Property Law –summary
• Principles of Property Law
2 categories: Tangibles v.s. Intangibles
Corporeal/ Tangibles: Further defined into [Movables/ Immovables]
Incorporeal/ intangibles: Claims/ Intellectual property (Copyright – books, music and
industrial rights—Patents, trademarks)
French and English law: Property rights can be held on incorporeal too (French law consider
all things, whether you can touch them or not)
Germany and Netherlands: Restrict property law on corporeal only (German law: Concept of
an object is the essential foundation, defined as a physical thing à par. 90 BGB; animals are
treated as objects (movables) Human body is not an object but parts that are separate from
a living body are objects, e.g. transplanted organs, hair)
Property law: Rights against the world àErga omnes = different from personal rights, it’s an
undefined group (everyone in principle). Binding upon every person, correspond with duties
resting on everyone, strong!
Distinction between personal rights and property rights:
1. Personal rights do not bind every other person, they only have effect between
parties, are not effective erga omnes
2. The right to follow and the right of preference
English case: Keppel v. Bailey p. 66
Parties are not free to create a new, as yet unknown, property rights by themselves
Claims (Ch.4 Book)
- Incorporeal, is the right to the performance of another, is a personal right
- Regulate debtor-creditor relations: debtor has obligation to perform an action (e.g.
repay creditor) and creditor holds the right to claim payment
Creditor can
- Use/ enjoy claim, e.g. Rent object to another
- Transfer/assign the claim to another
- Use claim as security to access finance
• France: Claims are movables (art. 544 does not expressly limit the application of this
right to corporeal objects, CC does not contain a definition of the concept of a claim
but deals with lawful situations which can arise for the creditor; the claim defines itself
as the right of one person (the creditor) to demand of other (the debtor) a performance
(action of abstention)
Germany: Intangible. Claims can definitely not be the object of property rights (art. 90 and 903
BGB)
English: Dearle v Hall: A complete property right, title, can be held on a choice in action.
Approach is very much the same as in civil law.
Ownership
- Most extensive right in relation to an object + wide protected right, includes positive
and negative obligations
- Positive obligation: Someone is allowed to use, to enjoy, to ruin, to dispose of
something that they own
- Negative obligation: Someone cannot interfere the object that somebody else owes,
you cannot trespass it, you cannot take it
,Definition of ownership:
- French law: Art. 544 Cciv; 543 ‘Right of enjoyment’
- German law: 903 BGB: Restrict ownership right to corporeal objects only, ownership
of claims is impossible’
English law: No civil codes, no code of property law, judge made system
Concept of ownership is not absolute, there are limitations
1. Public laws: with common goods, public goods – state maintains the right to manage
them, manage recourses in a land, nature protection
2. Neighbour law, e.g. Right of path granted to a neighbour, neighbour fights, abuse of
rights
Limitations in neighbour law [Book I.A.4 Chapter 3]
Dutch case: Hoge Raad [2005] p. 234
- When land is enclosed by other land and the public road cannot be reached, the
owner of the enclosed piece of land may demand a path to the public road over the
land of one of the neighbours (Art. 5:57 BW)
German case: The waterway [1964] p. 235
- An enclosed piece of land that needs a path out can be granted such a path under
certain conditions (242 BGB)
French case: Delafoy v. Verly p. 237
- The owner of a landlocked piece of land needing a path for access can be granted
such a path under certain circumstances (also apply to pipelines) [Art. 682 Cciv]
** Dutch and German law: The right to a path is found through a limitation on the right of
ownership imposed by law.
French law: The right to a path is constructed by the recognition of a limited property right.
Two different approaches achieve similar results!
Limitations in neighbour law
• There can be situations where the powers of the owner also extend into the ownership
of a neighbour
• E.g. If part of a building is placed on a piece of land owner by another, the person
owning the bulk of the land on which the building is placed can, under certain
conditions, be forced to tolerate the building → Either by allowing the creation of a
limited property right burdening the ownership of the latter owner or by recognising a
legal duty to tolerate
• Law of neighbours by its nature only applies to immovables, no application dealing with
movables
• The right to a path is a primary part of neighbour law
3. Contract law, e.g. non-transferability clauses
** Relevant cases (ownership)
- France: Coquerel v. Clement-Bayard (p. 220) limits ownership by preventing an
owner from using his ownership purely to cause nuisance to his neighbour
- Netherlands: Stolk v. Van der Goes (p. 221): Necessary to prove that the aim of the
abuse was to be a pure nuisance for abuse of rights to apply
- Germany: The owner must allow the access of others if he has given permission.
FYI:
Coquerel v. Clement-Bayard (p. 220) Chapter 3 I.A
- The powers of the owner and therefore the most comprehensive nature of the right of
ownership do not go as far as to allow the owner to use his ownership purely to
cause a nuisance to his neighbour
, - Held that building a wall for the sole purpose of causing a nuisance to a neighbour is
an abuse of the right of ownership
Stolk v. Van der Goes (p. 221)
The abuse of rights doctrine does not apply simply because the act of an owner could have
been conducted in such a way as to cause less damage.
