Property Law

Question 1

Absolute rights

Answer 1

Absolute property rights pertaining to the object of the right

Question 2

Erga omnes

Answer 2

Absolute rights = against everyone

Question 3

Types of objects

Answer 3

Tangibles -> Land, building
Intangibles -> Trademarks, claims

Question 4

Droite de suite = “Right to follow”

Answer 4

The owner does not lose his right if it is not in its possession
-> Right follows the object!

Question 5

Freedom of ownership

Answer 5

Establishes that objects are free transferable unless explicitly prohibited

Question 6

1. Civil law property
   Give 3 characteristics:

Answer 6

• Unitary system (no distinction btw movables and immovables)
• Only ONE owner
• Away from feudal system

Question 7

1. Civil law property
   What are the 3 possible relations to the object in question?

Answer 7

1. Ownership
2. Possession
3. Detentorship

Question 8

Explain ownership

Answer 8

Property right of an object
–> Immaterial relation, no need for factual possession

Question 9

Explain possession

Answer 9

Factual control/ relation btw person and object

Question 10

Explain detentorship

Answer 10

Detentor has factual possession over an object, but recognizes he’s doing it on behalf of the owner

Question 11

Right of ownership =

Answer 11

Most comprehensive right

Question 12

Vindication

Answer 12

The right holder can reclaim factual possession of the object of his right

Question 13

2. Common Law PL
   Give 3 characteristics

Answer 13

• Feudal system
• Fragmented system (distinction btw movables and immovables)
• Can be more than one owner

Question 14

Land law -> IMMOVABLES
What are the two types of rights that remained?

Answer 14

1. FEE SIMPLE
2. LEASEHOLD

Question 15

What is a fee simple? Specify on time duration.

Answer 15

Absolute in possession
–> Most extensive right
Unlimited duration on time

Question 16

What is a leasehold?

Answer 16

The fee term for a number of years
–> Secondary property right
- Holder derives, grants exclusive possession

Question 17

Personal property law (MOVABLES)
What are the objects that can be owned?

Answer 17

Corporeal (chattels = goods)
Incorporeal (Claims)

Question 18

What is the most extensive right in personal property law?

Answer 18

The TITLE or ENTITLEMENT

Question 19

Relativity of title

Answer 19

When more than one person is entitled to the same chattel
–> Stronger entitlement receives possession

Question 20

PRIMARY RIGHTS: Distinction btw Common and Civil Law.

Answer 20

Most extensive right
Civil law: Right of ownership
Common law:
- Movables: ENTITLEMENT
- Immovables: FEE SIMPLE

Question 21

Do primary property rights face limitations? By who?

Answer 21

They face limitations by public law:
- Immovables: Will need permit from government to be able to manipulate his piece of land

Can also face limitation by private law
- Movables: Permission to abuse an object not always possible
–> When it is valuable to society

Question 22

SECONDARY RIGHTS: Main definition.

Answer 22

Permissions and competences of owner may be exercised by the holder of the secondary right INSTEAD/ NEXT TO the owner

Question 23

SECONDARY RIGHTS: Types.

Answer 23

1. To use:
   1.1 Usufruct
   1.2 Servitude
2. Security rights:
   2.1 Right to pledge
   2.2 Right to hypotec

Question 24

Secondary rights TO USE: Main defintion

Answer 24

Holder of this right may use the object for a limited duration of time

Question 25

TO USE: Types

Answer 25

Usufruct Servitude

Question 26

TO USE: Usufruct

Answer 26

Person holding this secondary right has the right to enjoy the property as long as they want (usually life). Owner -> Bare ownership

Question 27

TO USE: Servitude

Answer 27

Example: Pathway on a driveway that becomes available for "everyone" Longer time than ususfruct

Question 28

Secondary SECURITY rights: Main definition

Answer 28

Created to secure the payment of a monetary claim --> Giving the holder of the claim the power to take possession if the debtor fails to pay the loan

Question 29

SECURITY: Two types (immovables vs movables)

Answer 29

Immovable objects = mortgage or hypothec Movable objects = Right to pledge

Question 30

Paritas creditorum

Answer 30

Holder of secondary right receives immediate settlement of their credit if the debtor dies "If the debtor is not able to pay, creditors have the right to paritas creditorum"

Question 31

Equality of creditors

Answer 31

Claims of creditors are equal in rank. Creditors are entitled to amounts of money from the estate in PROPORTION to their clamis

Question 32

Numerus clausus principle

Answer 32

Only a limited number of property rights can be recognized

Question 33

Principle of specificity

Answer 33

A property right has to be bound to a specific good or land

Question 34

Principle of publicity

Answer 34

Everybody has the right to know who holds the primary right to an object Land: Land registry Movables: Factual control Fungible objects: EXCEPTION (Money in bank)

Question 35

Nemo Dat Rule

Answer 35

Nobody can transfer a right that he did not have himself in the first place

Question 36

Prior tempore rule

Answer 36

Older property rights trump over newer ones

Question 37

How can property rights be created (5)?

Answer 37

1. Occupation 2. Creation 3. Accession 4. Prescription 5. Mixing

Question 38

Accession

Answer 38

What belongs to a land becomes part of it and is not owned by the owner of that land

Question 39

Prescription

Answer 39

Possessor in good faith did not know that object had an owner and has it for a long time

Question 40

What are the 2 requirements that have to be met in order to conclude a transfer of a property right?

Answer 40

1. It must be clear btw transferor and transferee 2. Publicity: Third party involved also needs to know

Question 41

What are the 2 systems in tranfers?

Answer 41

1. Consensual system - Reach consensus --> For immovables: need for a notarial deed 2. The tradition system - Requires a contract and a special act to transfer the property right

Question 42

When are property rights terminated?

Answer 42

1. Object stops to exist 2. Object still exists: - Owner abandoned its right - By operation of law: Prescription, usufruct when death, leasehold when time has passed) -By an agreement btw parties