Property Law Perspectives II

Introduction to Property Law Perspectives II 1. Introduction 2. Property Law in Development 3. Contributions in this Volume Bibliography List of Contributors PARTI: CONSTITUTIONAL PROPERTY LAW Eveline Ramaekers Lex situs and Article 1 Protocol 1. The influence of the European Convention on Human Rights on Private International Law 1. Scenario: a Property Right is Lost or Altered 2. The Different Elements of A1P1 3. Pye v United Kingdom 3.1. Lex Situs Evaluated along the Lines of Pye 4. Mary Green v Malta 4.1. Public Policy Justification 4.2. Rights of a Third Party 5. Concluding Remarks Bibliography Sabrina Praduroux How to Fairly Judge Restrictions to Property Rights: an Overview on ECtHR's view on Public and Private Interests in the regulation of Property 1. Introduction 2. Proportionality as Key Feature of Judicial Review under ECHR Law 3. Proportionality as Standard of Judicial Review under Article P1-1 ECHR 4. The Conduct of Public Authorities as decisive Factor to decide on Interferences with the Right to the Peaceful Enjoyment of Possessions 5. Fairly Balanced Takings in the Light of the ECtHR Case Law 5.1. The Availability and Amount of Compensation 5.2. The Existence of Adequate Procedural Protection for the Right of Property 6. Due Process as Factor tipping the Scale within Regulation of Property Cases 7. Conclusions Bibliography Bjorn Hoops South Africa's Communal Land Rights Act: Rating the Attempt to Translate Customary Land Tenure into Legislation 1. Introduction 2. Background 2.1. Customary Land Tenure 2.2. Juristic Persons as a Means to Provide for Security of Tenure 2.3. Customary Land Tenure and the Legitimacy of Juristic Persons 3. Methodology 4. Comparison 4.1. Rights of Access and Rights of Control 4.2. Multi-Level Governance 4.3. Exclusion of Outsiders 4.4. Flexible, Inclusive, Nested and Overlapping Rights of Access 4.5. Role of Traditional Leaders 5. Concluding Remarks Bibliography Susan Bright & Lisa Whitehouse The Opportunities and Challenges of Empirical Work: Housing Possession in Theory and in Practice 1. Why Empirical Work? 2. How: the Research Methods 3. Practical Research Challenges 4. Existential Research Challenges 5. Concluding Remarks Bibliography Jeannie van Wyk What to Do about Fracking in the Karoo? 1. Introduction 2. What is 'Fracking'? 3. Where will Fracking Take Place? 4. Advantages and Disadvantages of Fracking 5. Regulatory Framework 5.1. General Regulatory Framework 5.2. Authorizations /Permits/Approvals Required 5.3. Mineral and Petroleum Resources Development Act 28 of 2002 5.4. National Environmental Management Act 107 of 1998 5.5. National Water Act 36 of 1998 5.6. National Environmental Management: Waste Act 59 of 2008 5.7. Spatial Planning Legislation 6. Owners 7. Conclusion Bibliography PART II: CONCEPTS OF PROPERTY LAW Sofie Bouly Does the Expansion of the Concept 'Immovable' Influence Immovable Accession? 1. Introduction: Immobilization and Immovable Accession Require a 'Connection' between Two or More Things 2. Immovable Accession 3. Incorporation: a Criterion with two Dimensions 3.1. Immobilization 3.2. Transfer of Ownership 4. Incorporation: a Uniform or Multiform Criterion? 4.1. Multiform Interpretation of the Incorporation Criterion 4.2. Uniform Interpretation of the Incorporation Criterion 5. Concluding Remarks with Regard to Both Dimensions of the Incorporation Criterion Bibliography Shaun Charlton Putting Universal Classifications of Property into Question: Standing Timber 1. Introduction 1.1. An Example Taken from Germany 2. France 2.1. Meubles par Anticipation 2.2. Symbolic Possession of the Trees 2.3. Lease of the land (Bail) 2.4. Registration 2.5. Local Conclusion on French Law 3. Germany 3.1. Legal Bases Dependent upon the Classification of the Property Law Classification of Standing Trees 3.1.1. Legal Bases Dependent upon the Classification of the Trees as Immovable 3.1.2. Legal Bases Dependent upon the Classification of the Trees as Movable 3.1.3. German Property Law Classification of the Standing Trees 3.2. Legal Bases Independent of the Property Law Classification of Standing Trees 3.2.1. Legal Consequences Resulting from the Interpretation of the Estate Contract 3.2.2. Interpreting the Estate Contract 3.3. Local Conclusion on German Law 4. Great Britain 4.1. Profit a Prendre 4.1.1. The Sales Contract as the Grant of a Profit 4.1.2. Whether the Profit Will Bind Third Parties 4.1.3. By Way of Deed (Legal Profits) 4.1.4. By Way of a Signed Written Contract (Equitable Profits) 4.1.5. Informal Agreements (Purporting to grant a Profit) 4.2. Back to the Sales Contract 4.3. Local Conclusion for English and Scots Law 5. Conclusion Bibliography Dorothy Gruyaert Client Accounts: in Search of a Legal Foundation 1. Introduction 2. Legal Position Before 27 January 2011 2.1. Concept 2.2. Classification of the Legal Relationship 2.2.1. Introductory Note: The Principle of Exclusive Ownership 2.2.2. Indirect Representation 2.2.3. Fiduciary Ownership for Management Purposes 2.2.4. Concluding Remarks 3. Recent Developments in Case Law 4. Lessons to Be Learnt 4.1. Legislative Intervention 4.2. First Proposal 4.3. Second Proposal 4.3.1. Quo Vadis? 