Feudalism [History of property law: Roman Lawà Vulgar law à Feudal period]
First started developed in English law. Feudal system functions as the system of governance
and of property. The Monarch at the top of the hierarchy, he is the owner of the land, rent out
his land to a Lord.
- The Monarch gave out land to a Lord with the Lord administering and defending the
land, make sure that the land is maintained. The Lord gave tenure of land to a Vassal
(agreement with a vassal, say that vassal has a right to stay in the land as long as he
maintains the land), who provided military and non-military services. The Vassal
provided services to a plot of land called a fief
- Hierarchy—absolute owner is the Monarch, vassal just providing labour services, lord
maintains the land
- Idea: Land held in exchange of services, like a system of public governance, land
governance, but we still have private ownership from the Monarch
- Feudal system has not been abolished in England but the system was transformed
and a modern system of property law was resulted.
Continental Europe: Change of approach
- 1789 French Revolution, abolishment of Feudalism but we have the constitution being
drafted
- French constitution drafted+ separated private and public property. New ideas:
1. Independent and exclusive ownership (from the state) and then the state has nothing
to do with that property; positive duties could not run with the land anymore, were
abolished
2. A unitary concept of ownership (as a concept above everything else, no one can
interfere, not even a State) – The dominium utile and dominium directum distinction
did not prevails but this unitary concept of ownership is introduced. à The idea that
you can’t fragment ownerships into smaller pieces, ownership is a whole, unitary,
multiple people have the same right of ownership in relation to one object but can’t
fragment ownership anymore
p. 224-226 Book --Unitary right cannot be divided or at least cannot be divided so as to
lose its status (Relates to co-ownership)
French case: Pochiola v. Ferouillet: The right of ownership of a plot of land comprises the
land and any building erected upon it
3. Division between contract and property law was made
- Civil law has strong dislike for positive burdens, because ownership seen as absolute:
No owner can be forced to do something (otherwise would resemble the service
providence under Feudalism)
Blaauboer cs v. Berlips and Van Aalst (p. 88)
- Show the sharp distinction between contral law and property law
In today’s term… Ownership is:
- On things above and below land
- *****Superfies solo cedit: It means you own something above and below the land,
objects can accede to the owner of land. Anything that is developed in your land, you
are also its owner
à Established in Leigh v. Skyviews case (art. 552 CC mentioned this rule)
, à Overhanging crane Germany case p. 228 (owner of the land is also the owner of the
crane)
Limitations on the rights of the owner [Book Chapter 3 I.A.4] The overhanging crane case
- The owner does not have to tolerate a 20m high crane hanging particle used by a
neighbouring company swinging over his land
The ownership has power over the space below and above the object of his ownership. This
right extends to the space above and below his land
Criteria to assess whether it is immovable or movable:
To see if immovable will accede to owner of land/building, 3 criteria have to be established
(not in any case law, just general criteria Paul gave) Use this when the question is about
immovable!
1. Immovables are attached to, part and parcel of land
2. Intended to remain attached for indefinite time
3. Apparent intention of builder determined objectively and using common sense: When
he built this thing, did he expect it to attach to the land forever?
All met then yes we are dealing with immovables.
Civil Law ownership
- The organizing principle of property law, the ultimate principle and starting point of
property law
- Recognises a limited number of types of interests in property (numerus clausus)
- Recognizes ‘ownership’ or ‘absolute ownership’
- Unicity: Full ownership over lad/object
- The legal entitlement of an object
- Distinction between ownership and possession: Not the same with possession (you
may have possession of something, but it doesn’t mean you have the ownership of it)
German Law (Focus on the power of the owners)
- 903 BGB: Allows the owner to use the object as he thinks fit
French law (Focus on the content of the right of ownership)
- Art. 544 Cciv: Distinguish three powers of the owner: (1) the right to use; (2) the right
to enjoy; (3) the right to alienate
- Art. 545 CCiv, no one can be compelled to give up his ownership (Relevant case:
Samuel v Monolon and others; ruled that unless it is for public purposes)
Dutch law: focus on the content of the right of ownership (Definition of ownership in art. 5:2
BW)
Regarding possession:
French law: Art. 2255 (Definition of possession), 2256 (one is always presumed to possess
for oneself) [Book Chapter 2 section I.A]
- Possession requires two factors: (1) Actual control of the object and (2) the will to
hold the object as an owner
- Art. 2266 Cciv: Distinction between possession and detention plays an important
role for the acquisition of property rights as the detentor cannot acquire ownership of
the object by way of acquisitive prescription
German law: BGB does not provide for a general definition of possession but concentrates
on the aspect of the protection of possession
Possession is understood as the actual control of a corporeal object, can be shared by
several persons
- Par. 868 BGB: Direct possessor has actual control of the object, indirect possessor
exercises his possession not in person but by an intermediary
