PROPERTY LAW

MPP-EN-200814

B. van der Flier, LL.M. & J. Noordegraaf, LL.M. & P. Zonneveld, LL.M.
m.f.b.van.der.flier@hr.nl / j.j.a.noordegraaf@hr.nl / p.p.zonneveld@hr.nl

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Content
Introduction – Part I
Ownership – Part II
Acquisition & Loss – Part III
Possession & Detention –
Part IV
Transfer – Part V
Limited Rights – Part VI
Retention of Title – Part VII

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Part I

INTRODUCTION

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PROPERTY AND THINGS
• Property [art. 3:1 DCC] is comprised of:
 All things
 All proprietary and valuable rights and interests
(patrimonial rights)

• Things are corporeal (tangible); patrimonial rights are

incorporeal (intangible)

• (Corporeal) things can be movable (personal) or

immovable (real)

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PROPERTY AND THINGS
Persons can:
1. Own property (as owner)
 Ownership
2. Possess property (as possessor)
 Possession
3. Hold property (as holder/detentor)
 Detention

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WHAT ARE PROPRIETARY AND VALUABLE
RIGHTS (PATRIMONIAL RIGHTS)?
Rights that [art. 3:6 DCC]:
1. are transferable (separately or together with
another right);
2. are intended to procure a tangible benefit,
or;
3. have been acquired in exchange for actual or
expected tangible benefit.

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PROPRIETARY AND VALUABLE RIGHTS
(PATRIMONIAL RIGHTS)
Some examples:
• The right to receive payment
• The right to receive a thing
• The right to receive a service
• Other rights in personam
• Intellectual property rights
• Rights in rem

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Part II

OWNERSHIP

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WHAT IS OWNERSHIP?

“Ownership is the most comprehensive right

that a person can have in a thing.”
[art. 5:1 par. 1 DCC]

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COMPARE – PROPRIÉTÉ,
CODE CIVIL FRANÇAIS
Titre II : De la propriété
Article 544 (Créé par Loi 1804-01-27 promulguée le 6 février 1804)
La propriété est le droit de jouir et disposer des choses de la manière la plus absolue,
pourvu qu'on n'en fasse pas un usage prohibé par les lois ou par les règlements.

Article 545 (Créé par Loi 1804-01-27 promulguée le 6 février 1804)

Nul ne peut être contraint de céder sa propriété, si ce n'est pour cause d'utilité publique,
et moyennant une juste et préalable indemnité.

Article 546 (Créé par Loi 1804-01-27 promulguée le 6 février 1804)

La propriété d'une chose soit mobilière, soit immobilière, donne droit sur tout ce qu'elle
produit, et sur ce qui s'y unit accessoirement soit naturellement, soit artificiellement.
Ce droit s'appelle "droit d'accession".

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COMPARE – OWNERSHIP, CIVIL CODE OF
LOUISIANA
TITLE II--OWNERSHIP
CHAPTER 1. GENERAL PRINCIPLES
Art. 477. Ownership; content
A. Ownership is the right that confers on a person direct,
immediate, and exclusive authority over a thing. The
owner of a thing may use, enjoy, and dispose of it within
the limits and under the conditions established by law.
B. (…)”

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COMPARE – OWNERSHIP, PRC
Property Rights Law of the People's Republic of China
PART II OWNERSHIP
ChapterPromulgation
IV General Stipulations
date: March 16, 2007
Effective date: October 1, 2007
Article 39
The ownerDepartment: NationalorPeople’s
of a real property movableCongress
property has the rights to possess, use,
seek profits from and dispose of the real property or movable property according to
law. Order of the President of the People’s Republic of China (No. 62)
Article 40
The ownerTheofProperty
a real property or movable
Rights Law propertyRepublic
of the People’s has the of
right to establish
China, adopteda
usufructuary
at theright or real right
5th Session for security
of the over the
10th National real property
People's or movable
Congress of the
property. When exercising the right, the holder of usufructuary right or the holder of
People’s Republic of China on March 16, 2007, is hereby
real right for security may not damage the rights and interests of the owner.
promulgated and shall come into effect on October 1, 2007.
Article 41
As for a Hu
realJintao
property or movable property exclusively owned by the state as
prescribed by law, no entity or individual may acquire its ownership.
President of the People’s Republic of China
March 16, 2007

