The Building Blocks of Property Law

A model inspired by the composition of Rubik’s Cube

EVELINE RAMAEKERS1

1. Defining ‘property law’

Every area of law has a system to it. For some areas, this system is more clear-cut than for others. This essay deals with the system that gives property law its foundation. Property law is like the mathematics of law.2 It is characterised by mandatory rules. The range of possible answers to questions of property law is generally very narrow: one can for instance not deviate from the rules on transfer, so unless these rules are strictly adhered to, the answer to the question whether or not a right has been transferred is no. Whether parties have established a limited property right depends entirely on the numerus clausus; intention is irrelevant: if the right is not in the numerus clausus then it is not a property right. It is almost like a linear equation where, if you fill in the terms properly, the answer is unambiguous.3 Just how mathematical property law can be, is shown by a model I devised to solve a methodological problem. The problem to be solved was: how do you define property law on the level of the European Community, when Community law is competence-driven and not categorised along the same lines as national law? The model is thus primarily created to solve this particular methodological problem. It is not intended for universal application, even though others might be able to use it for different purposes.

Community law is competence-driven in the sense that legislation is made on the basis of the articles in the Treaties that provide a particular competence, but these competences always concern specific issue areas rather than areas of law. In other words, Community law is not categorised along lines such as public v. private law, contract v. property law etc. In principle, only national law distinguishes between areas of law.

1 Ph.D. Researcher European Property Law, Faculty of Law, Maastricht University. This essay was presented at the Ius Commune Annual Conference, Maastricht, November 2009. The author thanks Prof. Arthur Salomons of the University of Amsterdam, Prof. Andre van der Walt of Stellenbosch University, Prof. Kenneth Reid of Edinburgh University and Prof. Sjef van Erp and dr. Bram Akkermans from the University of Maastricht for their valuable comments.

2 It appears to be difficult to find sources in which property law is actually described as mathematical, as it seems to be an opinion that is quite regularly verbally expressed by property lawyers, but not often in written form. Property law has, however, been described in terms of building blocks before: see for instance R. Stürner, 'Dienstbarkeit heute', AcP, 194 (1994), p. 275 and B. Heß, 'Dienstbarkeit und Reallast im System dinglicher Nutzungsund Verwertungsrechte', AcP, 198 (1998), p. 514.

3 A linear equation is defined by the Oxford Dictionary as: "linear equation noun" an equation between two variables that gives a straight line when plotted on a graph; The Oxford Dictionary of English (revised edition); eds. Catherine Soanes and Angus Stevenson; Oxford University Press, 2005. Oxford Reference Online, Oxford University Press, http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t140.e44094 .

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Electronic copy available at: http://ssrn.com/abstract=1434926

To determine what exactly constitutes property law at Community level, a selection of the acquis communautaire must be made and analysed. However, such a selection should be made on the basis of clearly defined criteria, which help to distinguish parts of the acquis that relate to property law from other parts of the acquis that relate to other areas of law. In other words, one needs to know what property law is in order to define what European property law is. This presents a vicious circle. To break this circle, a general model was needed that fit the characteristics of any property law system. Such a model should be able to incorporate the elements all property law systems share in general, without having to study the specifics of the property law of each of the 27 Member States to the European Union, thereby giving the model a transsystemic nature. This short essay purports to present such a model.

The title of this essay refers to the building blocks of property law, because the model that will be presented below shows that the system of property law can be broken down into smaller parts. Once you do so, the building blocks of the system are revealed. All these building blocks together form the system of property law, but each separate property right that one encounters within the system is made up of a particular assembly of some of those building blocks. The model presented below visualises this internal structure of property law. The model consists of a core and a regulatory framework surrounding that core. The core is the system of property rights. The regulatory framework around it – which I have called the operating system

– consists of the rules governing those rights, i.e. rules on creation, transfer, registration, destruction. The core plus the operating system together form the system of property law. This essay emphasises the core of the model, because it was the most complex part to develop. The model is not meant to explain where property rights come from, or what their function is, but only what they look like. The following figure visualises what the entire system of property law looks like. The figures in the next sections further clarify how the core functions.

Figure 1: The system of property law.

