Property Law Notes

PROPERTY LAW
Lecture 1
What is property law?

…the law that deals with entitlement to property

1. OBJECTS OF PROPERTY LAW

a) TANGIABLE (CORPOREAL) objects (the ones you can physically touch)
- Movable (goods)
- Immovable (land)
b) INTANGIABLE (INCORPOREAL) objects
- Intellectual property rights



CIVIL LAW TRADITIONS

The main distinction between civil and common property law is the concept/distinction between
ownership (and possession).

o France
- Concept of ownership (Art. 544 cciv)
‘Ownership is the right to enjoy and dispose of objects in the most complete manner,
provided they are not used in a way prohibited by statues or regulations.’
- Types of Property Rights (Art. 543 cciv)
o Germany
- Right of ownership (but restricted to only corporeal objects (903 BGB)

PROPERTY RIGHTS

Absolute nature;

- Erga omnes; rights and obligations are owed towards everyone
- Principles of numerus clausus and transparency

PERSONAL RIGHTS

Relative nature;

- Not effective erga omnes but inter partes (between the parties)
- Personal duties (obligations)

There are two tests to qualify a right as property right;

1. Principle of Numerus Clausus
‘property law must, to ensure its independence, deal with the creation of property rights
according to its own principles… the parties involved cannot be free to create any right, which
sees and object and provide property effect to it. The starting point of the freedom of contract,

, that governs the law of obligations, does not apply to the law of property. Here, the opposite
applies; the parties involved can only create those rights, which are allowed by the law.’
Property law is mandatory and limits the parties’ autonomy and authority to create new
property rights.
2. Principle of transparency
- Specificity
- Publicity (possession and registration)



GENERAL RULES OF PROPERTY LAW

I. Nemo plius iuris rule (no person can transfer more than they hold)
II. Prior tempore, potior iure rule (he who is earlier in time is stronger in law)
III. Limited property rights have priority over fuller rights (usufruct and right of ownership)
IV. Special protection (revindication)



POSSESION = factual control of an object; its function is to indicate the existence of property, make it
public and to prevent unlawful/violent behavior to preserve the peace

French and German law; legal presumption that the possessor of a movable object is also its owner
(Art. 2276 cciv and 1006 BGB)

Protection of ownership stems from the entitlement with respect to an object while the protection
of possession is granted regardless of the legal entitlement with respect to an object!

SPECIFIC ACTIONS FOR;

- For the protection of Possession
Aim is fast judicial protection against interference
- For the protection of Ownership
Vindication (proof that something is in fact yours) and the right of actual interference &
the right to an injunction

Types of interference;

DISPOSSESION; of the holder of a property right and/or the possessor

DISTURBANCE; of the enjoyment of the possession

FUNDMENTAL DIFFERENCES BETWEEN CIVIL LAW & COMMON LAW

Civil law;

 Distinction between ownership and possession
 They provide specific actions for the protection of possession and ownership

Common law;

 No notion of ownership
 The protection of property rights; protection of possession

,  Protection by means of Tort law



Lecture 2 – Property Rights in the Civil Law Jurisdiction
Types of Property Rights;

Ownership; (we start with ownership because the ground rules of property law (in notes for exam
mom. 1) start with the rule about ownership)

 Right of superficies and emphyteusis
 Limited property right (ius in re aliena) -> right of real servitude
 Rights of personal servitude

An overview of how the rights are applicable;

PROPERTY RIGHT IMMOVABLE/MOVABLE
Ownership Movable/Immovable
Real servitude Immovable
Personal servitude; usufruct Movable and Immovable
Personal servitude; right to use Movable and Immovable
Personal servitude; right to habitation Immovable
Right of superficies Immovable


1. Ownership Rights

Historical Overview;

Origin – Roman dominium

France: Dominium directum (Feudal Lord) -> Dominium utile (Feudal Tennant/Vassal)

 Dominium directum; abolished
 Dominium utile; prevailed and became the right of ownership

Content of right of ownership;

Rights and Powers of owners

 1st perspective; relationship between the owner and the object
o Right to use (usus)
o Right to enjoy the fruits (fructus)
o Right to alienate (abusus) (transfer + creation of limited property rights)
 2 perspective (erga omnes); rights of the owner vis-à-vis third parties (protection of
nd

ownership)
o Vindication (rei vindicatio)
o Injunction (action negatoria)

Limitations to Right of Ownership;