Week 6 - Comparative Land law, Acquisitive Prescription | Quizlet

land law families

1. French (‘Code Napoleon’, Belgium, Italy, Spain)

Mortgage register – notaries (only they can register)

2. Common law (England,Wales,Ireland)

Land registry managed by the state/register of deeds – solicitors/conveyancers instead of notaries

3. Nordic (Sweden,Finland,Denmark)

court that decides on land-related disputes and real estate agents

4. Eastern (Hungary,Poland,Slovenia)

only signature certified by official (no notary, no lawyer, no real estate doing the job)

5. German (Austria, Switzerland)

• Grundbuch guarantees the right and land boundaries + notary

same goal different systems

goal: providing legal certainty

but legal challenges:

- Lex rei sitae

- Embedded in national system (Property law, administrative law, tax law)

- common law (equity and trsuts) versus civil law

- Static: old rights are upheld

(i.e. why land law in Europe has not been harmonised)

Lex Rei Sitae

the location of the land determines the applicable law

property rights in land

- Ownership (civil law) / fee simple (freehold) (common law)

- Apartment rights / Condominium / Sectional title

- Limited property rights

--> Use rights: leasehold (common law), easement; superficies, emphyteusis (comparable to leaseholds), usufruct, servitude

--> Security rights: mortgage; hypothec (borrow money)

apartment rights / condominium law

apartments: division of a condominium into private and shared parts

- challenge: Balance between management of common areas vs autonomy of occupants of private areas

approaches to apartment rights

England: leasehold of apartments; no condominium law

Germany and France: 2 property rights

• Joint ownership of land and main structure: co-ownership

• Separate ownership of apartment: ownership

• Mandatory management association

Scotland: 3 property rights

• co-ownership of hallway, stairs

• Separate ownership of apartment and land

• No mandatory management association

NL: 1 property right

- co-ownership of land and whole building

- co-owner has exclusive real right to use specific apartment

- Mandatory management association

Scandinavian: no property rights

• apartment ownership = matter of corporate law; a corporation (housing company) owns the land and building

• apartment owners (tenants) are shareholders

principle of vertical accession

(i.e. superficies solo cedit / the rule of accession)

ownership of the land extends to the ownership of all building stably erected on the land, as well as to all components/ objects structurally inserted into those buildings

Vertical scope of ownership also extends to the earth below and the sky above the land (insofar it can be used from the ground

e.g. art. 5:20(1) BW

principle of horizontal accession

(exception to vertical accession)

e.g. a balcony or basement partially under or over the land of someone else; In the interest of preserving unity, horizontal accession is more important than vertical accession.

- based on unity principle: everything that forms one discrete unit is treated as such under property law and cannot apply property law to just a part of it

- You cannot own part of a building

art. 5:20(1) BW

The ownership of land comprises (...): (= principle of vertical accession)

a) the topsoil;

b) the layers of earth beneath the topsoil;

c) the groundwater...;

(...)

e) buildings and constructions permanently attached to the soil, either directly or through a connection with another building or construction, unless they are a component of someone else's immovable thing; (= principle of horizontal accession)

other exceptions to vertical accession

• Right of superficies --> property rights, limited right, can be used to divide ownership of the land or house but based on intention / will of the owner.

• Cables / pipelines under your property --> ownership belongs to the operator

• Minerals --> state is the owner of the minerals. (In this US owner of the property gives lease to e.g. oil company)

dutch portacabin case

Facts

- portacabin not connected to solid concrete base on the ground

- ING (bank) had a mortgage on the land, owner had gone bankrupt: if it did form part of the land, then ING could sell the portacabin under right of mortgage

Question of law: was the portacabin part of the land (immovable) or is it a movable? --> SC said immovable

Rule: What is important is what is visible to the bystander

- Type and design indicate that the thing is intended to stay on the ground permanently --> to what extent is the intention visible (incl. what is found in land register)

- Type and design of portcabin: there was a garden, pipelines, therefore supposed to stay permanently.

- removability is not a criterion

solar panels example

movable or form part of the building (land)?

- if immovable, have to go to the notary to create right of superficius (but notaries are expensive)

- more inclinded to be seen as part of the building (principle of vertical accession)

- do not have to transfer the solar panels separately

easement

the right to use land for a specific and limited purpose (limited right); if someone builds something on the land of someone else the judge can grant an _______ (right to use someone else’s land without owning it yourself) if it would be unreasonable to grant demolition

art. 5:54 BW

art. 5:54 BW

Granting of an easement

(1) Where part of a building or work has been constructed on, over or under the land of another person and where removal of the protruding part would be disproportionately more prejudicial to the owner of the building or work than its preservation would be to the owner of the land, the owner of the building or work may at any time demand that, against compensation, an easement be granted to him in order to preserve the existing situation or that, at the option of the owner of the land, the required part of the land is transferred to him.

