Vladyslava Panasovska (vlada.pan97@gmail.com)
LECTURE 5A: CREATION OF PROPERTY RIGHTS
I. Original and derivative acquisition
› Derivative acquisition
The property right is derived from someone else
The acquisition is based on the rules for transfer
Nemo dat principle, you acquire right in the original state that was
with the previous owner
› Original acquisition
The acquisition of the property right is original, i.e.: the right did not
previously exist
The acquisition is based on specific rules, on the basis of which new
rights can come into being.
No or limited droit de suite: creation of new property right > old
property rights cease to exists
II. Accession to land
› The ‘attaching’ of a thing to another thing
› The attached thing becomes a component of the other thing
› Presupposes: main thing and a component
› In the case of land: land is always considered as the main object
Land is indestructible and permanent
Transfer rules link up to the plot of land, meaning that it is unlikely
that land will be not the main object.
› Consequence: owner of the land will become owner of the attached thing
if the thing becomes a component thing of a main thing it ceases to exist as a
separate object of property meaning it can no longer derive ownership over
the component thing because it became a part of a main thing
› Superficies solo cedit owner of the land acquire what is attached to it
› Why does accession come into play? Justification for this unfairness?
› When does accession come into play?
› How relevant is the subjective intention?
Rationale of accession
› Preservation of the unity of things legal argument: if you see a car we
intuitively know what includes a car (usually wheels, engine etc).
› Preservation of value economic argument
‘The sum is worth more than the separate parts’
› Legal certainty common opinion
‘What you see is what you get’
Consequences
› The movable will become an immovable
,Vladyslava Panasovska (vlada.pan97@gmail.com)
› Owner of land will become owner of the thing
› Owner of the movable will lose his right of ownership
› All property rights with regard to the movable will cease to exist
Dutch law: accession to land
› Art. 3:3 BW: determines whether an object is an immovable p. 621
Article 3:3 ‘Immovable’ and ‘movable’
- 1. ‘Immovable’ are the land, the not yet mined minerals, the plants connected with the land,
and the buildings and constructions permanently attached to the land, either directly or
through a connection with other buildings or constructions.
-2. ‘Movable’ are all things that are not immovable.
› Art. 3:3 BW criterion:
› ‘Permanently connected, directly or indirectly’
› Art. 3:4 BW: determines whether an object is a component part of a thing
Article 3:4 ‘Components’
- 1. All that, according to general accepted views (common opinion), forms a part of a
thing, is a ‘component’ of that thing.
- 2. A thing that is attached to another principal thing in such a way that it cannot be
separated from it without causing meaningful damage to one of the things, becomes a
component of the principle thing. --> physical criterion
› Art. 5:20 BW: determines what is covered by the right of ownership of a
parcel
Article 5:20 Scope of the right of ownership of land
- 1. The ownership of land comprises, as far as the law does not provide otherwise:
a. the topsoil;
b. the layers of earth beneath the topsoil;
c. the groundwater that comes to the surface naturally or through an installation;
d. the water above the soil unless it has an open connection to water covering another’s land;
e. buildings and constructions permanently attached to the soil, either directly or through a
connection with another building or construction, unless they are a component of someone
else’s immovable thing;
f. plants (vegetation) and trees connected to the soil.
- 2. Contrary to paragraph 1, the ownership of a network, existing of one or more cables or
pipelines which are used for transporting fixed, liquid or gaseous substances, energy or
information, which are or will be installed in, on or above the land of others, belongs to the
person who has lawfully installed them or to his legal successors.
›
› Accession can be the result of either of these norms (art. 3:4 BW OR art.
3:3 j° 5:20 BW)
Portacabin case p.620: man needed an office space and therefore he placed
portacabin on his land next to the other buildings. It was placed on concrete
foundation to close the gap between the land and the building. The cabin
was connected to gas and electricity. If you look at it was seemed as an
immovable building except for the fact that it was potentially movable
portacabin.
