PL 2.0

Absoluteness

Property rights can be enforced against everyone

→ The owner can claim the thing from anyone holding it

Droit de suite

The property right follows the thing

→ A mortgage stays on the house when the owner sells it to E

Nemo plus

No one can transfer more rights than they have

→ Sam, who borrowed Lisa’s car, cannot transfer it

Priority

An older property right beats a younger one in the same asset

→ Bank’s earlier mortgage beats C’s later usufruct; the bank can sell free of usufruct

Usufruct

A legal right that allows a person to use and enjoy another person's property and collect any profits or income it produces, while ownership remains with someone else

Specificity

Property rights exist only in specific, identified things

→ Buying 1 of 40 identical books in stock does not yet make you owner of any copy

Publicity

Creating or transferring property rights usually requires publicity

→ Delivery for movables, registration for land

Numerus clausus

Closed list of property rights.

Typenzwang: which rights exist.

Typenfixierung: what content they may have

→ Purpose: legal certainty, predictability, publicity

Possession

Control over a thing, direct or indirect, with a claim to ownership (true or false). Possession matters for transfer (delivery), acquisitive prescription and protection of the possessor .

Consensual system

→ France

The sale contract itself transfers ownership of specific, existing things.

A consensual system is necessarily causal.

Traditio system

→ Germany , the Netherlands, DCFR)

An agreement alone is not enough. Delivery (traditio) is required, and the obligation to transfer is separate from the act that effects it.

A traditio system can be either abstract or consensual.

Causal system

A valid legal basis is needed, so if the contract is avoided, ownership returns.

Abstract system

The transfer stands even if the contract f ails; there is only an unjust-enrichment claim to retransfer .

Unity Principle

What common opinion regards as one unit is treated as one thing in law. A component loses its separate existence.

Noorlander v Ligtvoet (HR 10 April 2009)

Neighbour Ligtvoet had a contractual right to dump horse manure on Noorlander's land. Noorlander transferred the land to his daughter , who refused to let Ligtvoet continue. Ligtvoet lost.

A contract binds only the parties. The daughter is a third party and is not bound, even if she knew of the contract.

The case shows how much stronger property rights are than personal rights.

Re Goldcorp

Investors bought gold and got certificates saying specific bars were stored for them. When Goldcorp went bankrupt, no bar could be matched to any certificate. With no specific thing, there is no ownership, so the investors were only unsecured creditors.

The obligatory agreement

(e.g. sale) is the legal ground: the seller must transfer and the buyer is entitled to acquire.

The real agreement

Goes with delivery: both parties agree that ownership of a specific thing passes. It is often implicit.

Avoidance

Works retroactively (VIII. -2:202(2)): requirement (d) falls away , and ownership is treated as never having passed.

Termination

Has no retroactive effect (VIII.-2:202(3)): the buyer stays owner , and the seller only has a contractual claim. Under abstract German law, even avoidance leaves the transfer intact.

Good faith acquisition

(VIII.-3:101)

"For value" means at least 50% of the goods' value; less is treated as a gift. The transferee must prove the facts supporting good faith.

Counter-exception for stolen goods bought in a regular shop, but there is never good faith for stolen cultural objects.

Claim

The right of a creditor to demand a performance from a debtor (the active side of an obligation). It can be transferred by assignment. The key issues are what the assignment requires, whether the debtor must be told, and who wins if a claim is assigned twice.

Property as a social arrangement

Property law allocates rights in scarce resources efficiently and protects against interference. It exists because the state agrees to protect it; it is not a natural right.

Apartment rights

These must manage the common areas (the "tragedy of the commons").

France and Germany: joint ownership of land and structure, separate ownership of the flat, mandatory association.

Netherlands: joint ownership of the whole, an exclusive real right to use one flat, and a mandatory association.

Vertical accession

Land is always the principal thing, so buildings and fixtures belong to the landowner .

Exceptions: horizontal accession (balcony , basement), a right of superficies, cables and pipelines, and possibly minerals.

Portacabin (HR 31 October 1997): a thing is attached to land if its type and design show it is meant to stay permanently . Removability is not the test; the visible intention of the thing's owner is.

Purpose: manageable units, legal certainty and lower transaction costs.

Transfer of land

Consensual: agreement + power to dispose; registration only makes the transfer effective against third parties (declaratory).

Traditional: agreement + act of publicity (notarial deed + registration) + power to dispose; registration is constitutive

Registration

Deed systems register individual transactions, and the owner is deduced from the chain. They are cheaper but less certain.

Title systems register the right, the object and the holder. They are accurate but complex and expensive.

Positive systems guarantee the register: in England the registered person is the proprietor (right only); Germany gives good-faith protection for right and object, including boundaries.

Negative systems do not guarantee the register (mostly deed systems: Belgium, France, Italy , the Netherlands; Scotland is a title exception). Facts outside the register, such as acquisitive prescription or succession, can make it inaccurate.

Finding the owner of land in a negative system

1. Who owned it at the start?

2. Were the requirements for a valid transfer met?

3. If the transfer was defective, is there third-party protection, for lack of power to dispose or for another defect?

4. If not, has the possessor acquired by prescription?

Positive v negative registration

In a positive system, registration prevails over property law: the registered person is owner even if the chain of transfers had a defect.

In a negative system, property law prevails over the register .

Publicity principle

Requires that the creation, transfer, or modification of real rights (rights enforceable erga omnes, or against the whole world) must be made publicly discoverable so that third parties are aware of them.