property law

Question 1

What is Property law?

Answer 1

tangible property and personal property are governed by this area of law

Question 2

tangible property

Answer 2

legally acknowledged right to resources, goods and land, including real estate

Question 3

intangible property

Answer 3

e.g. intellectual property

Question 4

Property rights

Answer 4

France and Germany: ownership and limited property rights (e.g.
usufruct, right of servitude)

Question 5

Personal rights:

Answer 5

contractual rights (Contract law), right to
payment of damages (Tort law), right to payment of a certain
amount of money as a resul of unjustified enrichment
(Unjustified enrichment)

Question 6

the principle of numerus clausus

Answer 6

Two aspects:
- Number and content of property rights
-The way in which these rights can be created, transferred or
destroyed

Question 7

Reasons behind the principle of numerus clausus

Answer 7

• Property law is mandatory law (e.g. lex rei sitae rule)
• Limitation on parties’ autonomy and authority to create new property rights

Question 8

Principle of transparency

Answer 8

• Specificity
• Publicity
• Policy

Question 9

publicity

Answer 9

• possession
• registration

Question 10

Ground rules of Property law

Answer 10

I. Nemo plus iuris rule
II. Prior tempore, potior iure rule
III. Limited property rights have priority over fuller rights (e.g.
usufruct and right of ownership)
IV. Special protection (e.g. revindication)

Question 11

Possession & Ownership: Civil law v Common law

Answer 11

Two main questions:
1. What is the difference in the approaches to ownership
and possession?
2. How is possession and ownership protected?

Question 12

Approaches to Possession & Ownership: Civil law

Answer 12

• Distinction follows Roman law: ownership and possession.
• Ownership and limited property rights = entitlements a person may have with respect to an object.
• Possession = factual control of an object.
• Function: to indicate the existence of property = makes it public & to prevent unlawful/violent behaviour to preserve the peace.
• French law > legal presumption that the possessor of a
  movable object is also its owner

Question 13

Approaches to Possession & Ownership: Common law

Answer 13

• No concept of ownership.
• Focus solely on the protection of possession.
• Fragmented approach: land and goods.

Question 14

Protection of Possession & Ownership in Civil Law Countries

Answer 14

Specific actions for the protection of possession (possessory actions):
- Aim = fast judicial protection against interference.
Specific actions for the protection of ownership (and
of the limited property rights):
- Vindication (rei vindicatio)
- The right of removal of actual interference & the right to an
injunction.

Question 15

Protection of Possession: Common law

Answer 15

• Mainly by tort law (property torts).
  -Primary remedy = attribution of damages.
  -Damages can be awarded even if there is no real damage to the property but the mere infringement of a property right.
  -Remedies follow the distinction between land
  and goods.

Question 16

Two Types of Interference

Answer 16

1. Dispossession of the holder of a property right and/or
   the possessor.
2. Disturbance of the enjoyment of the possession.

Question 17

Possession v Ownership: France
POSSESSION:

Answer 17

Art 2255 Cciv =
definition & role of
possession
- Concerns corporeal
objects and claims
incorporated in
corporeal title.
- Possession extends to
movable and
immovable property
but with quite different
effects.
- Regulation of the protection
of possession (Arts 2278 Cciv)

Question 18

Possession v Ownership: France

Answer 18

OWNERSHIP:
- Article 544 Cciv:
“Ownership is the right to enjoy and dispose of objects in the most complete manner, provided they are not used in a way prohibited by statutes or regulations”.
- Protection:
- Vindication.
- Injunction

Question 19

Possession - definition

Answer 19

Article 2255 Cciv:
Possession is the detention or enjoyment of a thing
or of a right that we hold or that we exercise by
ourselves, or by another who holds it or who
exercises it in our name.

Question 20

Definition and Types of Possession: France

Answer 20

Possession requires 2 factors:
- Actual control of the object (“corpus”);
- The will to hold the object as an owner (“animus”).
- Possession terminates when animus or corpus is lost.
- Important: if only control (without will) = detention.
- Detention is different than possession (detentor cannot
acquire ownership by acquisitive prescription). Article 2266 Cciv
- Art 2256 Cciv: always presumption to possess for oneself and in the capacity of an owner.
NOTE: Acquisitive prescription of movables –
Articles 2276 and 2277Cciv.

Question 21

Protection of Possession (Possessory Actions): France

Answer 21

• Presumption that possessory actions relate to immovable
  objects (historically - 3 types/ amendments 6 May 2017).
• Protection of possession of a movable object = Article
  2276 Cciv (la possession vaut titre) = as an owner.
• If the possessor is also an owner, he/she can choose
  between possessory protection and vindication of
  the object.
• Acquisitive prescription of movables (Art. 2276
  and 2277 C.civ.) – the balance of interests:
• Protection of possessor in good faith (Art. 2277 C.civ.)
• Protection of owner (Art. 2276 C.civ.)

Question 22

Protection of Possession: England and Wales

Answer 22

Available instruments differ with respect to an object:
- Different protection of the possession of land;
- Different protection of the possession of goods.
What about remedies?
Possibility of the remedies of specific recovery that
resemble the remedies available to owners in civil law
countries:
- Specific recovery of the possession of land.
- Specific recovery of the possession of goods.
- Injunction.
What is the difference then?
- Discretion of courts.
- They all fall within the domain of tort law.

Question 23

Protection of Possession of Land: England and
Wales

Answer 23

Dispossession:
- Holder of a title to land (exclusive possession) has right to recover
possession from a person who entered the land without his/her
consent: (1) self-help or (2) obtain order from the court that
possession of the land be returned to him/her.
- Recovery of possession = roots in feudal law.
Other interference:
Trespass to land: Torts of trespass to land
- Defendant has entered the land without the consent of the titleholder or actual possessor; Damages + injunction to prevent future
interference.
Nuisance: Indirect interference, when pollutants (smoke,
wastewater, smells, noises) cause a disturbance to the use and
enjoyment of a land.
- Remedies: damages, injunction, and very limited form of self-help.