Week 1
Introduction to property law
Please always justify your answer. Also, please refer to, and apply, applicable norms and
principles.
Questions: 1. What are the characteristics of property rights as opposed to personal rights?
Property rights give an individual complete control and ownership over an item to do with as
they please. Whereas personal rights refers to a limited right that can only be enforced against a
specific person or group of people, not against the rest of the world.
Property rights are absolute and involve the relationship between a person and a thing. A limited
right follows the object so if a car with a pledge is sold the person buying it now has the pledge
on the car
2. What is property law about?
Property law is an area of law that is concerned - or: focused on - legal relationships
between a person and a thing (or right)
3. What is the difference between movable and immovable property? What is the purpose of this
distinction?
Movable property is physical property that can be easily moved, like furniture or vehicles, while
immovable property is permanently fixed to the land, such as land and buildings. The
importance of this distinction lies in legal implications, as immovable property involves more
complex ownership and transfer laws and registration requirements, while movable property
uses simpler laws
4. Book VIII DCFR is about ownership. What is ownership? Is there a different notion of
ownership in common law jurisdictions?
- Article 544 Code Civil (France)
‘Ownership is the right to enjoy and dispose of things in the most absolute manner,
provided they are not used in a way prohibited by statutes or regulations.’
,Its case by case
But common law has a more relative approach
‘That the finder of a jewel, though he does not by such finding acquire an absolute
property or ownership, yet he has such a property as will enable him to keep it against
all but the rightful owner, and subsequently may maintain trover.’
5. What is the difference between ownership and possession in civil law jurisdictions?
ownership is the absolute legal right to control, use, and transfer a thing, while possession is the
factual physical control over that thing.
Pretension of ownership = act like the owner
6. What does the numerus clausus principle say? What is the purpose of this principle?
⇒ Closed list of property rights
➢ Typenzwang
= A limited, legally defined set of property rights exist, and parties cannot create new property
rights
- Only specific property rights can be created
- Parties can only create property rights which are recognized by the law
➢ Typenfixierung
- The content of these rights is fixed by law
- Only specific contents can be in property law
❖ This means that the parties are not allowed to create their own real right, but must choose
from a set menu provided by the lawmaker
- This calls to life the proprietary effects of the right.
- Anything other will be a personal right and not a property right.
7. What does the specificity principle entail?
➢ Property rights only exist with respect to specific things/objects
- Has to be sufficiently clear in which object your right is in IF NOT then the right
does not exist
,8. What is the right of separation? Imagine A, transferor of a car, transfers ownership of the car
to B. A however will hold the car for a week for B because B is still on a holiday. If A turns
insolvent, will the bankruptcy trustee have to return the car to B?
B is already owner because of the contract and transferral, so yes it must be returned and it’s
sufficiently defined and he has the first right. Right of separation: holds that the holder of a
property right is able to enforce his property right, despite the fact that the possessor/holder of
the object in bankrupt. bankruptcy has to respect property rights of third parties So the
bankruptcy administrator has to return the car to B as the ownership of the car was already
transferred from A to B. B has as the owner of the object the right of separation. Personal right
is weak against a bankruptcy, it’s an unsecured claim compared to a property right.
The car is not a component of A’s property, it already belongs to B. If ownership hadn’t passed
yet, then B would have a personal right against A, which is a unsecured claim.
Right of separation: holds that the holder of a property right is able to enforce his property right,
despite the fact that the possessor/holder of the object in bankrupt.
bankruptcy has to respect property rights of third parties. So the bankruptcy administrator has to
return the car to B as the ownership of the car was already transferred from A to B. B has as the
owner of the object the right of separation. Personal right is weak against a bankruptcy, it’s an
unsecured claim compared to a property right. The car is not a component of A’s property, it
already belongs to B. If ownership hadn’t passed yet, then B would have a personal right
against A, which is an unsecured claim.
9. A buys a house from B for 150,000 Euros. The house is transferred to A. In order to be able to
pay for the house, A borrows money from bank C and registers a mortgage on the house in
favour of C. A, now the owner, lets D live in his house. Discuss the rights and obligations of A,
B, C and D. Do they have absolute or relative rights and against whom can they exert their
rights?