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CHARACTERISTICS OF OWNERSHIP
Some essential characteristics:
• An owner can – in principle – do with his property
whatever he wants
• Ownership of all parts/components
• Droit de suite
• Droit de préférence

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DROIT DE SUITE
• Regardless of any actual or constructive control,
the ownership rights that rest on a thing remain
intact

 The right (of ownership) follows the thing

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DROIT DE PRÉFÉRENCE
• Preference right

• The owner has priority in case of bankruptcy of a

third party

• The owner can separate his property from the

bankrupt estate of another

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RIGHTS OF THE OWNER
• Right to enjoy
• Right to use the fruits
• Right to pursue legal actions
• Right of revindication
• Right to establish limited rights (encumbrances)
• Right to transfer
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COMPARE
CHAPTER I
NATURE AND EXTENT OF THE RIGHT OF
OWNERSHIP
Art. 947 Québec CC.
“Ownership is the right to use, enjoy and
dispose of property fully and freely,
subject to the limits and conditions for
doing so determined by law.
Ownership may be in various modes and
dismemberments.
1991, c. 64, a. 947.”
16
LIMITATIONS

“Neminem laedit qui suo iure utitur.”

“He who exercises his right harms no-one.”

Or…?

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LIMITATIONS TO OWNERSHIP RIGHTS –
CATEGORIES
There are numerous limitations
1. Limited rights (usufruct,
pledge etc.)
1. Rights accorded to others 2. Personal rights (rent)

1. Formal laws
2. Laws 2. Laws of lower legislators

1. Rules of unwritten public

3. Rules of unwritten law law
2. Rules of unwritten
private law

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RULES OF UNWRITTEN PRIVATE LAW – ABUSE
OF RIGHTS
• Without reasonable interest + sole purpose
of annoying someone else

• Disproportionately small advantage versus

a disproportionately large disadvantage
(consideration of interests)

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RULES OF UNWRITTEN PRIVATE LAW –
NUISANCE
Requirements wrongful
nuisance:
• Wrongful act + nuisance
[art. 5:37 + 6:162 DCC]

Examples of nuisance:
• Loud noises, vibrations,
foul odours, smoke,
dust, gases, excessive
light, high temperatures
etc.

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LAWS – FORMAL (PUBLIC) LAW
An example:
• Are you allowed to build a house on your own plot of
land?

 No

• Limitations based on: Woningwet (Housing Act) and the

Wet Ruimtelijke Ordening (Planning Act)

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LAWS – FORMAL (CONSTITUTIONAL) LAW
Expropriation
• Expropriation of private property has far-reaching consequences

• Requirements for expropriation:

1. Public interest
2. Pre-defined indemnification (due compensation)

• Required for: construction of roads, railroads, canals, public utilities

et cetera

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MULTIPLE OWNERSHIP – CO-OWNERSHIP*
1. Normal co-ownership (for example in case of inheritance)
• Unforeseen
• Unorganised
• You can – in principle – do whatever you want within the limits of
your share
2. Forced or mandatory co-ownership (dividing walls)
• Not essentially temporary
• A certain level of organisation
3. Voluntary co-ownership (on the basis of an agreement)
• Voluntary
• Organised

*Joint ownership
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MULTIPLE OWNERSHIP – COMMON
OWNERSHIP & TIMESHARING
1. Common (collective) ownership
• Multiple parties contribute
• Realisation of a common goal
• Undivided right of ownership
• Desired, durable and organised
2. Timesharing

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THE NETHERLANDS
• In the Netherlands, co-ownership is a form
of community (of property)

• Two types of community: simple and

special

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Part III

ACQUISITION & LOSS

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ACQUISITION OF OWNERSHIP
I. By transfer
II. By inheritance
III. By fixture (accessio)
IV. By commingling (confusio & commixtio)
V. By finding it
VI. Via specificatio
VII. Via occupatio
VIII. Via prescription
IX. By expropriation
X. Community of property (marriage)

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TRANSFER AND INHERITANCE
By transfer [Book 3 and Book 6 DCC]
• Sales agreement, exchange or gift

By inheritance [Book 4 DCC]

• The heirs, in principle, inherit everything

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FIXTURE
By fixture [art. 5:14 DCC et seq.]
1. Movable thing becomes immovable by attaching
(affixing) it to an immovable thing, or;

2. movable thing is attached (affixed) to a movable

thing that is the prominent object*.

