property law Flashcards
What is Property law?
tangible property and personal property are governed by this area of law
tangible property
legally acknowledged right to resources, goods and land, including real estate
intangible property
e.g. intellectual property
Property rights
France and Germany: ownership and limited property rights (e.g.
usufruct, right of servitude)
Personal rights:
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)
the principle of numerus clausus
Two aspects:
- Number and content of property rights
-The way in which these rights can be created, transferred or
destroyed
Reasons behind the principle of numerus clausus
- Property law is mandatory law (e.g. lex rei sitae rule)
- Limitation on parties’ autonomy and authority to create new property rights
Principle of transparency
- Specificity
- Publicity
- Policy
publicity
- possession
- registration
Ground rules of Property law
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)
Possession & Ownership: Civil law v Common law
Two main questions:
1. What is the difference in the approaches to ownership
and possession?
2. How is possession and ownership protected?
Approaches to Possession & Ownership: Civil law
- 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
Approaches to Possession & Ownership: Common law
- No concept of ownership.
- Focus solely on the protection of possession.
- Fragmented approach: land and goods.
Protection of Possession & Ownership in Civil Law Countries
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.
Protection of Possession: Common law
- 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.
Two Types of Interference
- Dispossession of the holder of a property right and/or
the possessor. - Disturbance of the enjoyment of the possession.
Possession v Ownership: France
POSSESSION:
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)
Possession v Ownership: France
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
Possession - definition
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.
Definition and Types of Possession: France
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.
Protection of Possession (Possessory Actions): France
- 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.)
Protection of Possession: England and Wales
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.
Protection of Possession of Land: England and
Wales
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.
