Civil Law Camille OGEREAU Ownership in France Civil Law Camille OGEREAU

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

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