• Degree of attachment is essential

* How do you determine this? Value or

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OCCUPATIO
Occupatio (Appropriation) [art. 5:4 DCC]

Do you, if you find a thing, immediately become

owner?
• No. To immediately become owner it has to be a
movable thing that clearly belongs to no-one (res
nullius) (compare: res derelicta)

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BY FINDING IT
How can you, as a finder, become owner?
First
• Declare/report it as soon as possible
Then
• If requested, hand it over to the authorities (police/
municipality)

Requirements met: owner after a period of one (1) year

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TREASURE FINDING
What about… treasures?
• Treasures: high value and owner/heirs
can’t be traced

• The finder immediately becomes (co-) owner after

declaring/reporting the find

• Treasures are equally shared between the finder and the

one in or on whose property the treasure was found

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VIA PRESCRIPTION
Via prescription [art. 3:99 DCC et seq.]

• Prescription can be acquisitive (3* or 10 years) or

extinctive (20 years)

• Prescription can be in good faith (bona fides) or in bad

faith (mala fides)

• Uninterrupted possession is required (!)  Why?

*Rights in movable (non-registered) things + Rights
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LOSS OF OWNERSHIP
I. By transfer
II. By death
III. By fixture (e.g.)
IV. By giving it up/abandoning it
V. Via prescription
VI. By expropriation
VII. By destruction

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Part IV

POSSESSION & DETENTION

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WHAT IS POSSESSION?

“Possession is the detention of property for

oneself.”
[art. 3:107 par. 1 DCC]

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WHAT IS DETENTION?

“Detention is the detention of property for

someone else.”

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COMPARE – DETENÇÃO, CÓDIGO CIVIL
PORTUGUÊS
ARTIGO 1253º
(Simples detenção)
São havidos como detentores ou possuidores precários:
a) Os que exercem o poder de facto sem intenção de agir
como beneficiários do direito;
b) Os que simplesmente se aproveitam da tolerância do
titular do direito;
c) Os representantes ou mandatários do possuidor e, de um
modo geral, todos os que possuem em nome de outrem.

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Theft
What is a thief?
Holder,
possessor or
owner?

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OWNERSHIP – POSSESSION – DETENTION
• The owner is the person entitled; the thing is part of his
estate

• A holder only has effective control

• Between ownership and detention is possession;

effective control combined with a suggestion of
entitlement

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OWNERSHIP – POSSESSION – DETENTION
• The owner is usually possessor

Please note:
 There can only be one possessor

(Exception: co-possession in case of co-ownership)

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POSSESSION – DETENTION
How do you determine whether there is
possession or detention?

1. On the basis of appearance

2. Legal rules [art. 3:107 DCC]

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DETENTION
Who is a holder?
• Someone who rents, hires or leases something
• Someone who has something on loan
• Someone who manages the affairs of another
• Joy-rider

Note: a holder can’t make himself possessor (or owner)

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POSSESSION
• Possession can be in good faith or in bad faith

• Good faith requires that the possessor reasonably

considers himself as person entitled

• Good faith remains good faith

• Good faith can arise later

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POSSESSION
Advantages of possession
1. Possessor is considered as person entitled
2. Possessor in good faith is entitled to receive both natural
and civil fruits
3. The person entitled has to pay certain fees to the
possessor when he reclaims his property
4. Possessory action
5. Prescription

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Part V

TRANSFER

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NEMO PLUS & NEMO DAT RULES

“Nemo plus iuris ad alium transferre potest

quam ipse haberet”
(Ulpianus, D. 50, 17)

“Nemo dat quod non habet”

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 COMPARE
Art. 2456 LSA-CC. Transfer of ownership
“Ownership is transferred between the parties
REQUIREMENTS as soon as there is agreement on the thing and
the price is fixed, even though the thing sold is
not yet delivered nor the price paid.”

