Property Law
Weekly Recap
,Week 1: Basic
principles and
concepts of
property law
,What is property law?
Property law is the area of law that focus us on legal relationships Law of obligations vs property law
between a person and a thing (or right)
1. Law of obligations
- Awards certain rights to people in regards to property a. Deals with legal relationships
between persons (relative rights,
Sources of property law
personal rights, rights in personam)
● International/European law: no harmonisation ● Only binding on parties (inter
○ Draft Common Frame of Reference: soft law, based on partes)
knowledge of national systems ● Few formalities
■ Acquisition and loss of ownership of goods (Book VIII)
■ Proprietary security rights in movable assets (Book IX) ● Freedom of contract
■ Trusts (Book X) 2. Property law
■ Assignment (Book III, Chapter 5) a. Deals with legal relationships
● National legislation + case law between persons and things/rights
(absolute rights, real rights, rights in
Purpose of property rights
rem)
- Regulate relations between persons and things ● Enforceable against everyone (erga
- Rights allocate scarce goods omnes)
- Property law regulates in essence ● More formalities
- Which property rights are reconginzed
- Content of those recognized property rights
● Mandatory rules
- How one is able to acquire/abandon property rights
- How a property right can be transferred Example: Noorlander v Ligtvoet
- How a limited right can be created
, Principles of property law
Examples of property rights
- Ownership
● Principle of droit de suite (right to follow) - Limited real rights (Book VIII-1:204);
○ Property rights are absolute rights that exist on an object; does not matter who subsequently has less than ownership;
hands on property they can still be enforced against everyone; initial owner still has rights against - Security rights (pand, pledge,
subsequent acquirers of real rights; property right follows the thing mortgage, gage, pfandrecht,
● Nemo plus principle hypotheque)
○ Nobody can transfer more rights than they have - Security right to movables:
■ Requires privilege of disposal; owner of thing has to have the privilege to dispose the thing pledge
● Exceptions to this; ex. Theft - Security right to
○ Act of disposal executed by someone that does not have privilege to immovables: mortgage
dispose is invalid and intended acquirer of right does not have the right
in question ● Functions of rights is security; not
● Principle of priority use of property or ownership of it
○ Oldest property rights are the strongest rights; first party with absolute right can invoke against - Rights to use (usufruct,
subsequent right holders; older property right has priority over younger property right emphyteusis, servitude)
● Principle of specificity
○ Property rights only exist with respect to specific things
Objects of property rights
● Principle of publication
○ Creation/transfer of property rights requires publicity for third parties to be informed (predictability +
legal certainty) 1. Things
■ Movables: possession; handing over (physical) a. Movables
■ Immovables: published in register b. Immovables (real estate, land)
● Numerus clausus 2. Other assets
○ Closed list of property rights a. Claims; intangible assets; not
■ Typenzwang - which property rights can be created? (im)movables
● Only property rights legislation provided for; can only create property rights
recognized by law
● Distinction is relevant because rules
■ Typenfixierung - what content can a property right have? vary; formalities for transfer of land
● Entails powers right holder has for property; property right should be within are heavier than for transfer of a
boundaries of chosen property right
movable thing
○ For legal certainty + predictability of third parties
Weekly Recap
,Week 1: Basic
principles and
concepts of
property law
,What is property law?
Property law is the area of law that focus us on legal relationships Law of obligations vs property law
between a person and a thing (or right)
1. Law of obligations
- Awards certain rights to people in regards to property a. Deals with legal relationships
between persons (relative rights,
Sources of property law
personal rights, rights in personam)
● International/European law: no harmonisation ● Only binding on parties (inter
○ Draft Common Frame of Reference: soft law, based on partes)
knowledge of national systems ● Few formalities
■ Acquisition and loss of ownership of goods (Book VIII)
■ Proprietary security rights in movable assets (Book IX) ● Freedom of contract
■ Trusts (Book X) 2. Property law
■ Assignment (Book III, Chapter 5) a. Deals with legal relationships
● National legislation + case law between persons and things/rights
(absolute rights, real rights, rights in
Purpose of property rights
rem)
- Regulate relations between persons and things ● Enforceable against everyone (erga
- Rights allocate scarce goods omnes)
- Property law regulates in essence ● More formalities
- Which property rights are reconginzed
- Content of those recognized property rights
● Mandatory rules
- How one is able to acquire/abandon property rights
- How a property right can be transferred Example: Noorlander v Ligtvoet
- How a limited right can be created
, Principles of property law
Examples of property rights
- Ownership
● Principle of droit de suite (right to follow) - Limited real rights (Book VIII-1:204);
○ Property rights are absolute rights that exist on an object; does not matter who subsequently has less than ownership;
hands on property they can still be enforced against everyone; initial owner still has rights against - Security rights (pand, pledge,
subsequent acquirers of real rights; property right follows the thing mortgage, gage, pfandrecht,
● Nemo plus principle hypotheque)
○ Nobody can transfer more rights than they have - Security right to movables:
■ Requires privilege of disposal; owner of thing has to have the privilege to dispose the thing pledge
● Exceptions to this; ex. Theft - Security right to
○ Act of disposal executed by someone that does not have privilege to immovables: mortgage
dispose is invalid and intended acquirer of right does not have the right
in question ● Functions of rights is security; not
● Principle of priority use of property or ownership of it
○ Oldest property rights are the strongest rights; first party with absolute right can invoke against - Rights to use (usufruct,
subsequent right holders; older property right has priority over younger property right emphyteusis, servitude)
● Principle of specificity
○ Property rights only exist with respect to specific things
Objects of property rights
● Principle of publication
○ Creation/transfer of property rights requires publicity for third parties to be informed (predictability +
legal certainty) 1. Things
■ Movables: possession; handing over (physical) a. Movables
■ Immovables: published in register b. Immovables (real estate, land)
● Numerus clausus 2. Other assets
○ Closed list of property rights a. Claims; intangible assets; not
■ Typenzwang - which property rights can be created? (im)movables
● Only property rights legislation provided for; can only create property rights
recognized by law
● Distinction is relevant because rules
■ Typenfixierung - what content can a property right have? vary; formalities for transfer of land
● Entails powers right holder has for property; property right should be within are heavier than for transfer of a
boundaries of chosen property right
movable thing
○ For legal certainty + predictability of third parties