(3) The preceding paragraphs do not apply if this is the result of an obligation, arising from the law or a juridical act, to tolerate the existing situation or if the owner of the building or the work can be held to have been in bad faith or grossly negligent with respect to the construction or his acquisition of the building or work = but VERY HIGH THRESHOLD

general requirements transfer of land rights

1. Agreement

2. Act to create publicity (notarial deed + registration of the deed)

3. right of disposal

3:84 BW

transfer of immovables under dutch law

I. Valid title fulfilled

II. Delivery (=act to create publicity, i.e. registration): fulfilled

III. Power to dispose: fulfilled

when does transfer take place

Consensual system: act that creates publicity not required for transfer to be valid but to have effect on third parties, should be registered

I. Agreement: fulfilled

II. Power to dispose: fulfilled

Tradition system (e.g. NL): act that creates publicity IS required, notarial deed must be registered

I. Agreement: fulfilled

II. Act to create publicity: fulfilled

III. Power to dispose: fulfilled

declaratory effect of registration

(used in consensual systems)

= registration has a declaratory function, registration is only required for third-party effect

- usually a transfer or a real right is opposable to third parties (third party effect) only after registration.

constitutive effect of registration

(used in tradition systems - e.g. NL)

= registration is required for ownership to pass

the transfer of ownership or the contractual creation of a real right in land will be completed only with registration

does the transfer depend on a valid causa

Causal system: yes

I. Obligation to transfer = causa / title

II. (Act to create publicity)

III. Power to dispose

Abstract system: no

I. Real agreement --> obligation to transfer is the moment the sales agreement is signed. The moment you go to the notary to acquire ownership and you sign the deed is the real agreement).

II. Act to create publicity

III. Power to dispose

in case of invalid causa

(sales agreement avoided):

casual system: retroactive proprietary effect, land goes back to seller, buyer claim on unjustified enrichment.

Abstract system: no automatic retransfer or retroactive proprietary effect, remains with buyer's creditors?

registration systems

1. deed registration system

2. title registration system

deed systems

(type of registration system)

- isolated transactions are registered (only the deed is registered) --> rights deduced from the 'chain'

- less certainty: do not know for sure you are the owner, you have to read through the deeds to find out if you are the owner by following the 'chain of deeds' (done by the Kadaster in NL)

- less complex and less expensive

(all ______ are negative systems of protection)

title systems

(type of registration system)

- right, object and title holder are registered (based on transactions)

- high accuracy and security: Based on the deeds tells you who is the owner, who has which rights (e.g. like a certificate)

- complex and expensive

whether registered rights are guaranteed

2 distinctions for protection offered:

1. positive system --> yes, registered rights are protected

2. negative system --> no

pure positive system

(most are title systems)

Are registered rights guaranteed: yes, guarantee title to the immovable property

- registration displaces property law

- The fact that you are registered as a owner means that you are the owner

Rationale: Protect the persons who rely upon information contained in the register

approach to acquisitive prescription: very reluctant to embrace acquisitive prescription because it leads to incorrect information in the register (at least if the acquisition does not need to be registered).

good faith protection: bona fide acquirer may rely on the content of the register

examples of positive system

- Germany: Right and object guaranteed (incl. boundaries);

- England: only the right of ownership is guaranteed, boundaries not very accurate.

= differences in what is guaranteed

pure negative system

(are deed systems e.g. NL)

Are registered rights guaranteed: no, do not guarantee title to the immovable property

- protects third parties from unregistered transactions

approach to acquisitive prescription: usually more lenient requirements for acquisitions by prescription

- acquisitive prescription prevails over what the register says

- death / succession prevails over what the register says

actors in land registration (NL)

Real estate agents / brokers (not obligatory in NL)

--> Promoting the Property, research on property, value of real estate, drafting selling agreement (except in Ams)

The Notary (obligatory in NL)

- Both seller and buyer want security: money transferred to notary, once notary is sure of buyer, transfers money to seller

- Drafts the deed of transfer

- Protection from risks through a trust bank account

The Cadastre (obligatory in NL)

- registers deeds in the public records

- access to land register: Summary of land’s legal status, map, decisive for administrative decisions incl. taxes

acquisitive prescription

mode of acquiring property (movable or immovable) based upon the use and control of the property by the acquirer during a certain period of time.

