Property law Flashcards
What are real rights?
right in or over an identifiable asset or group of assets
It follows the asset or group of assets, notwithstanding in whose hands the assets can be found. Only the legislator can create real rights
Name the different types of real rights?
- Ownership
- Real rights of use (easements)
- Real security rights
What is the real right of ownership?
Owner has legal power over a good (and perhaps also physical power).
In principle, it is the most important real right that can be vested in 1 person or different persons.
What is the difference between Ownership, Posession, and custody?
- Ownership: Owner has legal power over a good (and perhaps also physical power)
- Posession: Possessor has physical but not legal power over a good
- Custody: Custodian only keeps the goods for someone else for a certain time. As from the start, it is clear he will have to return the goods to the owner
Name two types of real rights of use (easements):
- Ground lease (emphytheusis)
- Rights of usufruct (civil law)
Name two characteristics of a ground lease?
Minimum and maximum period of time during which the holder can use the good, enjoy the benefits/returns
Holder has to pay a lease to the owner
Name three characteristics of the right of usufruct>
One separates bare ownership from the person who has usufruct
Person who has the usufruct can enjoy the benefits / returns during a certain period of time
Bare owner will automatically become full owner upon death or liquidation of the person who has the usufruct.
What are real security rights?
security rights which are attached to an object. (personal security rights are personal guarantors)
What are security rights?
right/claim which a creditor can exercise in case the debt is not repaid/performed by the debtor.
It is an accessory to the main claim the creditor has on the debtor. It can thus be executed only if debtor does not fulfill his obligations.
What is a pledge?
owner of an object entrusts the object to his creditor as security.
What are the three requirements of a pledge?
- Created specifically by contract
- Security right on movable goods
- It requires in principle the transfer of possession
Why does a pledge require the transfer of posession?
Why: Possession is an indication of ownership
- Protection against fraud
The debtor must give the object to the creditor until full payment of the debt
What is the difference between a possessory pledge and a non-posessory pledge?
non-possessory pledge: possession replaced by registration in public register.
possessory pledge: Possession by creditor serves as notice
What is ratio in terms of a pledge?
pledged object is needed to generate business and income
What is a lien in the terms of pledge?
right given to a creditor to detain goods of debtor until a debt is fully paid or performance of some other obligation is done. Created by a contract, law or by recognized customary practice.
- Possession of the good is required.
Security right on tangible goods
It terminates when the goods are no longer in the possession of the creditor.
What is a civil law mortgage?
security right on immovable property. Mortgagee is not the legal owner, he only has a right on the good, made known to the public via a public register, making it enforceable to all. Possession remains with the debtor. Formal contract is required.
What are the implications of a mortgage in regards to ownership?
A transfer of ownership to a creditor by way of security upon the express or implied condition that the ownership will be re-transferred to the mortgagor on repayment of the debt.
- Mortgagee (temporarily) becomes owner of object
What is a fiduciary ownership?
This means there is a division between legal and economic ownership. One has economic but not legal ownership
Does a mortgagee have ownership, possession or custody?
Mortgagee is entitled to possession, but mortgaged items often remains in hands of debtor/mortgagor
What is the real security right - Charge?
Rights of the creditor to have a designated asset or group of assets or all assets of the debtor appropriated to discharge the debt
Name two characteristics of a charge (real security rights)
- Neither transfer of possession nor ownership
- Debt is satisfied out of proceeds of sale of designated asset.
Name three ways a charge can be created?
- Statute (civil law countries)
- Trust
- Contract (UK)
Name the two types of charges?
- Fixed charge
- Floating charge
What is a fixed charge (real security rights)
attaches as soon as charge has been created or debtor has acquired rights in specific assets to be charged. Debtor cannot dispose of asset without consent charge/creditor, unless, by satisfying the debt.
What is a floatig charge (real security right)
changing assets: hovers over a designated class of assets in which the debtor has or will in the future acquire interests.
- Debtor can freely dispose of assets if he keeps the charge floating
- Upon certain events floating charges will crystallize and become a fixed charge
What is a right/claim on a person?
claim to transfer money to me, as a creditor, as payment for your debt
