Key Concepts in Comparative Property Law: Hypothec, RoT, and Servitudes

Hypothec: Elements and Content

Elements of a Hypothec

• Subjective Elements: Hypothecor and Hypothecee

  Capacity: The constituent must be the owner of the immovable property and possess the right to dispose of it.

• Objective Elements

  The property must be free of any other charge and capable of guaranteeing any type of obligation.

• Formal Elements

  Requires a written agreement (specifying the obligation/sum of money covered), a notarial deed, and registration. Registration has a constitutive effect in Spain (SP), the UK, Germany (GER), and the Netherlands (Dutch).

Content of the Hypothec

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

Retention of Title (RoT)

Elements of Retention of Title

• Subjective: Seller and buyer.
• Objective: Assets (goods).
• Formal:
  • Requires a written and accepted special document (France and Belgium).
  • No special document required (adherence to the general agreement) in Germany and the Netherlands.

  No registration is required, except in Switzerland.

Servitudes in Property Law

Servitudes are divided into two main categories:

• Personal Servitudes: Usufruct, use, and habitation.
• Land Servitudes:
  • Voluntary Servitudes
  • Legal Servitudes:
    • Civil Servitudes: Aqueduct, drain, sight and light, and wall dividing neighbors' properties.
    • Administrative Servitudes: For military purposes, air servitudes, industrial, sea-coast, highways, train, and electric infrastructure.

Servitudes can also be classified as continuous and positive or negative.

Distinguishing Civil and Administrative Servitudes

Civil Servitudes

Established by the Civil Code. They involve a subjective element (dominant and servient land), and there is normally compensation.

Administrative Servitudes

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

Public Fences, Lights, and Views (PFLV)

These rights are common in all jurisdictions and are established by the legislator. The burden of proof is carried not by the right holder, but by whoever contests the right.

Apartment Ownership and Co-Ownership

Each civil law system enables parties to divide a building so that several persons can each have their own apartment. These rights concern both the land and the structure.

In German and Dutch law, these are distinct property rights that allow several people to co-own a building while entitling each to a separate exclusive area. French law achieves the same result using the general law on co-ownership.