“Transfer of property requires delivery

pursuant to a valid title by the person who
has the right to dispose of the property.”
[art. 3:84 par. 1 DCC]

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Requirements for a valid transfer of property:

1. Valid title
2. Delivery
3. Authority

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TITLE
The title describes the reason for the transfer. The title
refers to the legal basis of the transfer.

Various titles:
• A valid agreement
 Sales agreement
 Gift
 Exchange agreement
• The law (for example tort)

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TITLE
What is, for example, an invalid title?
• Putative title
• Sale to someone who has an appointed guardian
• Rent, loan, lease
• Title is null and void because it results from an
agreement that is contrary to the law/public policy
• Title is rendered void (avoided) on the basis of a
defect of consent

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DELIVERY – REGISTERED PROPERTY
• Ships, buildings, land, aeroplanes

• Delivered by:
• Drawing up a deed
• Registration in the public (land) register

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DELIVERY – GOODS
Delivery of possession by a possessor
[art. 3:90, 3:114 & 3:115 DCC]
1. Factual transfer of
possession
2. Traditio symbolica
Transfer of possession
without factual act:
3. Constitutum possessorium
4. Traditio brevi manu
5. Traditio longa manu
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Delivery of possession by a
detentor [art. 3:90 BW & analogy]
1. Factual delivery of
possession
2. Traditio symbolica
Delivery of possession
without factual act:
3. Traditio brevi manu
4. Traditio longa manu
53
DELIVERY – GOODS
Constitutum possessorium (c.p.) [art. 3:115 sub a DCC]

• The possessor, A, alienates goods to B. A now

(temporarily) holds the goods for B.

• The mere consent of the parties suffices to deliver the

goods (mutual statement)

• No factual (re)delivery

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DELIVERY – GOODS
Traditio brevi manu [art. 3:115 sub b DCC]

• A alienates goods to B; B previously held the goods for A

• The mere consent of the parties suffices to deliver the

goods (mutual statement)

• No factual (re)delivery

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DELIVERY – GOODS
Traditio longa manu [art. 3:115 sub c DCC]

• A alienates goods to B, but C currently holds the goods for A

• To deliver the goods there needs to be consent between A and B

(mutual statement). In addition to the aforesaid, C has to be
notified.
• C now holds the goods for B

• No factual (re)delivery

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DELIVERY – RIGHTS
• Rights to bearer (cheque, share certificate,
bonds):
 Delivery of possession

• Rights to order (certain claims – explicitly

mention the name of the creditor):
 Delivery of possession + endorsement

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AUTHORITY
• The owner usually has authority

• The owner loses authority in case of bankruptcy

• However, there can be a representative

• If a thing is transferred by someone other than the

authorised person, the transfer is, unless approved,
invalid (nemo plus!)

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LACK OF AUTHORITY

Can the transfer still be valid?

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Requirements art. 3:86 par. 1 BW:

1. Movable property
2. Delivery of possession (no c.p.)
3. Remuneration paid
4. Acquirer acting in good faith
5. Acquirer willing and able to identify
alienator within three (3) years of
acquisition

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Codex Hammurabi
§ 9.
“If a man, who has lost anything, find that which was lost in the possession of (another) man;
and the man in whose possession the lost property is found say: “It was sold to me, I purchased it
in the presence of witnesses;” and the owner of the lost property say: “I will bring witnesses to
identify my lost property”: if the purchaser produce the seller who has sold it to him and the
witnesses in whose presence he purchased it, and the owner of the lost property produce
witnesses to identify his lost property, the judges shall consider their evidence. The witnesses in
whose presence the purchase was made and the witnesses to identify the lost property shall give
Can the transfer still be valid?
their testimony in the presence of god. The seller shall be put to death as a thief; the owner of the
lost property shall recover his loss; the purchaser shall recover from the estate of the seller the
money which he paid out.”

