European Property Law Journal最新文献

{"title":"One Fine Day in Stellenbosch: A Review of Bram Akkermans, Ernst Marais and Eveline Ramaekers (eds) Property Law Perspectives II (Intersentia 2014)","authors":"J. Lovett","doi":"10.1515/eplj-2015-0010","DOIUrl":"https://doi.org/10.1515/eplj-2015-0010","url":null,"abstract":"This essay reviews a recently published collection of articles that originated from a conference of the Young Property Law Forum (YPLF) and a closely linked master class, both of which took place in November 2012 at Stellenbosch University's Institute for Advanced Study. The authors are a diverse group in terms of nationality and experience.The largest group of articles in the collection, authored by emerging property law scholars from Continental Europe, explores concepts in traditional civil law property law doctrine, with a particular focus on the difference between objective and subjective methods of classifying things and real rights. In addition to demonstrating the resiliency of some of these traditional doctrinal concepts, the authors of these articles (Sofie Bouly, Shaun Charlton, Dorothy Gruyaert, Ann Apers, Mitzi Wiese, Valerie Twehuysen, and Ellen Dewitte) reveal a preference for objective measures of classification but struggle at times to reconcile this preference with the tendency of courts in the legal systems they study to engage in more subjective classification determinations. In contrast, two other authors of articles in the collection (Eveline Ramaekers and Sabrina Praduroux), who are primarily concerned with constitutional property law decisions of the European Court of Human Rights, are more comfortable with that court's embrace of open-textured decision-making in its \"fair balance\" interpretation of Article 1 to the First Protocol of the European Convention of Human Rights. The authors of two more articles in the collection have a very different focus. One (Brendan Edgeworth) explores historical adaptations in the law of commercial leaseholds, while the others (Susan Bright and Lisa Whitehouse) recount an empirical study of the role of non-financial considerations in cases in which tenants and mortgagors lose possession of their residences. Two authors in the collection (Bram Akkermans and Joseph Singer) address broad questions of property theory and property law decision making norms-the operation of the numerus clausus principle and \"rules of reason\" respectively. These authors show that it is possible to think systemically about how a property law system sets limits on the number or recognized property types and that flexible standards and judicial discretion can be valuable supplements to clear, mechanistic property law rules. Finally, three articles address issues at the forefront of South African property law. The authors of these articles (Jeannie van Wyk, Bjorn Hoops, and Gerrit Pienarr) reveal the challenges posed by the need to develop South Africa's natural resources in an environmentally sustainable manner and the need to reconcile traditional customs regarding land tenure in South Africa with contemporary constitutional norms. Pienarr shows how innovations in other areas of property, for example condominium law, can serve as a repository for solutions to contemporary problems. In the end, this reviewer suggest","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128713393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The design of a four-phase participation framework in expropriation and its adoption in China","authors":"Linlin Li","doi":"10.1515/eplj-2015-0011","DOIUrl":"https://doi.org/10.1515/eplj-2015-0011","url":null,"abstract":"In China, the lack of participation of the affected people is obvious throughout the whole expropriation process. This primarily concerns the expropriation of rural collective land. The deficiency in the legislation on expropriation and the urgent need for an effective participation of the affected people in practice require new perspectives in the design of a well-governed expropriation procedure. In this research, based on the current international documents on good governance of land tenure, a four-phase participation framework in land expropriation is proposed. Although certain elements in this framework have been included in the expropriation concerning state-owned land, the four-phase participation is still absent. Through introducing the key elements of this international framework, a full and effective participation in expropriation is expected to be established in China.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121761819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Balancing tenants’ rights while addressing neighbour nuisance in Switzerland, Germany and the Netherlands","authors":"Michel Vols, Marvin Kiehl","doi":"10.1515/eplj-2015-0005","DOIUrl":"https://doi.org/10.1515/eplj-2015-0005","url":null,"abstract":"Tenants that suffer from neighbour nuisance regularly turn to the owner of the property from which they rent: the landlord. If neighbour nuisance is addressed by landlords, they have to balance the rights of the nuisance tenant and the rights of the suffering neighbours. This paper analyses the way in which Swiss, German and Dutch law deal with the conflicting obligations in case of addressing neighbour nuisance. The following questions are addressed: 1) If tenants are victims of neighbour nuisance can the suffering tenants legally oblige their landlord to comply with his/her positive obligation that arise from the tenants’ rights and, consequently, tackle the nuisance? 2) If a tenant causes neighbour nuisance, could that behaviour eventually result in the eviction of the problem tenant? 