A- Right of ownership -absolute right , obligation to pay the mortgage to C
Before the house is transferred to A, he only has contractual right to B- relative right against B
B- Has a right to get the money from A, No right in relation to the house because he transferred
the ownership to A
C- Right to sell the house in case the payment is not fulfilled, right of mortgage- absolute right
The obligation to pay the lended money to A
Bank C has a right of being repaid by A in due time, which is a relative right
D- relative right- only contractual right , no usufruct because the formalities are not done to be
usufruct
, D has at best a contractual right to live in the house of A, which is a relative right. › D has to
leave the house as soon as the contract ends
› He has also to leave if the right of ownership of A is transferred to another par
10. See the previous case. What would C’s legal position be if A sold and transferred the house
to E after the registration of the mortgage?
C would still have the right to mortgage because it was merely transferred from A to E. the
obligation to pay stays with A, unless they make an agreement that E will pay for A
Droit de suite principle- the property right follows
Nemo plus principle
11. A registers a mortgage on a piece of land in favour of Bank B. Subsequently, A registers a
right of usufruct in favour of C. As A defaults on his loan, Bank B exercises its right of
mortgage. What is the effect of this action on C’s right?
C loses its right to usufruct , because the principle of priority- the creation of the right to
mortgage was created first
If the situation is reversed, the bank needs to respect the use of usufruct and sell the land with the
right of usufruct on it
12. A sells a horse to B. Does he become an owner immediately? There are two different
answers, explain why.
Transfer systems
● The answer depends on the applicable system.
● In a consensual system ownership can be transferred by a sale contract (note: the rule
applies only to specific existing things)
● In a tradition system a mere agreement is insufficient to transfer the right of ownership.
● The transfer of possession ( traditio ) is required.
● The act which obliges to the transfer is distinguished from the act which effectuates the
transfer.
● In a consensual system, the transfer of ownership only requires a drafted contract
between A and B for selling the horse.
● In a tradition system, aside from the contract, the actual transfer of the horse is also
needed which is a separate legal act. Only after both these legal acts have been
executed, B will become the owner of the horse.
Introduction to property law
Please always justify your answer. Also, please refer to, and apply, applicable norms and
principles.
Questions: 1. What are the characteristics of property rights as opposed to personal rights?
Property rights give an individual complete control and ownership over an item to do with as
they please. Whereas personal rights refers to a limited right that can only be enforced against a
specific person or group of people, not against the rest of the world.
Property rights are absolute and involve the relationship between a person and a thing. A limited
right follows the object so if a car with a pledge is sold the person buying it now has the pledge
on the car
2. What is property law about?
Property law is an area of law that is concerned - or: focused on - legal relationships
between a person and a thing (or right)
3. What is the difference between movable and immovable property? What is the purpose of this
distinction?
Movable property is physical property that can be easily moved, like furniture or vehicles, while
immovable property is permanently fixed to the land, such as land and buildings. The
importance of this distinction lies in legal implications, as immovable property involves more
complex ownership and transfer laws and registration requirements, while movable property
uses simpler laws
4. Book VIII DCFR is about ownership. What is ownership? Is there a different notion of
ownership in common law jurisdictions?
- Article 544 Code Civil (France)
‘Ownership is the right to enjoy and dispose of things in the most absolute manner,
provided they are not used in a way prohibited by statutes or regulations.’
,Its case by case
But common law has a more relative approach
‘That the finder of a jewel, though he does not by such finding acquire an absolute
property or ownership, yet he has such a property as will enable him to keep it against
all but the rightful owner, and subsequently may maintain trover.’
5. What is the difference between ownership and possession in civil law jurisdictions?
ownership is the absolute legal right to control, use, and transfer a thing, while possession is the
factual physical control over that thing.
Pretension of ownership = act like the owner
6. What does the numerus clausus principle say? What is the purpose of this principle?
⇒ Closed list of property rights
➢ Typenzwang
= A limited, legally defined set of property rights exist, and parties cannot create new property
rights
- Only specific property rights can be created
- Parties can only create property rights which are recognized by the law
➢ Typenfixierung
- The content of these rights is fixed by law
- Only specific contents can be in property law
❖ This means that the parties are not allowed to create their own real right, but must choose
from a set menu provided by the lawmaker
- This calls to life the proprietary effects of the right.
