12 & 13. Real Rights and Private Property

Question 1

What are real rights?

Answer 1

An immediate and direct power of a person over a thing that the other have to tolerate. The holder of the real thing has the possibility to enjoy and use the thing and to oppose its existence in front of everybody.

Question 2

Characteristics of real rights:

Answer 2

1. Direct power over a thing.
2. Exclusion power: the holder can exclude anybody’s actions over his right in prejudice of it.
3. Efficacy erga omens: the real right has efficacy regarding all.
4. Universal and pursuit power: the real right follows the thing wherever it is and whoever possesses it.

Question 3

What are credit rights?

Answer 3

Those that bind debtor and creditor.

Question 4

Differences between the real and credit rights re the persons involved:

Answer 4

Real rights: regarding all.
Credit rights: effective against debtor.

Question 5

Differences between the real and credit rights re the object:

Answer 5

Real rights: over a thing.
Credit: Possibility to ask for a particular behaviour.

Question 6

Differences between the real and credit rights re the power awarded to the right-holder:

Answer 6

Real: established by law.
Credit: the parties can organise their obligations at their own.

Question 7

Differences between the real and credit rights re the effects:

Answer 7

The loss of the thing with is the object of the real thing entails the loss of the right.
The loss of the thing in a obligation only entails the end of it in certain circumstances.

Question 8

Differences between the real and credit rights re the origin:

Answer 8

For the transfer of real rights, the delivery is necessary.
Consent is sufficient in credit.

Question 9

Differences between the real and credit rights re duration:

Answer 9

R: The exercise of the real rights consolidates them.
C: Exercise of credit rights extinguishes them.

Question 10

Differences between the real and credit rights re the form:

Answer 10

R: are subject to be registered in the Property Registry.
C: Exercise of credit rights cannot be registered.

Question 11

Types of rights:

Answer 11

a) Total or complete real right: right of property.
b) Limited real rights: Extend only to particular faculties.

Question 12

What is a property right?

Answer 12

The right to enjoy and dispose of a thing with the only limits established by law. It is the broadest real right as it extends to all aspects of ownership.

Question 13

What are rights in someone else’s rights (Aka limited real rights)?

Answer 13

They only grant a partial power over a thing: only confer their holder a part of the faculties.

Question 14

Limited real rights of enjoyment:

Answer 14

1. Possession.
2. Usufruct.
3. Use.
4. Habitation.
5. Easements.

Question 15

What is a usufruct?

Answer 15

Grants a broad right of use and enjoyment of the thing, entailing the person holding it to receive all fruits of the assets in usufruct. It is the right to enjoy another person’s property under the obligation to preserve its forms and substance.

Question 16

What does use grant its holder?

Answer 16

Only in as much of the natural profits of a thing that belongs to someone else.

Question 17

What are easements?

Answer 17

It is the burden imposed upon a real p property for the benefit of another real property belonging to a different owner. (access, flowage, light and air).

Question 18

What are limited real rights of acquisition?

Answer 18

They grant their holder the faculty to bring a thing which belongs to someone else with the precedence to other.

Question 19

Types of limited real rights of acquisition:

Answer 19

1. Option: Grants its holder the right to buy the thing which is the object of the option contract within the agreed period and paying the price agreed.
2. First refusal: possibility to acquire a certain thing when its owner has decided to sell it.
3. Redemption: possibility to acquire a certain thing when it has already been sold to a third party for the price and on the same conditions as it was sold to such third party.

Question 20

What are limited real rights of guarantee?

Answer 20

They grant the faculty to sell a good in guarantee for the performance of an obligation. If the debtor does not perform the obligation guaranteed, the creditor can sell the thing to recover what was due to him.

Question 21

Explain briefly mortgage (limited real rights of guarantee):

Answer 21

security granted over immovable property providing a guarantee for the performance of an obligation.

Question 22

Explain briefly Pledge (limited real rights of guarantee):

Answer 22

Delivery of the movable property by the debtor to the creditor as a guarantee for the performance of an obligation.

Question 23

Owners rights in private property:

Answer 23

1. Disposition rights: right to transfer and to encumber.
2. Right to use and enjoy.
3. Exclusion rights: mark boundaries, build fences, etc. in order to impede other people enjoying it.

Question 24

Systems of acquisition of property:

Answer 24

1. Primary or original: obtained independently of a right of a previous holder.
2. Secondary or derivative: acquired based on a previous right and therefore, with the same characteristics as the previous holder’s right.

Question 25

How can you acquire property/real rights?

Answer 25

1. Occupancy.
2. Accession.
3. Usucapio.

Question 26

Explain occupancy:

Answer 26

Taking hold of a thing that does not belong to anybody (only applicable to movable goods).

Question 27

Explain accession:

Answer 27

The owner of a property becomes entitled to everything the property produces and to all that is added or united to it, either naturally or artificially. It entails a problem when someone builds a plot that does not belong to the builder. In principle, the building shall be considered to belong to the owner of the plot. However, if the value of the contraction is much bigger than the land and it was build in good faith, it belongs to the builder.

Question 28

Explain usucapio:

Answer 28

Acquiring property by the mere possession in the conditions and during the periods established by law.

Question 29

Requirements for usucapio:

Answer 29

1. The person taking possession alleging to be the owner.
2. He has to hold public, peaceable and uninterrupted possession of the thing, what means that it has to be continuous.

Question 30

Types of usucapio:

Answer 30

1. Ordinary usucapio.
2. Extraordinary usucapio.

Question 31

Explain ordinary usucapio:

Answer 31

Possession in good faith and with just title is required – uninterrupted possession in good faith.
Depending on the thing subject to the usucapio, the title of time (the time during which the thing has to be possessed) is:
a) Movable goods: 3 years.
b) Immovable goods: 10 years between persons present, and 20 between this absent.

Question 32

Explain extraordinary usucapio:

Answer 32

It does not need good faith and just the title in the possession of the thing to acquire the right.
Times of possession:
a) movable goods: 6 years.
b) immovable goods: 30 years.

Question 33

How can you lose property?

Answer 33

1. Ineffectiveness of the acquisition act.
2. Expropriation.
3. Abandonment of the goods by the owner.
4. Voluntary transfer of the goods.

Question 34

What are special properties?

Answer 34

Horizontal property, intellectual property, water, ports, minerals…

Question 35

What does the Property Registry do?

Answer 35

It gives publicity to real rights over immovable goods. It guarantees legal security. It is public.

Question 36

The registration in the property registry of a mortgage is declarative.

Answer 36

FALSE
It is constitutive.

Question 37

Registration of other real rights and legal acts over in the PR is compulsory-

Answer 37

FALSE