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Electronic copy available at: http://ssrn.com/abstract=1434926

2. The system of property rights: a three-dimensional model

Every property right has three dimensions. The first dimension – the width in my model – consists of the objects, the things that can be the object of property rights. Depending on the country, these can either be only corporeal objects or they can include incorporeal objects as well. The second dimension – the depth in my model – consists of the content of the various property rights, i.e. ownership and other, limited, real rights, which one can have over the objects. Whether a right is a property right or not is decided by the principle of numerus clausus

This principle forms a filter that separates property law from contract law. Once this filter is passed, a right is a property right, if not, then the right in question is a contractual right.4 The third dimension of a system of property law – the height in my model – is the dimension of time. Rights as well as objects can be unlimited or limited in time.

There is a constant interplay between the three dimensions of a system of property rights. For instance, in Germany one can only have a right of ownership over corporeal objects, not over incorporeals, yet rights can be transferred and be burdened with limited property rights, such as a usufruct.5 Emission rights can, under Dutch law, not be pledged, even though other rights usually can. Under English law, title can be fragmented, giving it different dimensions. Hence, while developing this three-dimensional model that represents property rights, it occurred to me that it can be imagined as looking somewhat like a Rubik’s Cube,6 of which the individual cubes can be detached and re-attached to give different shapes to its width, depth and height. The model is then visualised like this:

Fig. 2: “System-Cube” representing the three dimensions of a system of property rights.

The visualisation of the three-dimensional model is inspired by the composition of Rubik’s Cube, but the end result is autonomous and differs from the Rubik’s Cube in two ways: first, the disks of this cube – the ‘System-Cube’, see fig.1 – do not rotate, unlike the disks of the Rubik’s Cube. Second, the individual cubes of the System-Cube can be detached and re-attached to account for

4 B. Akkermans, The Principle of Numerus Clausus in European Property Law (Maastricht: Intersentia, 2008), pp. 483/484.

5 Art. 1068(1) German BGB.

6 http://www.rubiks.com/ .

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the variables of specific property rights and their objects. Rubik’s Cubes cannot be taken apart. In other words, it is not so much the way in which the Rubik’s Cube functions – i.e. having the capacity to rotate in all directions – that inspired this visualisation, but the way in which it is constructed: it is compiled of smaller cubes with different colours, all somehow connected to each other. It is this interconnection between the cubes that forms the essence of the model: the building blocks of the system of property rights are also interconnected. If you affect one, you affect the others.7

3. Practical application of the System-Cube

With the System-Cube, any given property right can be visualised. I will give a few examples to illustrate. The whole cube will hereafter be called the System-Cube, whereas the individual smaller cubes of which it is made up will be called the minor cubes. The minor cubes each have their own designation, as shown in Figure 1 above. The three minor cubes in the bottom front row represent, from left to right, immovables and movables (together: corporeals) and incorporeals. The two cubes behind each of these three (forming the dimension of depth) represent the right of ownership.8 On top of each minor cube at the bottom of the System-Cube, are stacked two more minor cubes, representing the dimension of time. Two minor cubes on top of the rights-cubes indicate that the right is in principle unlimited in time. Take one away from the top, and the right is limited in time. The same goes for the time-cubes placed on top of the objects-cubes.

The full depth of the System-Cube symbolises the right of ownership, since it is the most extensive property right a person can have. By taking minor cubes away from the depth of the System-Cube it is possible to visualise limited property rights. Limited property rights are less extensive than the right of ownership, which is shown by a reduction of the dimension of depth

7 The individual cubes of the System-Cube can be detached, because the model that the System-Cube visualises is based on the French notion of démembrement, or subtraction. B. Akkermans, The Principle of Numerus Clausus in European Property Law (Maastricht: Intersentia, 2008), p. 116: ‘[L]imited property rights, are derived from the right of ownership through a method known in French law as démembrement. Under this method the powers attributed to the right of ownership can be divided into specific parts that can be transferred to another person in the form of a limited property right. This fragmentation of the right of ownership does not lead to multiple concepts of ownership but to the creation of a limited property right. In other words, the limited property right comprises a fragment of the right of ownership’. [references omitted] The German model is comparable to the English model of limitation as described below under para. 4. Since it would practically amount to the same visualisation as presented in that paragraph, I will forego repeating it here. See in this regard also Akkermans (2008), p. 415.

8 In some countries, such as Germany and the Netherlands, it is technically not possible to be owner of incorporeals. In these systems, the person ‘owning’ an incorporeal is called the right-holder (rechthebbende in Dutch). In the model of the System-Cube, the fact that this ‘ownership’ is different from ownership of corporeals can be indicated by giving the two minor cubes in the row behind the incorporeal-cube a different colour. However, given that the powers of a right-holder over his incorporeal object are functionally equivalent to the powers that he or she has as owner of a corporeal object, the shape of the cube as such need not be changed.

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