- under DCFR: VIII-4:101

- under Dutch law: 3:17 BW, 3:24 BW, 3:99 BW, 3:105(1) BW, 3:99 BW, 3:106 BW

situations of acquisitive prescription

- may heal a failed transfer of property and make the transferee the owner (e.g. if the contract of sale turns out to be void or delivery defective, then buyer can become owner after a certain period of time)

- may resolve boundary disputes (e.g. if unclear info on the register, owner may rely on acquisitive prescription to claim a piece of land after a certain period of time)

- land theft (e.g. land of the municipality, thief may still acquire the land after a certain period of time)

positive system and acquisitive prescription

Guarantee title to the immovable property

- Protect the persons who rely upon information contained in the register

- so, very reluctant to embrace acquisitive prescription because it leads to incorrect information in the register (at least if the acquisition does not need to be registered).

negative system and acquisitive prescription

do not guarantee title

- do not protect persons who rely upon info contained in the register in all cases

- usually more lenient requirements for acquisitions by prescription

Rationale: As prescription does not need to be registered to have third party, the law lets prescription compromise the reliability of the register.

basic requirements acquisitive prescription

1. control and use (physical control over the thing)

- must be sufficiently clear that the person exercises physical control as if s/he were owner (publicity principle)

strong indication: person in control has put up a solid boundary that gives him/her exclusive access to the land that s/he seeks to acquire by prescription (e.g. fence, sign saying 'private property', permanent alterations, renting out the land

not sufficient: mere use of land, changes that are easy to undo do, owner not being excluded from the thing

2. User's knowledge (good faith)

- the person does not know that s/he is not the owner of the thing and that there is no reason for him/her to doubt that s/he is the owner (if contrary to what is on registers, not in good faith)

3. prescription period (usually longer if not in good faith)

VIII-4:101

Acquisition of ownership on the basis of continuous possession under the DCFR

1(a): acquisition if in good faith

1(b): acquisition if in bad faith

acquisition in good faith (dcfr)

VIII-4:101(a):

1. The acquirer is owner-possessor of the good; --> VIII-1:206

2. Possession is continuous;

3. For ten years (period starts running the moment that the acquirer becomes possessor)

2)

a) person possesses in good faith if, and only if the person possesses the belief of being the owner and is reasonably justified in that belief and;

b) good faith of the possessor is presumed

= ownership via acquisitive prescription

acquisition in bad faith

VIII-4:101(b):

1. The acquirer is owner-possessor of the good; --> VIII-1:206

2. Possession is continuous;

3. For 30 years; (period starts running the moment that the acquirer becomes possessor)

4) exception: acquisition of ownership by continuous possession is excluded for a person who obtained possession by stealing the good

= ownership via acquisitive prescription

cumulative acquisitive prescription

VIII-4:206: Period of a Predecessor to be taken into account

1) where one person succeeds another in owner-possession and the requirements set out in this chapter are fulfilled cumulatively (VIII-4:101), the period of the predecessor is taken into account in favour of the successor

2) successor in good faith may take into account the period of a predecessor in bad faith only for acquisition under VIII-4:101(1-b)

acquisitive prescription dutch law

1. Has there been registation?

3:17 BW: Registration of acquisitions of immovable property by prescription

--> 3:24 BW: Protection for buyer against unregistered facts that could be registered but N.A. to acquisitive prescription and succession

2. Period and Termination of revindication

3:105(1) BW:after termination of revindicatio, person acquires ownership via acquisitive prescription even if not in good faith

--> 3:306 BW: period of revindicatio (i.e. the action of the owner to end the possession of the non-owner) is 20 years

good faith acquisition by prescription dutch law

3:99 BW

Prescription period is 3 years for movables

Prescription period is 10 years for immovables

jo. 3:105(1) BW

after termination of revindicatio, person acquires ownership via acquisitive prescription

(can be invoked anyone, regardless of good faith)

= acquisitive prescription in good faith

dutch good faith protection

(i.e. protection in a negative system, but here aspects of a positive system)

3:24 BW --> protection provider for acquirer against unregistered facts that should have been registered

exception: N.A.a for acquisitive prescription and succession

3:25 BW --> inaccurate info on the register, authenticated by a civil servant (=guaranteed by the notary, stronger protection).

exception: unless he knew it or could have known of the possibility thereof by consulting the registers

3:26 BW --> inaccurate info on the register,

exception: the acquirer knew of the inaccuracy or could have known of its the possibility by consulting the registers

