Property Law Flashcards
Property Rights
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
Why Property Rights?
Facilitates freedom of ownership -> establishes that all objects are freely transferable unless explicitly prohibited
Civil Law Property
Unitary System -> one system for all properties
there is always only one owner
Ownership
property right that a person has in respect to an object
immaterial relationship = no need for physical equivalent
Possession
factual and physical relationship between person and object
Detentorship
detentor exercises factual control over a good but on behalf of sb else -> recognition
Common Property Law
fragmented system between LAND LAW (immovables) and PERSONAL PROPERTY LAW (movables)
land law (immovables)
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
Personal Property Law
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
Equity
Origion of Trusts = management powers and enjoyment rights are sperated and divided between a manager (trustee) and a beneficiary owner
Secondary property rights
not ownership
1)to use
2)security
Secondary Property Rights to Use
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
Types of sec prop security rights
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
Paritas creditorum
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
principle of numerus clausus
only limited number of property rights are recognized and can be created by persons -> no new types
-> because people could become too powerful otherwise
principle of specificity
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)
principle of publicity
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
Nemo Dat rule
nobody can transfer a property right they didn’t have themselves first
-> competence to dispose of a right is needed
prior tempore rule
older property rights are more powerful than new ones -> exercise right of pledge
creation of property rights
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
accession principle
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
prescription
after a long period of not objecting the possessor, possessor acquires a primary right
transfer
two requirements -> clear that former owner has lost property right and latter has acquired it; both parties agree on property right being passed on
consensual system
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
tradition system
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
termination
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
