Property Law

Question 1

Property Rights

Answer 1

absolute right, erga omnes (=against everyone)

pertains to the object of the right -> object can be tangible (land, building) or intangible (trademark)

“right to follow”

owner doesn’t lose its right when the object is not in his possession, he can exercise his right against the possessor

right of ownership is most comprehensive primary right

Question 2

Why Property Rights?

Answer 2

Facilitates freedom of ownership -> establishes that all objects are freely transferable unless explicitly prohibited

Question 3

Civil Law Property

Answer 3

Unitary System -> one system for all properties

there is always only one owner

Question 4

Ownership

Answer 4

property right that a person has in respect to an object

immaterial relationship = no need for physical equivalent

Question 5

Possession

Answer 5

factual and physical relationship between person and object

Question 6

Detentorship

Answer 6

detentor exercises factual control over a good but on behalf of sb else -> recognition

Question 7

Common Property Law

Answer 7

fragmented system between LAND LAW (immovables) and PERSONAL PROPERTY LAW (movables)

Question 8

land law (immovables)

Answer 8

FEE SIMPLE: absoulte in possession

most extensive right a person can hold

entitles the holder for an unlimited duration of time

LEASEHOLD: fee for a term of years

secondary property right

holder can derive -> exclusive possession

Question 9

Personal Property Law

Answer 9

objects that can be owned
corporeal (chattels = goods)
incorporeal (choses in action = claims)

Right of exclusive possession = title or entitlement

most extensive right (exclusivity)

Relativity of title: possibility of more than one person being entitled to the same chattel -> person with strongest right gets possesssion

Question 10

Equity

Answer 10

Origion of Trusts = management powers and enjoyment rights are sperated and divided between a manager (trustee) and a beneficiary owner

Question 11

Secondary property rights

Answer 11

not ownership
1)to use
2)security

Question 12

Secondary Property Rights to Use

Answer 12

Usufruct: duration of a lifetime, owner holds bare ownership -> only abusus, right follows object -> if it is sold the usufructurer still has usus and fructus rights

Servitude: can be created on one piece of land for the benefit of another piece of land (right of way) -> if land is sold, new owner is still bound because right exists on the land

Question 13

Types of sec prop security rights

Answer 13

right of pledge (movables and particular kinds of rights)
right of hypothec/ mortgage (Immovables and special movables)

-> invalidates paritas creditorium because many creditors find it uncomfortable and will therefore not allow credits

Question 14

Paritas creditorum

Answer 14

if debtor isn’t able to pay money back

creditors are entitles to amounts of money from estate in proportion to their claim

A owes 1 to B and 3 to C but only has 2 left -> B gets 0.5 and C gets 1.5

Question 15

principle of numerus clausus

Answer 15

only limited number of property rights are recognized and can be created by persons -> no new types

-> because people could become too powerful otherwise

Question 16

principle of specificity

Answer 16

property right has to be bound to a specific good or land

-> in order to be able to tell who it belongs to (f.e. when someone needs a pledge)
-> not possible in fungibles (f.e. money)

Question 17

principle of publicity

Answer 17

everyone has right to know who holds property right over an object
-> because of droite de suite, f.e. hypothec stays on the house even after having been sold

LAND
Negative systems (cadastre systems -> registrar registers deed only with marginal check of formal validity of contract)
Positive systems (title registry systems -> registrar actively checks the content)

MOVEABLES
Publicity of ownership in form of possession

Question 18

Nemo Dat rule

Answer 18

nobody can transfer a property right they didn’t have themselves first
-> competence to dispose of a right is needed

Question 19

prior tempore rule

Answer 19

older property rights are more powerful than new ones -> exercise right of pledge

Question 20

creation of property rights

Answer 20

occupation -> possession by finder when an object is found without owner

creation -> creator becomes owner over the new object

mixing -> primary right arises by the previous holder of the object

Question 21

accession principle

Answer 21

which belongs to land shall become part of land; if you combine land and bricks to build a house, the prior owner of the land becomes owner of house

Question 22

prescription

Answer 22

after a long period of not objecting the possessor, possessor acquires a primary right

Question 23

transfer

Answer 23

two requirements -> clear that former owner has lost property right and latter has acquired it; both parties agree on property right being passed on

Question 24

consensual system

Answer 24

requires consensus to transfer a property right between seller and buyer -> conclusion of contract transfers the property right

moveable objects -> buyer becomes owner immediately after conclusion of contract

immovable objects -> property right is transferred but only effective between parties -> only with a deed will the transfer be effective against world

Netherlands and France

Question 25

tradition system

Answer 25

requires besides a contract of sale a special act to transfer the property right

contract of sale serves as starting point for transaction but doesn’t have an effect -> known as the title

title: reason for a property right to be transferred

Germany and England

Question 26

termination

Answer 26

object on which property right exists is destroyed -> car caught fire

property right ends even though object itself continues to exist -> catch fish but let it go

termination by operation of law

termination by agreement