Dutch Law in English – Summary of Chapter 5 + 3 + 4 + 10
End term Dedicated Minor Law (course 1) – Dutch Law in English – Antoinette Dop
Chapter 5 – Law of Property
Law of Obligations – juridical acts or claims from person to person; rights in personam (personal rights);
this field of law allows for more discretion.
Personal rights – can be exercised w.r.t. another juridical subject to demand execution of obligation;
right to physical integrity, privacy and honour.
Law of Property – concerned with property and all rights derived from it; rights in rem (real rights); it
focuses on the relationship between juridical subjects and property; it is divided into choses (tangible
corporeal objects subject to human control) and pecuniary rights (choses in action).
Real rights – absolute and exclusive; attached to a chose or pecuniary right (but this excludes personal
rights); these rights can be exerted against anyone; right of ownership and patents.
Choses – this ‘class’ can be further divided into movables (property or objects not fixated in one place)
and immovable choses (all together this is real estate).
Registered and non-registered property – all immovable choses (like buildings and land) are registered
publicly; movable choses can be registered, but most movables are non-registered.
Coercive property rules of law – the origin of the relationship between subjects and property has been
laid down (statutorily, written); Dutch law of property is a closed system which only has a limited
number of real (in rem) rights and parties cannot create own real rights.
Ownership, a real right, is considered to be the most comprehensive right, meaning that all other real
rights, so-called Limited rights, are derived from it.
Limited rights established on a registered property are also registered property; limited rights can be
divided into rights of enjoyment and security interests.
Rights of Enjoyment – right of usufruct, servitude, leasehold, and superficies.
Security interests – right of pledge and hypothec (mortgage).
Usufruct – limited real right; the right to use and benefit from another’s property.
Servitude – registered right that a natural or legal person has over another’s immovable property.
Leasehold (estate) – ownership of a temporary right to hold land or property; tenant holds rights to real
property.
Superficies – anything placed upon and attached to the ground, and most commonly refers to a building
owned by another.
Corporeal rights – ownership. Incorporeal rights – patents, copyrights, debts.
Limited rights can restrict an owner’s power of disposal of property, as a result of droit de suite.
Qualitative obligation – provision which makes it possible for an entitled party (person) to commit
himself to an obligation w.r.t. a registered property; arising from a contract which can be performed
without registration.
Right of Servitude – a real right attached to immovable property by which the owner of the dominant
tenement has been granted right over another tenement (limited right attached to immovable.
, Possession – a factual concept, whether someone is qualified as a possessor depends on views and
the law and whether the possessor commits acts which are exclusively reserved for the owner; there are
three ways of acquiring possession (direct and indirect): acquired by occupatio, meaning taking actual
control of a chose which did not belong to anyone and having the property in power; acquired by
transfer of possession, the chose is handed over from the alienator to the acquirer, or if the alienator
does not have the chose in possession a bilateral declaration will suffice; acquired by universal title,
meaning that a legal successor steps into the predecessor’s footsteps and whatever the predecessor
possesses is now possessed by the successor (e.g. through inheritance).
Procedural Function of Possession – the assumption that the possessor is deemed to be the owner of
the property (chose) particularly in respect of movables; any disturbance of a possessor’s rights can be
protected by bringing an action based on possession.
Detention – a detentor holds the property or chose for oneself but only has the power over that chose,
by virtue of a juridical relationship; a detentor still recognises the possessor as the party which is entitled
to the chose (unless there is a reversal of detention).
Ownership – acquisition can be performed through particular or through universal title; an acquisition
by particular title is defined as the acquisition of one or more properties under a causa (legacy,
purchase, gift); an acquirer by universal title inherits all assets and liabilities of a (deceased) person’s
property; there is also a distinction between derived and original modes of ownership acquisition;
derived mode means that the acquirer derives rights from the alienator or predecessor (transfer,
merger, succession); original mode describes the situation when the ownership right is first created for
the acquirer; including movable properties occupatio and specificatio (creation of new property for
another’s property).
Causa – a proceeding whereby a natural or legal person seeks a legal remedy; something which brings
about a (legal) consequence or result.
Remedy – means to enforce a right; a way for a natural or legal person to show one is right in a juridical
process
Transfer – the most important mode of acquisition of ownership for movable and immovable choses;
can be transfer of rights (assignment) or transfer of property; important: a transfer of a chose is valid
when three requirements are complied with, namely 1) a valid, sufficiently precise causa, which
concerns the juridical relationship underlying the acquisition; 2) power of disposal of property by the
alienator, meaning that the natural person who gets rid of the chose should have the ability to do so; 3)
the valid act of delivery, implying that the chose actually leaves the alienator and becomes the
acquirer’s.
Causa Doctrine – the relationship between the valid causa and the acquisition of ownership.
Invalid Causa, examples – causes which are valid at the moment of transfer but nullified or made void
afterwards (acquirer most likely sustains new ownership); causes which were invalid or void from the
beginning (putative; original owner never lost ownership rights); causes which are contrary to the law.
Contract Dissolution – non-compliance does not affect the validity of the causa because it was valid at
the moment of delivery and will only have consequences for the future.
If there is a transfer of ownership of property from one (natural) person to another and this first transfer
was based on an invalid causa, this means that the second ‘owner’ never actually had ownership
rights; this means that the second ‘owner’ does not have the power of disposal (one of the three
