Property Law 

What is property ?
Immoveable (houses and lands) and movables objects
Tangible/corporeal objects intangible/incorporeal objects (no actual physical existence)

Objects what you can touch

Things what you can’t touch

For something to be a property, it needs to be able to be controlled by human hands

-Oceans are not properties
-BUT if you take an ocean’s water and you put it in a container, it becomes
yours.

Property law is the law that governs all those objects, it defines the kind of relationships that
we have with those objects.

Termes a maitriser:
Ownership: is the property right that a person has in respect of an object. (can vindicate)

Detentorship: factual control and relationship between object and individuals, recognizes
that someone else is the owner.

Possession: factual control over the object but you do not recognize others’ rights as you
hold them for yourself, you treat the object as if you are the owner. (can be on good faith or
on bad faith)
-possession by means (when you lend your bike for ex: you possess by means as the
other has indirect rights)
-possessions by non means (you’re directly possessing)
A possessor in good faith who is stolen can file for claim for “Tort”.

Rules governing:
-Creation
-Transfer
-Destruction

Property rights
Relative rights: rights against a particular person
Absolute rights: rights not against a particular person
 These pertain to the object of the right: maybe tangible or intangible
Absolute rights in private law are called property rights.
“Erga omnes”: refers to an effect against everyone (the right works towards everyone)
Droit de suite: immediate consequence of the fact that property rights have effects against
everyone

Why property rights?

Freedom of ownership: property rights facilitate free circulation of goods by enabling goods
to exchange owners
Tragedy of the commons: ex. overfishing, has to be some regulation on the “commons”

Property rights in civil/common law

Different types:
 Primary property rights (right of ownership)
 Secondary property rights (to use)
 Secondary property security rights
 Secondary rights to acquire a property right

Civil property law

Possession not the same as ownership, this has a factual relationship between thing and person
Detentorship: exercises factual control over a good but not on behalf of himself, recognizes
the owner (ex. leased good)
Feudal system was one of property law where the Lord granted feudal rights to a vassal
French revolution meant change of the system of landholding (unitary system of property law)

Ownership
 Art. 544 of the French Code Civil states that “Ownership is the right to enjoy and dispose
of things in the most complete manner, provided they are not used in a way prohibited by
statutes or regulations”.

- The French definition of ownership extends to things (biens), which includes not
only corporeal objects but also incorporeal objects, such as claims. It is therefore
possible to own a claim under French law.

 Paragraph 903 of the German Civil Code states:

“The owner of a corporeal object can, when this does not interfere with the law or other rights
of third parties, do with the object what he wishes and exclude others from interfering. The
owner of an animal must, in the exercise of his powers, obey the special provisions for the
protection of animals”.

 Art. 5:1 of the Dutch Civil Code states:

1. “Ownership is the most extensive right which a person can have in a corporeal object”.
2. “To the exclusion of all others, the owner is free to use the object provided that this
use does not violate the rights of others and that it respects the limitations based upon
statutory rules and rules of unwritten law”.
3. “Without prejudice to the rights of others, the owner of the object becomes owner of
the fruits the object produces, once separated”.

-The German and Dutch definitions restrict the concept of ownership to

corporeal objects: ownership of a claim is therefore impossible under German
or Dutch laws

-Unitary system: one system of property law that applied to land and goods alike (ex:
the right of ownership is the same right of owner- ship regardless of whether it is held
on a car or on a piece of land)
 -Vindication: legal action in civil law tradition by which a right holder can reclaim
possession of the object of his right (right to get it back)
PROTECTS THE RIGHT OF OWNERSHIP
In the civil law tradition, there can be only one right of ownership in respect
to an object. If one person holds the right of ownership of a good, then all other
persons are not owners. Ownership is therefore a matter of all or nothing, not a
matter of degree as it is in common law where different per- sons can have
different titles to a good.

-Co-ownership: more than one person owning single right of ownership

-Tort of Conversion: generally, forces the tort-feasor, in this case the person who
interferes with someone else’s property right, to choose between paying damages or
returning the object or ending the interference with it.

Common Law Property Law

Comprises two subsystems in the narrow sense and equity
-Fragmented system: land law and “what is not land”
-Fee simple (absolute in possession) aka freehold: entitles the holder to exclusive possession
for unlimited amount of time
-Term of years aka leasehold: From the fee simple, the holder can derive a secondary property
right in the form of a fee for a term of years or, in short, a term of years or leasehold, granting
exclusive possession to someone else for a limited duration of time.

Personal Property Law

-Title: primary right, short for “entitlement”: right of exclusive possession to a chattel
(=goods)

 Relativity of title: it is possible that more than one person is entitled to the same
chattel. If several persons who are all entitled to the same good all claim possession over the
good, the person with the stronger entitlement will receive possession.

-Equity: second system of law that corrects the strict application of the common law: equity is
important to property law as it is the origin of trusts.

