C i v i l L a w
C a m i l l e O G E R E A U
OWNERSHIP IN FRANCE
ATTRIBUTES OF OWNERSHIP
• Art. 544: Ownership is the right to enjoy and
dispose of things in the most absolute manner, as long as they are not used in a way prohibited by statutes or regulations.
• Right to enjoy the property
• Usus
• Right to use the thing
• Right to not use the thing
• Fructus
• Right to collect the fruits
• Three kind of fruits
• Natural fruits
• Industrial fruits
• Civil fruits
ATTRIBUTES OF OWNERSHIP
• Right to dispose : abusus
•
Material dimension
• Possibility to change the substance of the thing
•
Judicial dimension
• Possibility to renounce at all of parts of his rights on the thing
• Possibility to transfer his rights to someone else
CHARACTERS OF OWNERSHIP
• Absolute character
•
Fact that the owner has all the powers on the thing and can do what he wants with it
•
Encroachment
• When the owner of a land build a building on his land but overflow on the land of the neighbor.
• Two solutions
• Destruction of the part which encroach
• Compensation of the damage + forced expropriation
•
Accession
• Someone builds a building on a land of which he is not the owner
• Owner of the land become owner of the building
CHARACTERS OF OWNERSHIP
• Exclusif character
•
Owner only one who can enjoy the advantages of the thing
• Perpetuality
•
No limitation time
•
No extinctive prescription
•
Temperament : things of intellectual property
•
Exception : fiduciary ownership
PROTECTION OF OWNERSHIP
• Action for recovery of property (Action en revendication)
•
Exerced by the owner to recover the natural possession of his good
•
« Action pétitoire » : action by which a person makes recognize its right referring on the act or the legal situation that gives him the real property right that is disputed.
•
3 conditions:
• An owner who can prove his ownership
• Loss of physically holding the well
• A claim against the third party who has possession of the property but is not the owner.
PROTECTION OF OWNERSHIP
• Protection by the texts
•
Constitution
• Declaration of the Rights of Man and Citizen
• Article 2 : property is a natural and imprescriptible right
• Article 17 : property is a sacred and inviolable right
• Distinction between rules :
• that would deprive an owner of his property
• that simply restrict the exercise of the ownership
• Control of constitutionality checks if there is a public interest to justify it
PROTECTION OF OWNERSHIP
•
ECHR
• Article 1 of Protocol No. 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
• 4 cumulative conditions of privation of property
• procedure expected, framed and fulfilled
• justified deprivation of property
• deprivation of property proportionate to the objective pursued
• pecuniary compensation to the owner.
LIMITATION OF OWNERSHIP
• In the law
•
Causes of public interest
•
Planning law, security, safety, aesthetic
• In the jurisprudence
•
Theory of abnormal neighborhood disturbances
• Case of responsability without fault
• Force the neighbor that causes a disturbance to its neighbor to repair the consequences.
• Exoneration
• Force majeure
• Victim’s fault
LIMITATION OF OWNERSHIP
•
Abuse of rights
• Clément Bayard’s case, 3 August1915 gives the principle
• There is abuse of the right of ownership when the owner acts for the sole purpose of harming others
• 2 cumulative conditions
• Action must be free of utility
• Made with malicious intent