§ 10.
“If the purchaser do not produce the seller who sold it to him, and the witnesses in whose
presence he purchased it (and) if the owner of the lost property produce witnesses to identify his
lost property, the purchaser shall be put to death as a thief; the owner of the lost property shall
recover his loss.”

§ 11.
“If the owner (claimant) of the lost property do not produce witnesses to identify his lost
property, he has attempted fraud (has lied), he has stirred up strife (calumny), he shall be put to
death.”

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GOOD FAITH

Know

or

Reasonably supposed to know

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REVINDICATION
• An owner who loses his property can revindicate,
as in ‘claim back’, his property from anyone who
has it

• Revindication is even possible if the current

possessor or holder is in a state of bankruptcy

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REVINDICATION

Attention! Even if the five requirements of art. 3:86

par. 1 DCC are met, the owner of a movable thing
who has lost it as a result of theft, can – on the
basis of art. 3:86 par. 3 DCC – revindicate the
movable thing within a period of three years, unless
the following requirements are met…

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Requirements art. 3:86 sub 3 DCC:

1. Acquirer is a natural person

2. Acquirer is not acting in the conduct of a profession
or business
3. Alienator (usually) deals in similar things
4. Alienator uses business premises (such as a shop)
5. Alienator acting in ordinary course of business

Or:
It concerns money (or paper payable to bearer or order)

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 Valid title + delivery YES
+ authority?
Valid transfer

NO

YES No valid
Problem with
title or delivery? transfer

NO – Problem with Authority

Requirements NO No valid
art. 3:86 par. 1
transfer
DCC met?

YES
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 Stolen movable NO
property within Valid transfer
3 years?
YES

Money or paper YES

payable to Valid transfer
bearer/order?
NO
Other No valid
NO
requirements transfer –
art. 3:86 par. 3 Revindication
DCC met? succeeds
YES

Valid transfer –
MPP-EN-200814 Revindication fails 67
Part VI

LIMITED RIGHTS

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LIMITED RIGHTS

Limited rights on property Limited rights on things

I. Usufruct I. Servitude
II. Pledge II. Emphyteusis*
III. Mortgage III. Superficies
IV. Apartment rights

*Also called: leasehold

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RIGHTS OF POSSESSION VS. LIENS

Rights of possession Liens

I. Usufruct I. Pledge
II. Servitude II. Mortgage
III. Emphyteusis
IV. Superficies
V. Apartment rights

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ESTABLISHMENT
• One can establish a limited right by means of an
agreement

• A deed is often required

• Registration in the public registry is sometimes

required

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LIMITED RIGHTS
• There is a so-called closed system of limited
rights:
• Exhaustive list in the Civil Code
• Legal limitations

• Limited rights end:

Expiry, termination or renunciation

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WHAT IS A LIEN?
• A lien provides security to a creditor (usually
someone who lends money)

• If the debtor fails to meet his obligations, the

creditor can sell the property on which the lien
rests and settle his claim with the proceeds

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WHAT IS THE ADVANTAGE OF LIENS?
• A pledgee or mortgagee has priority over ‘normal’
creditors

• If the debtor goes bankrupt, pledgees and mortgagees are

separatists

• Pledgees and mortgagees have the right of immediate

execution – they are allowed to sells the property,
without interference of a judge

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WHAT IS THE DIFFERENCE BETWEEN PLEDGE
AND MORTGAGE?

Pledge Mortgage
Rests on movable, non- Rests on registered
registered property property

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CHARACTERISTICS PLEDGE AND MORTGAGE
Accessory rights
• Both rights are inconceivable without a corresponding
obligation (claim)
 if the obligation ceases to exist, liens cease to be valid

Indivisible rights
• Both rights don’t (partially) cease to exist if a part of the
debt is paid. Only when the full debt is paid, the liens
(automatically) cease to exist.

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Part VII

RETENTION OF TITLE

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WHAT IS RETENTION OF TITLE?
• Securing the performance of an obligation (typically payment
of the contract price) by retaining ownership  Security

• Movable property

• Ownership typically transfers after payment in full

• Advantage: revindication in case of bankruptcy (not just

priority!)

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MPP-EN-200814 79
 THE END

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