- Anything other will be a personal right and not a property right.
7. What does the specificity principle entail?
➢ Property rights only exist with respect to specific things/objects
- Has to be sufficiently clear in which object your right is in IF NOT then the right
does not exist
,8. What is the right of separation? Imagine A, transferor of a car, transfers ownership of the car
to B. A however will hold the car for a week for B because B is still on a holiday. If A turns
insolvent, will the bankruptcy trustee have to return the car to B?
B is already owner because of the contract and transferral, so yes it must be returned and it’s
sufficiently defined and he has the first right. Right of separation: holds that the holder of a
property right is able to enforce his property right, despite the fact that the possessor/holder of
the object in bankrupt. bankruptcy has to respect property rights of third parties So the
bankruptcy administrator has to return the car to B as the ownership of the car was already
transferred from A to B. B has as the owner of the object the right of separation. Personal right
is weak against a bankruptcy, it’s an unsecured claim compared to a property right.
The car is not a component of A’s property, it already belongs to B. If ownership hadn’t passed
yet, then B would have a personal right against A, which is a unsecured claim.
Right of separation: holds that the holder of a property right is able to enforce his property right,
despite the fact that the possessor/holder of the object in bankrupt.
bankruptcy has to respect property rights of third parties. So the bankruptcy administrator has to
return the car to B as the ownership of the car was already transferred from A to B. B has as the
owner of the object the right of separation. Personal right is weak against a bankruptcy, it’s an
unsecured claim compared to a property right. The car is not a component of A’s property, it
already belongs to B. If ownership hadn’t passed yet, then B would have a personal right
against A, which is an unsecured claim.
9. A buys a house from B for 150,000 Euros. The house is transferred to A. In order to be able to
pay for the house, A borrows money from bank C and registers a mortgage on the house in
favour of C. A, now the owner, lets D live in his house. Discuss the rights and obligations of A,
B, C and D. Do they have absolute or relative rights and against whom can they exert their
rights?
A- Right of ownership -absolute right , obligation to pay the mortgage to C
Before the house is transferred to A, he only has contractual right to B- relative right against B
B- Has a right to get the money from A, No right in relation to the house because he transferred
the ownership to A
C- Right to sell the house in case the payment is not fulfilled, right of mortgage- absolute right
The obligation to pay the lended money to A
Bank C has a right of being repaid by A in due time, which is a relative right
D- relative right- only contractual right , no usufruct because the formalities are not done to be
usufruct
, D has at best a contractual right to live in the house of A, which is a relative right. › D has to
leave the house as soon as the contract ends
› He has also to leave if the right of ownership of A is transferred to another par
10. See the previous case. What would C’s legal position be if A sold and transferred the house
to E after the registration of the mortgage?
C would still have the right to mortgage because it was merely transferred from A to E. the
obligation to pay stays with A, unless they make an agreement that E will pay for A
Droit de suite principle- the property right follows
Nemo plus principle
11. A registers a mortgage on a piece of land in favour of Bank B. Subsequently, A registers a
right of usufruct in favour of C. As A defaults on his loan, Bank B exercises its right of
mortgage. What is the effect of this action on C’s right?
C loses its right to usufruct , because the principle of priority- the creation of the right to
mortgage was created first
If the situation is reversed, the bank needs to respect the use of usufruct and sell the land with the
right of usufruct on it
12. A sells a horse to B. Does he become an owner immediately? There are two different
answers, explain why.
Transfer systems
● The answer depends on the applicable system.
● In a consensual system ownership can be transferred by a sale contract (note: the rule
applies only to specific existing things)
● In a tradition system a mere agreement is insufficient to transfer the right of ownership.
● The transfer of possession ( traditio ) is required.
● The act which obliges to the transfer is distinguished from the act which effectuates the
transfer.
● In a consensual system, the transfer of ownership only requires a drafted contract
between A and B for selling the horse.
● In a tradition system, aside from the contract, the actual transfer of the horse is also
needed which is a separate legal act. Only after both these legal acts have been
executed, B will become the owner of the horse.
