Property Law

Front 1

Personal rights /
Rights in personam /
Relative rights

Back 1

Rights against a particular person

Front 2

Absolute rights /
Property rights

Back 2

Rest on something – the object of the right:

- tangible

- intangible

Front 3

Property Law

Back 3

Is the branch of Private law that governs property rights
– rights that legal subjects have on objects

Front 4

Property Rights
/ 2 characteristics

Back 4

- Effects erga omnes (against everyone)

- Droit de suite ('right to follow')

Front 5

Advantages of property rights

Back 5

1. Common property is wasted
2. Investing into own
3. Free circulation of goods

Front 6

Freedom of ownership

Back 6

All objects and things are freely transferred,
unless explicitly prohibited

Front 7

Property rights /subcategories

Back 7

1. Primary property rights (i.e. ownership)

2. Secondary property rights to use

3. Sec. prop. security rights

4. Sec. rights to acquire a property right

Front 8

Ownership

Back 8

A property right that a person has in respect to some object. An immaterial relation.

Front 9

Possession

Back 9

A factual relation between a person and an object.

Factual control in:
- good faith (possessor but not the owner!)
- bad faith (thief)

Front 10

Detentorship

Back 10

A detentor exercises factual control over a good,
but not on behalf of himself; he recognizes the right of the owner.

e.g. borrowing or leasing a good

*Not in Common law!!! (freehold, title, possession)

Front 11

Co-ownership

Back 11

Two or more people share the right of ownership

Front 12

Feudal system / Characteristics

Back 12

• system of the government
• system of property law (land holding)
• rights on the land -> duties for the vassal towards his lord
• property rights and personal rights closely interwoven

Front 13

Feudal system / After the French Revolution

Back 13

Separates property law from the law of obligations + Property law must be an autonomous field of Private law

Front 14

Unitary Civil law property systems

Back 14

One system of property law applies to land & goods alike

Front 15

Two types of feudal rights on land / England

Back 15

- fee simple absolute in possession / FREEHOLD

- fee for a term of years / LEASEHOLD

Front 16

Personal property law applies to / England

Back 16

- Chattels / goods

- Choses in action / claims

Front 17

Title

Back 17

Most important concept in personal property law.

A right to exclusive possession.

+ Right to exclusive possession of a chattel.

(The most extensive to a chattel – but: relativity of title)

Front 18

2 systems of Property law in England

Back 18

1. Land law

2. Personal property law

Front 19

Trust

Back 19

An institution in Common law systems.

The management powers and enjoyment right of a property are separated – divided between:

- a manager (trustee) and
- one or more beneficiaries (beneficiary owners)

Front 20

Primary property rights

Back 20

Most comprehensive property rights.
In civil law: right of ownership.

Front 21

Ownership

Back 21

German:
- The owner of a corporeal object can,
- when this does not interfere with the law or other rights of 3rd parties,
- do with the object what he wishes
- and exclude others from interfering.

Absolute right. All or nothing in CivLaw.

Front 22

Revindication

Back 22

Legal action from the Civil law tradition:

A right holder can reclaim the possession of the object of his right.

Front 23

Primary property rights in England /2 at law

Back 23

- Land law: fee simple absolute in possession / fee simple
- Personal property: title

Front 24

Fee simple

Back 24

Entitles the holder to exclusive possession for an unlimited duration of time.

Fee for a term of years (sec.pr.r.) can be derived from it

Front 25

Fee for a term of years

Back 25

Grants exclusive possession to someone else for a limited duration of time.

Front 26

Relativity of Title

Back 26

It is possible that more than one person is entitled to the same good.

If they all claim possession: the person with the stronger entitlement will receive possession.

Front 27

Paritas creditorum

Back 27

Equality of creditors

Front 28

2 forms of security / Property law

Back 28

- Personal security: A undertakes the liability for B’s debts

- Property security: The goods of a debtor can be sold to pay the debt

e.g. mortgage, pledge

Front 29

2 ways to use primary rights for security

Back 29

- Reservation of ownership (Civil) or
Retention of title (Common)

- Fiducia cum creditore (Transfer of ownership)

Front 30

Reservation of ownership (Civil)
or
Retention of Title (Common)

Back 30

By a clause in a contract for sale:

seller may reserve or retain his primary right
until the payment of the purchase price

Front 31

Fiducia cum creditore

Back 31

Transfer the right of ownership under a condition of resolution.

Front 32

Secondary property rights

Back 32

Permissions and/or competences (powers) which would normally belong to the holder of the primary right, but which can be exercised by the holder of the secondary right instead of, or next to the holder of the primary right.
E.g. usufruct (-> bare-ownership)

Front 33

Usufruct

Back 33

A right to use and enjoy an object
that is owned by someone else.

Front 34

Secondary property rights / Three kinds

Back 34

1. Secondary rights to use
2. Secondary security rights
3. Secondary rights to acquire a legal position

Front 35

Secondary rights to use

Back 35

A right that entitles the holder to use the object
for a limited duration of time.