5. Conclusion Bibliography Ann Apers Party Autonomy in the Classification of Things: Expansion of the Term 'Immovable' 1. Introduction: the Classification Concept 2. Classification of Things 2.1. Objective Classification Criteria 2.2. Subjective Classification Criteria 2.3. Relation between Objective and Subjective Classification Criteria 3. Expansion of the Term 'Immovable by Nature' in Belgian and Dutch Law 3.1. Background of the Category 3.2. Interpretation of the Term 'Immovable' 3.2.1. Legal Provisions: Classification based on the Nature of the Property 3.2.2. Case Law Analysis: Shift towards Subjective Interpretation 3.3. Criticism on the Subjective Interpretation of the Term 'Immovable through Attachment' 4. Concluding Remarks Bibliography Brendan Edgeworth The Contractualization of Leases in Common Law Jurisdictions: Recent Developments 1. Introduction 2. In the Beginning: Highway Properties, Shevill and their Lineage 3. The Rise of the Anti-Shevill Clause 4. Some Other Common Law Jurisdictions 5. Contractual Termination and Notice Requirements 6. Conclusion Bibliography PART III: DEVELOPMENTS IN PROPERTY LAW AND PROPERTY THEORY Bram Akkermans Standardization of Property Rights in European Property Law 1. Introduction 2. Introducing the Issues: Perspectives on Numerus Clausus 3. Standardization Theory 4. Standardization Theory in a European Setting 4.1. Before we start - Systems of Publicity and Numerus Clausus in all Countries? 4.2. Back to Problem - Numerus Clausus in Comparative or Economic Perspective? 4.3. Back to Comparative Law: Composition of the Numerus Clausus 5. Optimization of Publicity and Property Rights 6. Conclusion Bibliography Joseph William Singer The Rule of Reason in Property Law 1. Rules and Standards 1.1. Conventional Analysis 1.2. Legal Realism about Rules and Standards in Property Law 1.2.1. Why Rules are Less Predictable than We Think 1.2.1.1. Informal Sources of Justified Expectations 1.2.1.2. Rules Do Not Determine their Own Scope 1.2.1.3. Competing Norms Limit the Scope of Legal Rules 1.2.2. Why Standards are More Predictable than We Think 1.2.2.1. Exemplars and Precedent Make Standards Concrete 1.2.2.2. Presumptions Make Standards Predictable 2. How Rules of Reason Maintain the Infrastructure of Property 2.1. Setting Minimum Standards Compatible with Democratic Norms 2.2. Consumer Protection: Things that We Would Like to Take for Granted 2.3. Managing Externalities and Systemic Effects of Property Rights 3. How Rules of Reason Shape the Scope of Property Law Rules 3.1. Distinguishing Cases 3.2. Resolving Conflicting Norms 3.3. Excusing Mistakes 3.4. Escaping the 'Dead Hand' of the Past 3.5. Deterring the 'Bad Man' 4. Conclusion Bibliography PART IV: PRIVATE LAW AND PROPERTY LAW Mitzi Wiese A Comparison between a Lien (right of retention) in South African Law and het retentierecht in Dutch Law before and after the Enactment of the Current Burgerlijk Wetboek 1. Introduction 2. South African Law 2.1. Three Types of Liens 2.2. The Legal Nature of Liens 3. Dutch Law 3.1. Development of Liens (retentierechten) 3.2. Before Enactment of the Current BW 3.3. After the Enactment of the Current BW 4. Evaluation Bibliography Valerie Tweehuysen A Comparative Analysis of the Principle of Indivisibility 1. Introduction 2. Dutch Law 2.1. Rules Derived from the Principle of Indivisibility 2.2. Exceptions to the Principle of Indivisibility 2.3. The Essence of the Principle of Indivisibility 3. French Law 4. German Law 5. Conclusion Bibliography Elien Dewitte Factual Universalities of Goods - Still Alive and Kicking? 1. Introduction 2. Factual Universality of Goods Versus Legal Universality of Goods 3. Application of Factual Universalities of Goods in Case Law 3.1. A Business Enterprise 3.1.1. Business Enterprise: Definition and Legal Nature 3.1.2. Usufruct of a Business Enterprise 3.1.3. Pledge of a Business Enterprise 3.1.4. Conveyance of a Business Enterprise 3.1.5. Conclusion 3.2. A Securities Portfolio 3.2.1. Securities Portfolio: Definition 3.2.2. Usufruct of a Securities Portfolio 3.2.3. An Insurance Portfolio 3.3. An Assembly of Future Receivables 4. Factual Universality of Goods: Functional Effects 5. Conclusion Bibliography Gerrit Pienaar The Reality of Fragmented Property Rights 1. Introduction 2. The Economic and Social Reality of Fragmented Ownership 3. The Nature of the Rights to Land 3.1. Sectional Title Ownership 3.2. Communal Land Tenure in Rural Areas 4. Registrability and Protection 4.1. Sectional Title Ownership 4.2. Communal Land Rights 5. Administrative System and Dispute Resolution 5.1. Sectional Title Community 5.2. Communal Property in Rural Areas 6. Conclusion Bibliography