!
3
, 2. What is the purpose of property (rights)?
-to be able to do everything I want with the item I have at dispose, to prevent other people
from interfering with my property
-crucial for proper functioning of economy
-property rights regulate relations between persons and things (tangibles and intangibles)
Property rights allocate scarce goods
Property law regulated in essence:
–>which property rights are recognized
–>The content of those recognized property rights
–>How one is able to acquire or abandon property rights
–>How a property right can be transferred
–>How a limited right can be created
3. What is the difference between movable and immovable property? What is the purpose
of this distinction?
-movable property= transferable - like a pen
-movable property rights are rights in movable things such as a book or a car
-immovable = cannot be transferred, house, land
-immovable property rights are rights in Land
-what is the purpose? –> because the rules may vary on certain points - with immovables
you have to register the transfer in a Land register there are more formalities than for the
transfer of a movable thing
-principle of publicity
-
4. Book VIII DCFR is about ownership. What is ownership? Is there a different notion of
ownership in common law jurisdictions?
-it’s the most absolute right one can have over a thing. It gives me the right to do
everything I want with the item - to modify it, destroy it. Also cannot use the item I have
the ownership over in a way that is prohibited by law
-the definition of ownership in common law has a more relative approach - it is not
necessary to prove ownership - it is the most absolute right, can be enforced against
everyone except the real owner -> VIII.1:202: definition of ownership
In civil law systems protected by the rei vindicatio –>if u steal my bike I can claim it
back
4
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