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Property law is the legal relationship between a person and a thing, whereas the law of obligations deals with the legal relationship between people.
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Immovables V. Movables: 1. Immovables: – deals with real estate and deals with things that cannot be moved, such as land. 2. Movables:- Usually defined as personal property and deals with goods and objects that can actually be moved such as cars. * This distinction exists because different rules apply. The value, importance, scarcity of an immovable + moveable is different in society.
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Ownership (VIII- 1: 202 DCFR):- Ownership is the most comprehensive right a person can have over property. This includes the exclusive right, insofar as consistent with applicable laws or rights granted by the owner, to use, enjoy, modify, destroy, dispose of and recover the property.
Acquiring ownership: 1. Original acquisition: a new property right comes into existence (production). 2. Derivative acquisition: the property right is derived from a predecessor (transfer).
Possession (VIII – 1: 205-208 DCFR): – This is not the same as ownership, therefore in order to determine the difference, it must first be established how ownership is acquired. -DCFR:- having direct or indirect physical control over a thing.
Limited property rights: Limited real rights are property rights with real effect derived from a right of ownership of a movable or immovable thing.
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Example:- ● If you put A’s sugar into B’s coffee and it dissolves, it will be almost impossible to separate the two because they have now become stuck together, therefore they can share the coffee equally or become co-owners of it. .
Determine the main thing: – 1. Physical criterion: – Something is part of a thing if it cannot be removed without causing considerable damage. 2. Common opinion:- The main thing can be determined by common opinion. If common opinion regards a diamond in a diamond ring to be the main thing, it will be treated as such.
In general there are 3 requirements for a valid transfer:- 1. Right of disposal 2. Legal basis (usually a contract) 3. Delivery (not every legal system requires this)
DCFR transfer requirements (Art. VIII – 2:101):- 1. The goods must exist 2. The goods must be transferable 3. The transferor must have the right of disposal 4. An obligation to transfer (valid contract / legal foundation). 5. An agreement regarding the time ownership passes and an agreement regarding delivery.
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Consensual V. Tradition system: 1. Consensual system: – Power to dispose + a contract (creation of an obligation to transfer) is sufficient for a transfer of ownership, delivery is not required. 2. Tradition System:- Delivery is required to transfer ownership. Power to dispose and a valid contract is not enough. Example: A agrees to sell a book to B and then later does the same to C. In a consensual system, B immediately becomes owner of the book. In a traditional system, whoever takes possession of the book first becomes the owner (meaning they have it in good faith).
Abstract V. Causal system: -The distinction refers to relationship between the legal basis + validity of the transfer. Whether the validity of transfer depends on valid legal basis.
Delivery (Art. VIII – 2:104): ● Alternative methods of delivery (Art. VIII – 2:105 (1) (2)): – a. Goods already in possession of transferee. b. Goods in possession of 3rd party on behalf of transferor (traditi longa manu) 3rd party protection: Art. VIII – 3:101 DCFR
3rd Party Protection: 1. Multiple Transfers (Art. VIII. – 2:301):-Occurs when an assignor assigns a claim to multiple persons. In this case, ownership is acquired by the first assignee to fulfill all the transfer requirements. 2. Successive assignees (Art. III.-5: 121): – ○ There may be situations where multiple assignees fulfill the transfer requirements. In this case, the employee who first notifies the debtor of their assignment will have priority over any previous assignments. ○ However, the employee must have acted in good faith and neither knew nor reasonably expected to know of the prior assignment. ○ The debtor is discharged by paying the first to notify him even if he is aware of competing demands.
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Lex Rei Sitae Rule:- The law of the country in which the property is situated is the law that applies.
Exercisable rights in land: -Ownership + other real rights (usufruct, surfaces, servitude, etc) are rights that can be exercised in land. Limitations:- ● Expropriation- Govt. Takes away your land property rights ● Taxes: – Taxes one pays if they want to own/use land
Ownership of land:- Ownership of land follows the unity principle as it comprises surface, soil under surface, plants growing on land and groundwater. Unity principle with land:- A component of a thing is something that is often considered as a part of the thing. As a result a movable becomes part of an immovable. (E stands in a stadium are part of the stadium)
Determining permanence: – The intention of the owner of the thing to keep the thing permanently on the ground should be evident by the type and design of it.
