Week 1 Flashcards
What is property law?
It concerns rights that a person has v considerable group of other persons concerning an object
Erga omnes
These rights apply v everyone
Absolute rights
Unlike personal rights (apply btw specific people), these apply more broadly
Droit the suite
If a right-holder’s object ends up with another person, the right-holder can demand its return from that person
droit the preference
a right that takes precedence over personal rights
Numerus clausus principle
It limits the number and type of property rights
Test of transparency
- principle of specificity: object has to be clearly defined
-publicity principle: information on property rights should be available for public knowledge
Lex Rei Sitae
the law where the object is located is applied
Nemo Dat Rule
You cannot transfer more rights than you actually have (exception: good faith)
Prior Tempore Rule
older rights usually take priority over newer ones
Accessority Rule
If Sarah takes out a loan and secures it with a mortgage on her house, the mortgage only exists as long as the loan is unpaid. Once Sarah repays the loan, the mortgage is canceled because the security right (the mortgage) is tied to the existence of the loan (the debt).
Corporeal objects
physical things. They can be touched
Incorporeal objects
non-physical things
Possession
factual control of an object, regardless of ownership
Different functions of possession
- presumption of ownership
- preservation of peace and order
- it is a method to satisfy the publicity requirement
- if one possesses something for a sufficiently long period of time, they become the owner
ownership
full legal title to an object (usus, fructus and abusus)
Rei Vindicatio
The owner’s right to reclaim an object from anyone who possesses it without permission
Actio Negatoria
injunction that allows an owner to prevent interference by 3rd parties
Doctrine of Abuse of rights
if the party acts with the sole intent of causing a nuisance to their neighbor
Neighbour law
the owner is forced by law to tolerate the neighbor entering his land
(FR: legal servitude)
Unitary ownership
One singular right over an object, held by multiple people
Co-ownership
There is always 1 ownership right. Equal access and entitlement (each co-owner can use and benefit from the entire property, though their share determines what they would receive If the property is sold %%%%)
Caquelard case
Fragmented ownership-> separate ownership rights over different aspects of the same object (e.g. trees vs land). It is v the principle of unitary ownership
Fragmentation of ownership
2 or > people claim the right of ownership on the same object with different content
Secondary property rights
They offer limited entitlements over someone else’s property without transferring full ownership
Real servitude
Right that allows the owner of one property (the dominant land) to use a part of a neighboring property (the servient land) for a specific purpose. Right is attached to the land (even if u sell the land, the servitude stays)
Real Servitude (civil law)
FR: legal servitude
GR and NL: limitation of ownership
different ways to create a servitude
- contactual agreement (contract law)-> not erga omnes, however freedom of contract, quick and easy
- right of servitude (property law)-> erga omnes, it pertains to the land
Personal servitudes
property rights that attaches to a person
- usufruct
- quasi usufruct
- to use and habitation
Right of usufruct
It is connected to the life of a person. The right to use and enjoy a thing of the owner as well as a right to take the fruits this thing produces. The person has some obligations
Bare ownership
The owner of the thing (right of usufruct). He cannot use, enjoy or benefit from the thing. He still has the right to sell or transfer the property.
Quasi-usufruct
it applies to consumable items (e.g. food). Things that cannot be used without altering or consuming them
Right to use and habitation
They are attached to the person
- to use: gives another the right to use land (both immovables and movables)
- habitation (only on immovable): right to use a building to live in
Right of superficies
it allows some division of property without violating unitary ownership (e.g. building rights over someone else’s land). Exception to the principle of accession
Principle of accession
it is not possible to separate the land with the thing on it
UK Secondary property rights
Lease-> usufruct
Easement-> servitude
Trust (UK)
Settlor-> Trustee-> Beneficiary
Equity’s darling
Requirements:
- good faith
- paid for it
- did not know act the trust
Trust (GR)
through contract law with property effects
Treugeber-> Treuhänder-> Beneficiary
Trust (FR)
contractual agreement
Constituant-> Fiduciarie-> Beneficiary
Trust (NL)
NOT ALLOWED
Consensual Transfer System
person becomes owner of an object without delivery of possession being needed (solo consensu rule)-> contract suffices to pass ownership
Traditio Transfer system
delivery+separate real agreement
Causal Transfer System
Transfer is valid only if the underlying contract is valid
Abstract Transfer System
Ownership transfer does not require the validity of the contract
NL
Traditio and causal system
FR
Consensual causal system
GR
Tradition abstract system
Positive registration system
Active: registrar (judge) checks everything. State assumes liability for errors. GR+UK
Negative registration system
Passive: registrar only verifies formal aspect (e.g. identify). No state liability for errors. NL+FR
Community ownership (civil law)
A community owns the object in whole-> all individuals are co-owners
- if it is a few people you list all the names in a deed
- if it is a lot you make a company and then state that the company (all the members are part of) own the object
Community ownership (common law)
Trust.
Beneficiary: owner in equity
Trustee keeps ownership of land->owner in common law
Individual cannot be all three. Individual cannot be trustee & beneficiary
Subtraction model
FR & NL.
The owner’s full rights are reduced when they create limited rights, as these rights are “subtracted” from ownership.
Limitation model
GR.
Ownership remains absolute, but specific rights (like use or exclusion) are limited by the creation of a limited real right.
Paritas creditorum
in case of insolvency, all creditors should be treated equally
Personal security rights
involves a third party (person) who promises to be liable for the debt of the principal debtor.
Property security rights
it gives the creditor a specific right over a particular property or asset of the debtor.
