Lecture 1: The Concept of Property Law
What is property law?
It is the law of things: tangible/corporeal & or intangible/ incorporeal
- Property law deals with anything which deals with a person’s estate or patrimony
(anything that has economic value).
- Property law deals also with claims, intellectual property rights, etc. So it is much more
than real estate law.
- It is about rules governing which rights individuals and organizations have in relation to
tangible and intangible objects.
- Those rights which sit in the heart of property law are absolute rights. They have effect
erga omnes against all others. Contractual rights are a different type of rights.
Case: Trump wants to buy Greenland from Denmark. (mainly strategic reasons)
1) How is this idea related to property law?
- Buying land or territory is certainly related to property law.
2) What do you think property law requires to seal this deal?
- There needs to be a title to transfer the land, i.e., a notary deed. In this case, the US must
make a contract with the seller.
- The seller needs ownership. You need to be able to dispose the land you are willing to
sell. The next question is, does Denmark own Greenland? Assuming that Denmark has all
to say in Greenland. The main principle is self-determination.
- A third requirement is that there needs to be some sort of registration so that it is public.
- Another requirement is that you need financing and the bank will not give you the money
unless it has security.
3) What problems do you see with the deal?
- As we said, Denmark does not own Greenland. Perhaps they have some sort of a different
idea of ownership.
, - Customary ownership, meaning that individual ownership does not exist. Instead, there is
community ownership. Of course, if land is involved, environmental law is involved.
Property law is somewhere in the middle of all of that.
How is this case related to… contract? tort? property?
- After the deal has been sold, nuisance issues might come up in relation to the people
working there. Nuisance is a tort. A tort can then be wielded to protect the property
interests of the people living there.
Defining characteristics
- Contract: it is all about agreements. Parties need to agree on things (performance). It
comes about through the consent of the parties. As result parties oblige themselves
- Tort: tort law deals with wrongs. How do these come about? It’s involuntary. The
tort-teaser did something to the victim which he did not like. We can attach liability to
the harm. As a result, an obligation to make good things.
- Property law is about things/ objects. Sometimes these rights come about through
consent but also through an issue through fact. Basically property law confirms the status
quo. The result of this are absolute rights against anyone.
- Property law concerns the right on an object while contract law concerns the right
vis-a-vis another person.
- Property law deals with subject-object relation while the law of obligations deals with
subject-subject relations.
- Property law has emna orges effects while contract law has effect inter partes.
- Property law is limited in number and type (numerus clauses) by law while the law of
obligations is unlimited in number and type (contract).
- Property law is standardized in its content unless law permits while in contract law we
have freedom to decide on the content unless the law forbids.
However, a strict dichotomy is false.
- Property rights are often rooted in contract f.ex.: title of ownership is transferred by a
contract.
, - Property rights also create obligations and responsibilities f.ex.: owners are liable if their
dangerous objects cause damage to others.
- Property rights allow for specific arrangements f.ex.: under a ‘ground lease’ parties can
agree on the price, term, maintenance. Also, it depends on the respective legal system
f.ex.: Trennungsprinzip in Germany.
What are things?
Division between corporeal/tangible (things you can touch) & incorporeal/intangible
Corporeals things
- Moveable (e.g., book)
- Immovable (e.g., swimming pool)
Incorporeal things
- Claims (right)
- Intellectual property rights
Is a right a thing?
Claims
- F.ex.: Claim for performance. A has the right to be paid from B. That is a claim. So we
have a subject (a) who has a right (entitlement) for an object (claim).
- F.ex.: Y wants money from B. They contract for that. B provides the loan. The condition
under which it provides the loan is the repayment of that loan. So, B has the right to
repayment from Y which is also the object, the claim of the matter. B can also transfer
this claim to a third party and the third party can then enforce this claim from the original
creditor.
The law of obligations creates ‘debtor-creditor relations’
- Debt (or passive): obligation to perform (here: Y must repay)
- Credit (or active): right to claim (here: B can claim repayment)
Claim = an object in property law
- Right Holder can use/ enjoy it (“rents”), transfer it (“assign”) to someone else, use for
security purposes to attract investments (“burden it”).
- If Y repays the money, the claim is gone.
, - Intellectual property rights are of different kinds i.e., copyright and industrial rights.
Industrial rights are trademarks and patents.
Functions of property law
It provides autonomy.
Trust, consistency, and security
- Protection of status quo
- Standardized content of property rights (everyone knows what you can and cannot do)
- Security rights (it provides security to lenders of money that if the borrower defaults on
the loan, that the security rights holder can go after the assets to recover his loan)
Administration
- Registration systems (we want to be transparent so that everyone knows who owns what.
It is in principle in the interest of those who try to acquire new ownership rights)
Ownership
- It is the paramount property right there is. It is the most extensive right in relation to an
object.
- It has positive sides at least from the perspective of the holder of an ownership right. He
can use it, transfer it, burden it, etc.
- It also has a negative side to this and that is to others that need to respect the property
right of you i.e., not to damage, destroy, trespass etc.
- It is absolute.
It comes with great protection.
It is a fundamental right.
- Art. 1, ECHR: negative and positive obligation on states to safeguard that property right.
- Constitution: e.g. Art. 14 German Grundgesetz.
- Tort law: e.g. §823 BGB, art. 1242 CC protects property rights, trespass to land/goods,
rule in Rylands v Fletcher
Property law: possessory/ ownership actions (you can reclaim your goods from a thief)
Limits on ownership
- Statute and regulations
