Property Law Flashcards
Absolute rights
Absolute property rights pertaining to the object of the right
Erga omnes
Absolute rights = against everyone
Types of objects
Tangibles -> Land, building
Intangibles -> Trademarks, claims
Droite de suite = “Right to follow”
The owner does not lose his right if it is not in its possession
-> Right follows the object!
Freedom of ownership
Establishes that objects are free transferable unless explicitly prohibited
- Civil law property
Give 3 characteristics:
- Unitary system (no distinction btw movables and immovables)
- Only ONE owner
- Away from feudal system
- Civil law property
What are the 3 possible relations to the object in question?
- Ownership
- Possession
- Detentorship
Explain ownership
Property right of an object
–> Immaterial relation, no need for factual possession
Explain possession
Factual control/ relation btw person and object
Explain detentorship
Detentor has factual possession over an object, but recognizes he’s doing it on behalf of the owner
Right of ownership =
Most comprehensive right
Vindication
The right holder can reclaim factual possession of the object of his right
- Common Law PL
Give 3 characteristics
- Feudal system
- Fragmented system (distinction btw movables and immovables)
- Can be more than one owner
Land law -> IMMOVABLES
What are the two types of rights that remained?
- FEE SIMPLE
- LEASEHOLD
What is a fee simple? Specify on time duration.
Absolute in possession
–> Most extensive right
Unlimited duration on time
What is a leasehold?
The fee term for a number of years
–> Secondary property right
- Holder derives, grants exclusive possession
Personal property law (MOVABLES)
What are the objects that can be owned?
Corporeal (chattels = goods)
Incorporeal (Claims)
What is the most extensive right in personal property law?
The TITLE or ENTITLEMENT
Relativity of title
When more than one person is entitled to the same chattel
–> Stronger entitlement receives possession
PRIMARY RIGHTS: Distinction btw Common and Civil Law.
Most extensive right
Civil law: Right of ownership
Common law:
- Movables: ENTITLEMENT
- Immovables: FEE SIMPLE
Do primary property rights face limitations? By who?
They face limitations by public law:
- Immovables: Will need permit from government to be able to manipulate his piece of land
Can also face limitation by private law
- Movables: Permission to abuse an object not always possible
–> When it is valuable to society
SECONDARY RIGHTS: Main definition.
Permissions and competences of owner may be exercised by the holder of the secondary right INSTEAD/ NEXT TO the owner
SECONDARY RIGHTS: Types.
- To use:
1.1 Usufruct
1.2 Servitude - Security rights:
2.1 Right to pledge
2.2 Right to hypotec
Secondary rights TO USE: Main defintion
Holder of this right may use the object for a limited duration of time
TO USE: Types
Usufruct
Servitude
TO USE: Usufruct
Person holding this secondary right has the right to enjoy the property as long as they want (usually life).
Owner -> Bare ownership
TO USE: Servitude
Example: Pathway on a driveway that becomes available for “everyone”
Longer time than ususfruct
Secondary SECURITY rights: Main definition
Created to secure the payment of a monetary claim
–> Giving the holder of the claim the power to take possession if the debtor fails to pay the loan
SECURITY: Two types (immovables vs movables)
Immovable objects = mortgage or hypothec
Movable objects = Right to pledge
Paritas creditorum
Holder of secondary right receives immediate settlement of their credit if the debtor dies
“If the debtor is not able to pay, creditors have the right to paritas creditorum”
Equality of creditors
Claims of creditors are equal in rank. Creditors are entitled to amounts of money from the estate in PROPORTION to their clamis
Numerus clausus principle
Only a limited number of property rights can be recognized
Principle of specificity
A property right has to be bound to a specific good or land
Principle of publicity
Everybody has the right to know who holds the primary right to an object
Land: Land registry
Movables: Factual control
Fungible objects: EXCEPTION (Money in bank)
Nemo Dat Rule
Nobody can transfer a right that he did not have himself in the first place
Prior tempore rule
Older property rights trump over newer ones
How can property rights be created (5)?
- Occupation
- Creation
- Accession
- Prescription
- Mixing
Accession
What belongs to a land becomes part of it and is not owned by the owner of that land
Prescription
Possessor in good faith did not know that object had an owner and has it for a long time
What are the 2 requirements that have to be met in order to conclude a transfer of a property right?
- It must be clear btw transferor and transferee
- Publicity: Third party involved also needs to know
What are the 2 systems in tranfers?
- Consensual system
- Reach consensus
–> For immovables: need for a notarial deed - The tradition system
- Requires a contract and a special act to transfer the property right
When are property rights terminated?
- Object stops to exist
- Object still exists:
- Owner abandoned its right
- By operation of law: Prescription, usufruct when death, leasehold when time has passed)
-By an agreement btw parties
