Unit 21- Property protection, property interests

Question 1

How is exclusivity of ownership created

Answer 1

Exclusivity of ownership is created by the legal remedies through which the owner may be protected

Question 2

What are the two primary legal remedies for protecting ownership rights?

Answer 2

1. Recovery action: the right of an owner to asset his right and to claim the return of the object
2. Injunctive action: the right of the owner to prevent or remove any interference with his proprietary interest

Question 3

Difference between injunctive and recovery action

Answer 3

An injunctive action focuses on preventing harm or interference while a recovery action aims to recover or regain possession of property that has been wrongfully taken

Question 4

What are primary property rights?

Answer 4

these rights encompass the bundle of powers that the holder may have on goods
- ownership
- intellectual property

Question 5

What is second property rights?

Answer 5

These rights encompass only some of the powers that the owner may have on goods

• secondary right of use
• secondary security rights

Question 6

What are limited property rights?

Answer 6

Rights that are granted to individuals or entities over a property, but are not as extensive as full ownership rights. They place certain limitations or restrictions on the use, enjoyment, or disposal of the property

Question 7

What is the french theory of ‘demembrement de la propiete’?

Answer 7

The creation of limited rights by the owner may be understood as a process of subtraction of a particular right from her original bundle, and granted to third parties

Question 8

What are the two categories of limited property rights

Answer 8

• Limited property rights of enjoyment
  a. Servitudes
  b. Usufruct
  c. Use/ habitation
• Limited property rights of security
  a. hypothec
  b. pledge

Question 9

What are the common features of limited property rights

Answer 9

• Protection: they can be enforced against any other person in the world
• Run with the asset: if ownership is fragmented, limited property rights will bind subsequent owners to the asset
• Numerus clausus: limited property rights are provided only by the law

Question 10

What is a servitude?

Answer 10

A predial servitude consists of a burden imposed on a land (servient) for the utility of the other land (dominant) belonging to a different person

Question 11

In a servitude which is the dominant land and which is the servient land?

Answer 11

Dominant land: the piece of land which benefits from the establishment of a servitude

Servient land: the land subject to the burden

Question 12

What is an affirming servitude?

Answer 12

The owner of the dominant land may do something on the servient land

Question 13

What is an example of an affirming servitude?

Answer 13

Servitude of way: The dominant land owner may pass through the servient land to have access to the public road

Question 14

What is a negative servitude?

Answer 14

The owner of the dominant land may prevent something from being done on the servient land

Question 15

What is an example of a negative servitude?

Answer 15

Servitude to not build on land: the servient land owner may be barred from erecting new buildings which would obstruct the dominants land owner’s view