,Vladyslava Panasovska (vlada.pan97@gmail.com)
› Supreme court came with a criterion when something is attached to the
land permanently. The tests says in paragraph 3.3 on page 621: ‘the building
can be permanently connected to the land within the meaning of Article 3:3
BW, when it is designated, by its nature and design to remain there for a
considerable period of time. The technical possibility to move building is
irrelevant.’
› Designated by nature and design to remain there for a considerable period’
› The possibility of removal is irrelevant
› Intention of the builder can be relevant in so far as this can be externally
established. To the outside world, the intention of the builder can be
established whether the construction is intended for a long period of time.
› What becomes relevant are the circumstances of the case and here it was
relevant that the building was placed on concrete foundation and it was a
skirting board which made an impression to the outside world that it is a
unified building. It was also connected to gas, electricity etc.
› Subjective intention is irrelevant!
› Public opinion cannot be used as a separate criterion to decide whether an
object is movable or immovable. It can, however, be taken into account in
those cases where there is uncertainty whether an object has a durable link to
the land, and when for the application of that criterion in a certain case it
must be established what ‘durable’, ‘connection’, ‘designation’ or
‘recognisable for third parties’ means.
› Portacabin is an example that something was attached to the land. But there
is also a case when something is attached to the building. Are these things
by when of accession, do they become part of the building itself?
Dutch law: accession to building
› Art. 3:4 BW: principal part vs. component parts:
Public opinion parag. 1
Separation causes considerable damage parag. 2
› Most relevant criterion: public opinion (verkeersopvatting), because many
things nowadays can be removed without considerable damage;
› Dépex v curatoren Bergel p. 623 main test was developed in this case.
› Facts: Depex sold distillery equipment to manufacturing company under the
reservation of ownership clause. Under this clause, ownership will pass only
after the payment. However, the purchase price was never paind and DEpex
went into administration and insolvemcy. It was necessary to install a
distillery equipment in the building. The question is whether Depex still
revindicate his ownership of the equipment or it become an integral part of
the building.
, Vladyslava Panasovska (vlada.pan97@gmail.com)
› Supreme court set the relevant criteria in parag. 3.7: ‘Cases as these are
about answering the question whether equipment and a building should be
seen together as one object. When a building and equipment in construction
are made dependent on each other, a clue is provided to positively answer
that question. The same applies when a building from a viewpoint of its
suitability as a factory building in the absence of the equipment must be seen
as incomplete. The function the equipment fulfils is not a part of applying
this criterion.’
Specially constructed to fit each other
Incompleteness
German law
› Whether a thing becomes an essential component of another thing
Decisive criterion: (wesentlicher Bestandteil; § 93 BGB)
Section 93
Essential parts of a thing
Parts of a thing that cannot be separated without one or the other being destroyed or undergoing
a change of nature (essential parts) cannot be the subject of separate rights.
Separation without damaging or changing the nature of one of the
components is impossible. If it is not possible to remove a thing
without changing the nature of the component it is an essential
component and does belong to the owner of the main object.
› With regard to land (§ 94 BGB):
Section 94 BGB
Essential parts of a plot of land or a building
(1) The essential parts of a plot of land include the things firmly attached to the land, in particular
buildings, and the produce of the plot of land, as long as it is connected with the land. Seed becomes
an essential part of the plot of land when it is sown, and a plant when it is planted.
(2) The essential parts of a building include the things inserted in order to construct the building
Objects (especially buildings) which are firmly attached to the land
Objects inserted for the construction of the building
› Exception: temporary purpose §95 BGB
Section 95
Merely temporary purpose
(1) The parts of a plot of land do not include things that are connected with the land only for a
temporary purpose. The same applies to a building or other structure that is connected with a plot
of land belonging to another by a person exercising a right over that land.
(2) Things that are inserted into a building for a temporary purpose are not parts of the building.