-Trust: In a trust, management powers and enjoyment rights relating to property are
separated and divided between a manager (trustee) and one or more beneficiaries (beneficiary
owners).

-Primary rights to use and for security Of course, this does not mean that the holder may do
everything; there are limitations
 -Limitations: ex. holder of a primary right of a monument cannot alter it w/o
permission from the government, purpose for which a building is used cannot be
changed without a special permit.

Primary right for security purposes

“Paritas creditorum”: equality of creditors
-« Les biens du débiteur sont le gage commun de ses créanciers, et le prix s’en
distribue entre eux par contribution, à moins qu’il n’y ait entre les créanciers des causes
légitimes de préference »

Personal security: one person undertakes the liability for someone else’s debts
Property security: goods of a person can be sold off (usually be debtor himself) to pay the
debt
Reservation: ex. seller may reserve his primary right until the payment of the purchase price
Fiducia cum creditore: transfer of ownership for security purposes

Secondary property rights (using/enjoying an object owned by someone else)

-“Usufruct”: right to use and enjoy an object owned by someone else
-Use it how you want but you’re not the owner: exclude the owner to use it.

Secondary rights to use entitle the holder to use the object for a limited amount of time.
Servitude secondary rights: limits ownership of the land on which servitude runs, owner and
other person share : owner is not excluded (ex: walking on your neighbor’s property to reach
road)

Secondary security rights: created to secure the payment of a claim

-Right of pledge which can be created on most moveable objects (jewelry or cars) and
on particular kinds of rights.
- Right of hypothec/mortgage which can be created on immoveable objects (land and
all that is attached to it, like houses) and on special moveable objects (ships, planes,
boats))
-Security rights here are like insurances

Usus (right to use), fructus (right to enjoy the benefits that your property gives you), abusus
(you can put limitations to the rights)

Principles of property law

The principle of “Numerus clausus”: concerns the types of property rights that can be created,
not a limitation on the number of property rights
 Principle is that parties themselves are restricted in their freedom to create new types
of property rights
 Only a certain amount of property rights can be created under an

Principle of specificity: property right should be clear in respect of which good/land the
property right is created on.
  Droit de suite: property rights follow the objects on which they rest, can be invoked
against every possible holder of the object.
 Droit de suite is a consequence of « erga omnes »

Principle of publicity
 Therefore, property rights should, in principle, be publicly knowable.

For Land: publicity realized through land registry

Two types of registration systems:
(Registrar=an official responsible for keeping a register or official records)

-negative (operate on the basis of simple registration of deeds)

and
-positive (registrar actively checks the content of the deeds offered to him)

“Nemo dat”: nobody can transfer a property right that he did not have in the first place
“Prior tempore”: older property rights trump newer ones.

Vindication: owner is restored in factual power over the object that he owns.

Prior Tempore Rule:

-In case there is a conflict between several property rights, such as when there is more
than one hypothec on one piece of land:
-The holder of the older hypothec will get paid first from the proceeds of the
land, and the holder of the second right comes after the first hypothec holder (but
before the creditors who do not have a property right on the land).
The same holds for the right of pledge.

Creation: occurs when sufficient labor has been invested in the new object
 Mixing: when two or more objects mix, new primary right arises (ex: If money from
different persons is collected in a bag, the total amount probably belongs to the
original owners together)
 Occupation: when an object that previously belonged to no one is found and taken into
possession by the finder (ex: while fishing, hunting)

Accession: The acquisition of title of personal property that is attained through the process of
putting labor or raw materials into the improvement of the personal property.

Possession: The exercise of factual power for oneself, for a long period of time.
-Possessor in bad faith
-Possessor in good faith

Transfer:
 Two requirements must be met when a property right is transferred:
 Must be clear between the two that the former has lost the property right
 Should be known to public who is the holder of the property right
Consensual system: requires consensus to transfer a property right between the seller/buyer
this means that the conclusion of the contract of sale will transfer the property right from the
transferor to the transferee or acquirer.
Used in France, Belgium and England

Tradition system: requires a contract of sale and a special act to transfer the property right. Ex
Germany

Property agreement: needed for transfer of possessions, for case of immovables contract of
sale, concluded deed required

Termination:
 Object on which a property right rests is destroyed or ceases to exist independently
OR
 Property right to an object ends, even though object continues to exist
(waived/abandoned by the owner)
ALSO BY
 Operation of law: This happens, for instance, if the title on a piece of land is lost
because of prescription.
-After 30 years or a long duration of time for example without a claim of
property rights.
AND
 By agreement between the parties involved.

If the holder dies, his right of usufruct dies with him.

EU property law: The European Commission seeks to create common rules for internal
market
-mixed legal systems may be of help
-laws are in development

Security rights
1.Primary rights  ownership THEN AFTER
2.Secondary rights Paritas
 a.rights to use creditorum
-usufruct
-servitude
b. security rights
-pledge
-mortgage