Hypotech and Retention of Title: Elements, Objectives, and Formalities

Hypotech - Elements: Subjective. Hypothecor and Hypothecee

Capacity. The constituent has to be the owner of the unmovable and the right to dispose of it. Objective: The thing has to be free of any other charge and can guarantee any type of obligation. Formal: Written agreement (obligation/sum of money covered.) Notarial deed and registration (Constitutive effect in SP, UK, GER, and Dutch).

The owner of the thing (debtor) remains the possessor of the thing and can use (civiliter use), enjoy, dispose and even burden it. The hypothec can be modified.

Retention of Title: Elements: Subjective.

Seller and buyer. Objective: Assets. Formal: Written and accepted special document (FR and BEL) versus no special document - adherence to the general agreement - (GER and Dutch). No registration required except in Switzerland.

Servit-

Personal servitudes which are usufruct, use and habitation and land servitudes which are voluntary, legal servitudes such as civil which are aqueduct servitudes, drain servitudes, sigh and light, wall dividing neighbors' properties and the administrative which are for military purposes, air servitude, industrial, sea-coast, highways, train & electric. Then we have continuous and positive and negative. Civil - established by the civil code, subjective element, dominant and servient land, there is normally compensation.

Administrative-

Established by the legislation for public benefit, there is no concept of dominant and servient land nor compensation.

Public FLR-

Common in all jurisdictions established by the legislator. The burden of proof is carried not by the right holder but whoever contests the right.

Apartment-

Each civil law system enables parties to divide a building in such a way that several persons can each have their own apartment. They only concern land. In German and Dutch, there are distinct property rights which allow several people to co-own a building but entitling each to a separate exclusive area. French law uses the law on co-ownership to the same end.