Summary
Summary - Property Law (RGBPR50305)
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The summary notes include lecture notes from weeks 1-7 and are combined with case summaries and readings notes.
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Principles and General Concepts of Property LawProperty Law:
● An area of law that is concerned with - or focuses on - legal relationships between a person and a thing
● governs relationships between persons and things
● Rights in rem — binding on third parties — the whole world
● More formalities
○ Done through a notary
○ Public register — anyone can seen the property rights of everyone
● Mandatory rules
○ Less freedom in the area of property law
○ Because it is not just relevant for the two parties involved in the transfer, but also through third parties
○ Example: there are limited property rights
■ Those are the only rights that can come into being, acquired and transferred
Noorlander v. Ligtvoet: Distinction between law of obligations & law of property
● The two parties were neighbors
● N owned a part of land and L owned the other one next to it
● N and L had an understanding because L had transferred a piece of land of his to N for free
● Agreement that L could use some of his land
● At one point N did not want to let L use his land anymore
● L went to court and won the case
○ There was a contract for being allowed to use the land
● N transferred land to Njunior
● Daughter forbid L from using the land
● L again went to court — on the basis of the agreement and that Njunior was aware of it
● L lost the case
● Agreement is only binding between the two initial parties
Principle of Absolute Effect
● Basis for property law
● Absolute rights are enforceable against the whole world
Principle of Droit de Suit
● The right follows the object
● Meaning that the right is always attached to the object
● Example:
○ If A owns a bicycle, and then bicycle is stolen from another person… B is a thief
○ A is still the owner of the bicycle, and enforce the right against B and revindicate the bicycle
○ If B makes a present to C, who doesn’t know the theft, C is in good faith
○ C is still not the owner as the rights are still with A
○ Ownership right of A is an absolute right
Nemo Plus Principle
● You cannot give what you do not have
● No one can transfer more rights than they own
● No one can transfer something that they do not have (relates to example above)
Principle of Priority
● If parties have competing rights (e.g. the same rights, pledgee), the party who was granted the right first and
accordingly, the one with the oldest right, is given priority.
● Consequently, his right is enforceable against the other competing parties
,Principle of Specificity
● Property rights only exist with respect to specific things
● It has to be sufficiently clear in which object a property right is vested in
Principle of Publicity
● The creation of transfer of property rights usually requires a form of publicity
● Most extensive publicity is prescribed when you’re dealing with land and real estate (due to its importance)
Numerus Clausus Principle
● Closed list of property rights
● Legislators and the courts recognise a limited variety of property rights and their contents
○ Typenzwang: Which property rights can be created? E.g. easements
○ Typenfixierung: What content can a property right have? E.g. In English law, initially, easements can
constitute a right of way but not a right of pure recreation or sport
Examples of Property Rights
● Ownership (title): strongest property right
● Limited real/property rights: less than ownership; article VIII. – 1:204 DCFR
● Security rights: pledge (for movables), mortgage (for immovables)
● Rights to use: usufruct, servitude (e.g. easements)
● Emphyteusis: land belongs to government, legally you don’t own house but you have economic ownership over
the house → close to legal ownership
● Superficies: horizontal, you own land but someone else owns the house on the land
Objects of property rights
● Things: movables: personal property, goods in the DCFR; immovables: real estate, land
● Other assets: claims e.g. assignments
Ownership
● Common law takes a more relative approach
○ Armory v. Delamirie
■ “That the finder of a jewel, though he does not by such finding acquire an absolute property or
ownership, yet he has such a property as will enable him to keep it against all but the rightful
owner, and subsequently may maintain trover”
■ A chimney sweep boy found a jewel. He took the jewel to a jewel expert. The jewel expert
refused to return the jewel to the chimney sweep boy. The chimney sweep boy could claim
trover against the jewel expert since he had a better right to the jewel compared to the jewel
expert. In comparison to the true owner of the jewel, the chimney sweep boy did not have a
better right to the jewel.
● VIII. – 1:202: Ownership
‘“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.’
Possession
● Based on outside appearance (factual) rather than legal relationships
○ E.g. Arts. 107 and 108, Book 3, Dutch BW
● Possession in the DCFR — Article VIIII 1:205-208
○ Physical control
○ Direct or indirect
○ Owner-possessor (VIII 1:207)
○ Limited-right
● Limited Right Possessor (VIII 1:207
○ Owner has indirect possession
○ Limited right possessor has direct possession
○ E.g. usufruct
, ● Importance of Possession
○ Requirement of transfer
■ Delivery of movables
■ Physical delivery, constructive delivery
○ Acquisitive prescription
■ Acquiring property through continuous possession
Production, Commingling & Combination
Unity Principle
● If in common opinion something is regarded to as a single unit, it is treated as such in law
● Mandatory rule in NL
● DCFR: More room for party autonomy
○ VIII-5:101: ‘Party autonomy and relation to other provisions, (1) the consequences of production,
combination or commingling can be regulated by party agreement’
● Bike saddle example:
○ If you steal something – the ownership follows the object so it is not yours, as the ownership was not
transferred; however, if I attach it to something that is mine – it is treated as a unit therefore I do own it.
Combination (Accessio)
● Bike saddle example is also an example of combination
● Article 5:14, par. 1 Dutch Civil Code
○ “Where a movable thing becomes part of another movable thing, which must be regarded as the
principal thing, its ownership passes to the owner of the principal thing.”
● When does something become a part of a thing?
○ Art .3:4 Dutch Civil Code
1. A component part of a thing is anything commonly considered to form part of that thing.
2. A thing attached to a principal thing in such a manner that it cannot be separated therefore
without substantial damage, to either, or a component of that thing.
○ 1: Public opinion — does the majority of the public see the thing be a permanent part of the principal
thing — in common opinion, the bike seat is a part of the bike
○ 2: Even if in common opinion, something is not a part of the bike… it is still considered a part of the
bike if it will damage the bike by taking it off.
● Principal thing
○ Art. 5:14, par. 3 Dutch Civil Code
■ ‘A thing shall be considered a principal thing where it’s value considerably exceeds that of the
other thing or it is so regarded by common opinion.’
○ If one of the things value exceeds the value of the other thing, that is the principal thing;
○ subordinate thing is all the other parts
○ common opinion prevails if it points in another direction
○ Diamond Case:
■ A diamond costs 10000 euros
■ You own a ring worth 100 euros
■ I borrow the diamond
■ Instead of bringing it back, you attach the diamond to the wedding ring
■ Who owns the diamond?
■ The ring is the principal object, as it defines the object and gives it identity — public opinion
■ Diamond costs way more so the diamond is the principal thing — value
■ When both rules conflict with each other then common opinion will prevail
● DCFR – Art. VIII. – 5:203(1) – this article applies where goods owned by different persons are combined in the
sense that separation would be impossible or economically unreasonable; in (2) more protection for owners’
components
○ Even when combination takes place (owner of the principal part becomes owner of subordinate part),
there is still some protection for the owner of the subordinate part
○ Person who loses ownership of the previous subordinate, receives a claim to be owner of the subordinate
part with a security right
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