- for a short period (e.g. usufruct)
- for a longer period (e.g. right of servitude)

Front 36

Right of Servitude

Back 36

Can be created on one piece of land on behalf of another piece of land.
Limits the ownership of the land.

E.g. right of way (droit de suite)

Front 37

Secondary security rights

Back 37

Created to secure the payment of a claim.
Usually on an object on which the debtor of a claim has a primary right.

/ Right of pledge & Right of hypothec

Front 38

Right of pledge / on

Back 38

- movable objects
- particular kinds of rights

Front 39

Right of hypothec / on

Back 39

- immovable objects
- special movable objects (ships, airplanes)

Front 40

Secondary security rights / Characteristics

Back 40

Held by the creditor of the claim (usually bank) and gives the holder the power to take possession of and sell the object,
to transfer the primary property right of the debtor to the new owner,
and to satisfy the debt from the proceeds.
Any surplus must be paid back to the debtor.
Gives priority in insolvency.

Front 41

Principles of Property Law

/ 7 /

Back 41

- Numerus clausus (limited
- Specificity
- Publicity
- Nemo dat (quod non habet)
- Prior tempore
- Specific protection
- Accessority

Front 42

Numerus clausus

Back 42

Only a limited number of types
of property rights are recognized.

An exhaustive list.
In contrast of the freedom of contract.

Front 43

Principle of Specificity / Property

Back 43

Clarity in defining to precisely which good or land the property right is created.

Not fungible objects

Front 44

Principle of Publicity / Property

Back 44

- Land: land registry / cadastre

1. Simple registration of deeds / negative system (no check of content of the deed)

2. Title registry systems /positive (check)

Front 45

Nemo dat (quod non habet) rule

Back 45

Nobody can transfer a property right which
he did not have himself the first place.

No competence to dispose of the property right.
/Right to usufruct can be transferred/

Front 46

Competence to dispose of property right

Back 46

1. normally the holder of the right has it
2. in case of insolvency not
3. others, like a holder of a right of pledge

Front 47

Pledge

Back 47

Bank will have the right to take possession,
and transfer ownership.

Front 48

Prior tempore rule

Back 48

Older property rights come before newer ones

Front 49

Specific protection

Back 49

Specific enforceability – duties which follow from the right can be enforced as such – action protecting:

Civil law: revindication
Common law: only land (for chattels: tort of conversion)

PR are also protected by Criminal law

Front 50

Tort of Conversion

Back 50

Common law

Forces the tortfeasor to choose between paying damages or returning the object or ending the interference with it

Front 51

Fungibles (Principle of Specificity)

Back 51

Objects which occur in masses
i.e. grain, sand, but also money

Front 52

Droit de suite (Principle of Specificity)

Back 52

Property rights follow the objects and can be invoked against every possible holder of the object

Front 53

Rule of Accessority

Back 53

Unbreakable link between a Property Security Right
and the claim for which the right was created.

- continued existence of the security right depends on the cont. existence of the personal right
- if the personal right is transferred the security right goes with the claim
e.g.: hypothec follows the claim from the loan contract (claims can be sold)

Front 54

Operative / interface rules (Property)

Back 54

Rules on how property rights can be created, transferred and destroyed.

Front 55

Creation of primary property rights / 4 ways

Back 55

1. Occupation – found, belongs to no one
2. Creation – didn’t exist before
3. Mixing
4. Prescription – factual power for a period of time

Front 56

Transfer of property rights / 2 requirements

Back 56

1. Clear to the transferor and the transferee that the former lost the property right and the latter acquired it

2. Publicity – known to the public or at least to the parties concerned

Front 57

Transfer of property rights / 2 ways in Europe

Back 57

1. Consensual system

2. Transfer system

Front 58

Consensual system
(Transfer of property rights)

Back 58

Only a consensus to transfer property
between the seller and the buyer.

/France, Belgium, England: for movables: immediately upon conclusion of the contract; for immov.:transfer will only have effect between the parties, after the deed against the whole world/

Front 59

Traditional system
(Transfer of property rights)

Back 59

Beside a contract of sale
a special act to transfer the property right is needed.


Traditio in Roman law.
Germany & the Netherlands
Contract to sale has no effect in property law – it is the title for the transfer. (Not the title you have in an object.)

Front 60

Property agreement

Back 60

The act by means of which the requirements for the transfer of property rights (imposed by prop.law) is met.

Diff. for movables & immovable

Front 61

Requirements for property agreements

Back 61

- Movables: requires the seller to provide the buyer with factual control = possession

- Immovable: concluding a deed is necessary + registration

Front 62

Destruction of property rights / 3 ways

Back 62

- Object on which the right rests is destroyed
- Waived or abandoned by the right holder
- Prescription
- Right of usufruct when the holder dies
- Leasehold after the time has passed