PROPERTY LAW

18/09/2010, Pierre MEDOUS

 CONCEPT AND HISTORY

 COMPONENTS
 CARACTERISTICS
 GOODS: MOVABLES AND IMMOVABLES

CONCEPT AND HISTORY

 Basis of Property Concept is LIBERALISM, which means individualism(individual property)

 Classical theory by AUBRY and RAU has 3 main elements:
a) one person: one patrimony
b) all the persons: have patrimony
c) only person can: have patrimony
 COOWNERSHIP: with one good, have more than one owner, this is about common property, a
law was adopted in 1965 to regulate the ownership of common property. For example, you're a
private owner of an apartment, you're also a common owner of the whole building.

 History

COMPONENTS(elements)

1. ABUSUS 处分权: right to sell, destroy, abandon, etc . That is to say, it's the right to make acts of
these possessions, for example: modify the good or even change the nature of substances.
Negatively, it's the right not to do anything of it.
a) material disposal 物理性质的权利，比如：毁损
b) legal disposal 法律性质的权利，比如：转让

Exceptions:
a) FORCED SALE
i. private forced sale action: e.g. loan of a bank, bank need reimbursement;
ii. for public reasons: right of public authorities of depriving the owners' goods.
b) FORCED DESTRUCTION
i. owner's building is already of danger of collapse or other damages, public authorities can
force the owner either destroy or repair the building;
ii.
 Limits:
a) URBANISTIC RULES(for public interests): the right of preemption of the goods by public
authorities. ref. 1986, COSTLINES.
b) UNTRANSFERABILITY OF THE GOODS: that's the protection of creditors of someone's
patrimony.

2. USUS 使用权: right to use the good or not

使用权包含不使用的权利，但法律对于所有人不使用财产的行为可能有一定的限制，比如
对于闲置不用的住宅，在有公共利益需要的时候会强行征用。

3. FRUCTUS 用益权: also "fruits". all the resources originate from a good(both natural sources and
legal transactions) without affecting, changing or modifying the substances of the good.
a) natural fruits 天然孳息: directly from the goods without human intervention(fruits which
originate naturally, e.g. apple from apple trees)
b) civil fruits 法定孳息: profits obtained through legal transaction, e.g. rents, loan interest, etc
c) industrial fruits 人工孳息: results from human activities(production of manual work, e.g.
harvesting crops, etc)

CARACTERISTICS

1. ABSOLUTE
Restrictions: a) personal interest of the owner
i. minors (e.g. inheritance..)
ii. adults
-- full legal capacity
-- limited legal capacity
b) for the interest of the third party(theory of abnormal trouble of neighborhood)
c) for public interest(e.g. prevention to plant, build, demolish... mainly for the
environment)

2. PERPETUAL 所有权不因不使用而丧失，但有权利之诉的时效限制，不动产除外。所有权的
永久性表现在两个方面：一，要求返还不动产之诉权的永久性，即不受 30 年不使用其不
动产的限制；二，所有权之无失效期限，terme extinctif，所有权伴随物的存在而存在，典
型的就是 TRANSFERABILITY(e.g. transmission to an inheritor), there's no extinctive
prescription(the loss of right) if the owner didn't use his own good, but there're some limits:
a) the movables: non-usage of the owner over 30 yrs, a third party used the good for over 30
yrs, that is to say, this possession gives the third party the title of ownership.
b) the immovable: the owner won't lose the ownership even if he hadn't used the property over
30 yrs.
 3. EXCLUSIVE ref. ECHR, 29/04/1999, CASE: CHASSAGNON, the respect of property
5 centimeters over the neighborhood's property is an infringement of his property.
Restrictions(limits):
a) public interest
i. environment
ii. health: hygiene(GMO'S, 19/07/1976)
b) historical culture patrimony, 01/12/1989

Other limits created by the judges:

a) theory of abuse of right of property
b) theory of abnormal trouble neighborhood
c) rebirth of collective property(common property)

In France, the right of property is protected by the judiciary, not the administrative authority.

Judiciary(civil cases, e.g. property) Administrative courts

COUR DE CASSATION CONSEL D'ETAT

COURT OF APPEAL ADMINISTRATIVE COURT OF APPEAL

TRIBUNAL DE GRANDE INSTANCE TRIBUNAL ADMINISTRATIF

(OVER 10,000EUROS)

At EU level, the protection of property is mainly based on:

a)
b)

GOODS

 MOVABLES(ii and iii are generally referred to "prescription of law")

i) by nature: e.g. a piece of wood, a table, a door, etc
ii) by anticipation 预置动产（即在某些情况下，财产于不久的将来将变为动产，如即将被
收割的庄稼，被砍伐前的树木）
iii) by determination of the legislator

 IMMOVABLES
i) by nature: building, land, etc
ii) by destination 不动产附着物: considered as part of the immovables, see 524 cc
iii) immovables related to the object to which they apply