21. Property protection and interests

Question 1

Ownership as an absolute right (erga ornemes)

Answer 1

1. Recovery action (Reivindicatio):

The right of the owner to assert his right and to claim the return of the object from any third party

2. Injunctive action (Actio negatoria):

The right of the owner to prevent or to remove any interference with his proprietary interests

Question 2

Recovery Action: Hellot v. Leclecr (Facts)

Answer 2

1. Hellot and Leclerc owned two adjacent buildings separated by a wall
2. In 1819 Leclerc demolished the wall and erected a new building
3. Hellot sued Lecrlerc, indicating that the new building encroached on his property by 14 inches, destabilising it
4. Leclerc did not challenge the allegations, but replied that:
   
   • (i) Hellot’s building had fallen into ruin and could not be repaired because of legal restrictions;
   • (ii) Hellot has suffered only mininal losses while the obligation to remove his building would cause him considerable damage

Question 3

Hellot v. Leclecr (Ruling)

Answer 3

Recovery action: Hellot is entitled to request the removal of the encroaching building and the return of his property irrespectively of the state of the properties and of the actual harm suffered

Question 4

Recovery Action: Houssin v. Legrasse

Answer 4

• Lagrasse erected a fence which extended 0,50 cm into his neighbour’s property. The neighbour, Houssin, sued him
• The Court of Appeal, Paris, rejected the claim on the basis that such encroachment was negligible
• However, this decision was later overruled by the Cour de Cassation on the basis that no person may be deprived of their property and that the degree of the encroachment is of no relevance.

=> recovery action

Question 5

German Supreme Court, 1.12.1995 (Facts)

Answer 5

1. Claimants purchased a parcel of land situated next to the factory premises of the defendant, in order to build there an underground car-park.
2. Construction company detected considerable pollution by chemical substances. The disposal of the excavation waste led to high costs.
3. The claimant requested the payment of additional disposal costs. In the meantime the defendant company had gone bankrupt and was run by a liquidator.

Question 6

German Supreme Court, 1.12.1995 (Ruling)

Answer 6

Injunctive action:

The operator of a facility that caused soil contamination on a neighbouring piece of land remains responsible even after the shutdown, and can be ordered to remove the contaminants interfering with the owner’s peaceful enjoyment of his property

Question 7

German Supreme Court, 12.7.1985 (Facts)

Answer 7

1. The claimant owned a parcel of land with a house
2. The defendant, his neighbour, let his property to a couple of spouses, allowing them to run it as a brothel
3. The claimant believed that his under age daughter was morally endangered and that the value of his property was debased
4. The claimant demanded the defendant terminate commercial sex-working in his house

Question 8

German Supreme Court, 12.7.1985 (Ruling)

Answer 8

The claim was denied
Injunctive action does not cover property interferences of a genuine moral nature

Question 9

2 types of property interests

Answer 9

1. Primary property rights:
   
   • These rights encompass the full bundle of powers that they holder may have on goods
   • e.g. ownership, intellectual property
2. Secondary (lesser) property rights:
   
   • These rights encompass only some of the powers that the owner may have on goods
   • e.g. secondary rights of use, secondary security rights

Question 10

What are limited property rights?

Answer 10

Limited property rights are property rights with erga omnes effect derived from a right of ownership on a movable or immovable thing

fragmentation of ownership

The creation of limited rights by the owner may be understood as a process of subtraction of particular rights from his/her original bundle, and granted to third parties

Question 11

2 categories of limited property rights

Answer 11

1. Limited property rights of enjoyment grant to their holders specific, though limited (as compared to ownership) rights to make use of the object. In particular:
   
   • Servitudes (EASEMENT in common law)
   • Usufruct (comparable to the TERM OF YEARS in common law)
   • Use-Habitation
2. Limited property rights of security are created to secure the payment of a claim. They are usually created by the debtor/owner on an object in favor of his creditors:
   • Hypothec / Mortgage
   • Pledge
   • banks own the house but will not live in it with the creditor -> rights that protect security and privacy for creditors

Question 12

Common features of limited property rights

Answer 12

Protection erga omnes

• Absolute rights: they can be enforced against every other person in the world

Run with the asset

• If ownership is fragmented, limited property rights will bind subsequent owners of the (remaining rights in) the asset

Numerus clausus (numbered by the law)
• Limited property rights are provided only by the law: individuals cannot create new kinds of property rights

reason: can only made by the legislator because the certainty in the content of property law needs to be maintained

Question 13

(Predial) servitudes

Answer 13

predial: relating to land or the cultivation of land.

A predial servitude consists of a burden imposed on a land (Servient) for the utility of other land (Dominant) belonging to a different owner

dominant land: The piece of land which benefits from the establishment of a servitude

servient land: The land subject to the servitude, i.e. on which the “burden” is imposed (land that is limited)

e.g. right of way: allows the owner of the one piece of land (servient) to walk over the other piece of land, usually that of the neighbor, limited: can walk through but no picnic

Question 14

Servitudes as rights in rem

Answer 14

They insist on land / they do not bind the owner personally

If the owner of the servient land sells it, the servitude will remain on the land, binding the purchaser: it is a right in rem (‘servitudes run with the land’)

Question 15

Types of servitudes

Answer 15

1. Affirmative servitudes: The owner of the dominant land may do something on the servient land
   
   • E.g. Servitude of way: the dominant land owner may pass through the servient land to have access to the public road
2. Negative servitudes: The owner of the dominant land may prevent something from being done on the servient land
   • E.g. Servitude not to build on land: the servient land owner may be barred from erecting new buildings which would obstruct the dominant land owner’s view
     
     • obliged NOT to do something only

Question 16

Usufruct definition

Answer 16

a property right which grants its holder the right to use and enjoy a thing owned by someone else as well as to take the fruits that this thing produces

Question 17

Ownership of usufruct is divided between:

Answer 17

The usufructuary

• Right to use the good
• Right to receive its fruits (natural or legal)

The ‘bare’ owner

• Right to sell the good
• Right to receive back the good at the end of the usufruct period

Question 18

Usufruct - Selling of the ownership

Answer 18

In the commercial praxis, the sale of so-called bare ownership means that the owner will not sell «full» ownership, i.e. he wants the prospective owner to grant him a right of usufruct at the time of the transfer of ownership

Question 19

Usufruct is always limited in time

Answer 19

• life of the usufructuary (natural persons)
• fixed term of years (legal entity)

At the end of the usufruct, the right of ownership will become full and complete again

=> The main obligation of the usufructuary is thus to respect and preserve the economic substance and function of the good

• E.g. If an usufruct is established over a villa, the usufructuary may not transform it into a hotel,without the prior agreement of the owner

Question 20

Rights of the bare owner

Answer 20

• NO right to use and enjoy the good till the end of the usufruct period
• Right to sell persistent during the ufufruct period:
  
  • Bare owner cannot sell full ownership / just bare ownership Usufruct as a right in rem:
    
    • If the bare owner sells it, the usufruct will remain, binding the purchaser till it expires: (‘usufructs run with the land’)