3) In the case a landlord wishes to evict the nuisance tenant, which substantive and procedural legal requirements protect the tenants from the termination of the tenancy agreement and/or eviction?","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"128 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124866675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Expropriation and the Endurance of Public Purpose","authors":"Björn Hoops, Jonathon Saville, H. Mostert","doi":"10.1515/EPLJ-2015-0006","DOIUrl":"https://doi.org/10.1515/EPLJ-2015-0006","url":null,"abstract":"","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"2 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130564722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fluidity of ownership and the tragedy of hierarchy","authors":"Sjef van Erp","doi":"10.1515/eplj-2015-0004","DOIUrl":"https://doi.org/10.1515/eplj-2015-0004","url":null,"abstract":"If civil lawyers remain thinking within the existing inherited paradigm of one uniform primary right (buttressed by the numerus clausus and transparency principles) and a strict hierarchy between this primary right, secondary (and tertiary) rights, property law will alienate itself from the existing reality. That reality shows changes caused by far reaching, socio-economic and technical developments. One of the emerging consequences is that ownership is getting into a state of flux and is becoming fluid, a development that is now also beginning to affect other property rights. In order to find answers to the problems caused by this fluidity a procedural approach to this substantive change is offered.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"275 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120961407","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Will Regulation 650/2012 simplify Cross-Border Successions in Europe?","authors":"Mireia Artigot Golobardes","doi":"10.1515/eplj-2015-0003","DOIUrl":"https://doi.org/10.1515/eplj-2015-0003","url":null,"abstract":"","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128112609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Quaedam Meditationes Caledoniae: The Property/Succession Borderland","authors":"G. Gretton","doi":"10.1515/EPLJ-2014-0006","DOIUrl":"https://doi.org/10.1515/EPLJ-2014-0006","url":null,"abstract":"To speak of a property/succession borderland is to presuppose the existence of such a borderland, to presuppose that there are two territories, property law and succession law, and that they are adjacent. That there are two distinct territories is indeed the dominant modern conception. But one does not see that with clarity either in Roman law or in modern legal systems before the 19 century. The Institutional system was based on the threefold division of the Institutiones of Justinian: personae, res et actiones. Here succession law was part of res, so that property and succession lived under the same roof. Having said that, within the Institutiones succession law formed a distinct subsection of res. Early modern codes tended to follow this albeit sometimes with modifications. In the French civil code, Book II is about property law (it is headed Des biens et des différentes modifications de la propriété). Succession belongs to Book III. Though this is headed Des différentes manières dont on acquiert la propriété it is not really about property law, so a property/succession distinction does exist. But Book III covers not only succession but also the law of obligations, so that succession law lacks a complete identity, and indeed has less identity than in Roman law because the treatment of succession within Book III is broken up. Title I is Des successions, but this does not cover all succession. Title II is Des libéralités, and this covers donations inter vivos plus the remainder of succession law. French law students study modules called successions et libéralités, and books are published with that","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128472678","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Past, Present, and Future of the French “possession vaut titre”-Rule","authors":"M. Costa, Wolfgang Faber","doi":"10.1515/eplj-2014-0008","DOIUrl":"https://doi.org/10.1515/eplj-2014-0008","url":null,"abstract":"The maxim « En fait de meubles, la possession vaut titre » is recognised world-wide as one of the most central rules of French personal property law. Taking account of the various proposals regarding the interpretation of this rule in national legal literature and court rulings, as well as of recent developments in French law such as the draft proposal for a reform of French property law submitted by the Association Henri Capitant in 2008, this article undertakes to analyse in which direction French law should preferably develop in a possible future legislative reform project. The main focus will be on the “acquisitive function” of the possession vaut titre-rule. DOI 10.1515/eplj-2014-0008","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"231 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133706255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The fundamental differences in the principles governing Property Law and Succession from a South African Law perspective","authors":"J. Sonnekus","doi":"10.1515/EPLJ-2014-0007","DOIUrl":"https://doi.org/10.1515/EPLJ-2014-0007","url":null,"abstract":"South African law is un-codified, developed, Roman-Dutch law. As such it is founded on a strict adherence to well-defined principles and the logical application of these principles guarantees legal certainty. This strict adherence to principles also vouches for an aversion against a pragmatic, casuistic and utterly uncertain mercy of a judicial sense of presumed fairness and equity. Judges are supposed to know the difference between being seated on a bench under a palm tree, pronouncing according to the current sense of what may be equitable according to the flavour of the day and sitting on a bench in a court of law and finding the legal principles that govern the case at hand.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126408376","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Special Edition 2013","authors":"W. Erlank","doi":"10.1515/EPLJ-2013-0009","DOIUrl":"https://doi.org/10.1515/EPLJ-2013-0009","url":null,"abstract":"","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130631688","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}