3:88 BW --> protection against seller not having the power to dispose

exception: acquirer not in good faith

NL = slightly positive because usually negative systems have limited good faith protection

land register

the competent authority for registering the transfer of ownership and the creation of interests in land. The term includes the mortgage register of the French type (conservation des hypothèques) and the “land book” (Grundbuch) of the central European type.

rights of use in land

extensive rights of use giving full possession: e.g. usufruct, right of habitation (derivative from right of usufruct), building lease

limited rights of use: easements or servitudes

security rights in land

(used in mortgages and rent charges)

- guarantee in rem for the repayment of a debt

- Generally, they require creation by deed or notarial act and registration in a land register

- Once a mortgage is created (typically to a bank), the property remains with the owner, but in case of default of the debtor with the payment, the land will be sold in an auction or another type of forced sale

types of land registers in europe

· common law,

· civil law of the Code Napoleon countries,

· civil law of the German/Central European countries,

· civil law of the former communist countries,

· law of the Nordic countries

All European States have some competent national authority for registering ownership of and charges on land

registration is mandatory in a majority of countries – at least, if there is a transfer of ownership.

sale of real estate constitutive system

constitutive = registration required to transfer ownership

(e.g. Germany and NL = both tradition systems)

e.g. Germany:

1. Sales contract (notorial act)

2. Priority notice (vormerkung)

3. Payment

4. Agreement on transfer of ownership

5. Registration = transfer of ownership is complete (constitutive effect)

A distinction between the sales contract (or any other causa) and a separate agreement on the transfer of ownership can be found only in Germany and the Netherlands

sale of real estate declaratory system

declaratory = registration not required to transfer ownership but to be opposable to third parties

(e.g. France = consensual system)

1. Draft of sales contract and down payment

2. Sales contract = transfer of ownership (consensual system)

3. Payment during signaling of sales contract

4. Registration = opposoability

causal systems lead to negative systems

Causal: acquisition of land depends on the validity of the title (legal basis) for acquisition

Negative system: registration often only provides evidence of the transfer of land in a chain of transactions

= recording the acquisition of land in public registers provides LESS certainty of ownership in a causal system --> leading to a more negative system

abstract systems lead to positive systems

Abstract: validity of the legal basis is irrelevant for the validity of the transfer

Positive system: person registered owns / considered to own the land

= acquisition of land is MORE certain bc it cannot be questioned due to the invalidity of the title --> lead to a more positive system

effect of not registering a transfer

Consensual system --> alienator would successfully transfer ownership to acquirer, alienator looses power to dispose (bc registration only needed for 3rd party effect, not for transfer to take place; declaratory)

tradition system --> no transfer takes place, original alienator remains the owner, retains the power to dispose (bc registration is necessary for transfer; constitutive)

delivery in movables vs immovables

movables: giving physical control of the asset

immovables: a deed of transfer signed by the legal practitioner + registered in public land records (for legal certainty, stricter publicity principle)

acquisitive prescription rationale

› Failed transfers (chain of transactions) --> buyer’s protection(Void contract, inadequate delivery, lack of disposal)

› Theft of movables

› Illegal land;

• Boundary disputes --> protection of commerce, buyers in good faith

• Land theft (e.g. talking over the side walk)  rationale N.A here

why are rationales necessary

Deprivation requires a justification in the public interest.

Article 1 of the First Protocol to the ECHR

- for acquisitive prescription to be lawful it would have to serve a public interest (e.g. legal certainty)

- state must then strike a fair balance between the public interest and the protection of the possessions. (i.e. proportionality)

rationale in favour of land thieves

productive use of the land (labour theories) – but problematic, US used this to occupy land of native Americans

bond between possessor and land (personality) – ‘bond’ after 20 years

- contribution to his/her human flourishing – you need a house, not being homeless

Goal (I): reward care for land

Goal (II): end uncertainty; avoid hardship

illegal land use

- Loss of confidence in the protection of ownership

- introduces wrong information in the land registry because aqcuisitive prescription not visible

- Indignation, frustration, disputes, ... (in NL)

alternative rationales

The owner neglects the land (France, South Africa)

--> the punishment of the owner who sleeps on their rights, land is a valuable resource and owners should be encouraged to look after their land, incentive to look after one’s land.

- Land is a scarce resource- Obligation towards society to make good use

- Incentive to monitor and control use

versus

- Owner’s right to destroy/neglect- Reward for stealing; incentive to steal?

- Environmental protection? Taking forests/nature?