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Land Transfer: A title gives one a valid obligation to transfer property and the power to dispose of it.
Types of Titles:- 1. General Title:- One acquires all rights that come with the transfer (E inheritance). 2. Separate title: – One acquires specific types of property rights (E appropriation).
Validity of title:- 1. Causal system:- Acquiring property by transfer requires a valid title 2. Abstract system:- Acquiring property by transfer does not depend on the validity of the title to the transfer
Consequences of title invalidity:- 1. Causal system:- ○ Ownership returns to seller in case of invalid title ○ Seller must refund the purchase price ○ Third parties may be protected 2. Abstract system:- ○ Ownership does not automatically return back ○ Seller is protected by unjust enrichment claim
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3 Transfer requirements:- 1. Valid title:- Obligation to transfer/deliver. 2. Power to deliver 3. Delivery: – By a notarial deed or registration.
When does transferee acquire ownership?:- 1. Consensual system:- At the moment of sale. 2. Tradition system: – At the moment of delivery.
Limitations to state action: 1. Legal purpose: State actions restricting property rights must pursue a legitimate purpose of public interest. 2. Proportionality: The impact of a state action on property must be proportional (proportionality test).
Expropriation: Unilateral state action whereby the state acquires property rights to use the land for a public purpose.
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Excessive regulation of property: ● Regulation of property occurs when the state limits or interferes with the use/enjoyment/exploitation of private property. Example: – Spatial plans that only allow you to use red bricks for house. ● The state has the power to regulate property but unless they fulfill the following requirements, they will be considered excessive/unconstitutional/invalid. A. have a valid statutory basis b. Pursue a legitimate purpose c. Must be proportionality (proportionality test) 1. Suitability: – The measure is suitable to achieve the purpose. 2. Necessity: – Less difficult alternatives themselves. ○ can be determined if plaintiff does not bring alternatives in exam question 3. Adequate: – Measure balance interests of all parties involved. ● Result: – Disabled but no compensation is offered for excessive limitations on property.
Individually redundant regulations:- This occurs when a certain rule targets a specific group of people and affects a smaller group within that group even more. For this to be established, the following conditions must be fulfilled: 1. Individual burden:- ● Relatively small group of people ● Suffer more harm than others 2. Excessive burden:- ● Disproportionate ● Beyond normal societal risk ○ Goes further Of legitimate expectations of what property owners can expect in the future when they buy property?
Governance tools:- This is about how government organs deal with individually redundant regulations before awarding compensation. 1. Germany:- ● Statutory basis required ● Preventive before corrective measures 2. Everywhere else:- ● Judge makes rules on compensation + decides when to award compensation. ● No statutory basis required ● This creates legal uncertainty as different judges decide differently ● Vacant judges who regularly award compensation are costly to the state.
Acquisitive prescription: ● This concerns land theft and the illegal use of land. This occurs after owning something for a certain period of time without interference by the owner. ● There are generally 4 main types of acquisition recipes: a. Failed Transfers:- Void contract/inadequate delivery/purchase from non-owner/transfer requirements are unknowingly unfulfilled. b. Theft of mobiles c. Illegal land use: – Border disputes/land theft. d. Economic ownership
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General requirements:- 1. Physical control:- (build fence around land). 2. Knowledge:- (acquiring ownership in good faith or bad faith). 3. Continuous control during period of period
DCFR Requirements:- ● Owner-Owner:- Art. VIII – 1: ● Customer prescription: – Article VIII – 4: ● Good faith: – Art. VIII – 4:101 (2) ● Continuous possession: – Art. VIII – 4: ● Effect of acquisition prescription: – Art. VIII – 4:
The moral claim of the owner: – The offer justifications to which the “thief” deserves to become owner after a while: – 1. They used the land productively (labor theory). 2. Owner has established a bond between the land after
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