Экзамен зачет учебный год 2023 / Van Erp,Towards a Unified System of Land Burdens

Bram Akkermans

tention of the parties that the covenant would run with the land.101 On the negative content of covenants in Equity Lord Templeman stated in Rhone v. Stephens:

‘Enforcement of a positive covenant lies in contract; a positive covenant compels an owner to exercise his rights. Enforcement of a negative covenant lies in property; a negative covenant deprives the owner of a right over property. As Lord Cottenham L.C. said in Tulk v. Moxhay, at p. 778: “if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation

from the party from whom he purchased.”’102

Because of the restriction to negative duties these covenants are known as restrictive covenants. In order to give notice the covenant is registered in the Land Registry.103 The restrictive covenant fulfils many of the specific negative functions of a servitude. Positive covenants are rejected and parties are forced to impose positive duties on each other by contract.

Finally some words about Scots law. On 28 November 2004 Scotland has abandoned the feudal system of landholding.104 Under the Title Conditions Act 2003 it is possible for parties to create a real burden which contains ‘an obligation to do something (…).’105 These affirmative burdens have to be registered and can only be enforced against the owner of the property on which it is established.106

6.Towards a Unified System of Land Burdens?

In the new civil code, Dutch law adheres to the strict separation between the law of obligations and the law of property.107 Consequently land burdens are divided among these two areas. In property law there are rights of servitude and emphyteusis. In the law of obligations there are chain clauses and qualitative duties. The latter can be considered as some intermediate form between a proprietary duty and a personal duty. The amount of freedom that parties have to establish their relation will depend on the duty in question. In case of property rights parties can create additional agreements which are an inherent part of the property right itself as long as there is a sufficient connection between these agreements and the right. In case of chain clauses party autonomy is allowed to the limit of the law.108

101London County Council v. Allen [1914] 3 KB 642, CA and Law of Property Act 1925, s 79(1). Ibidem, n. 4.161-4.162, p. 255-256.

102Rhone v. Stephens [1994] 2 AC, 310, HL per Lord Templeman; see also K.G.C. Reid, ‘Real Rights and Real Obligations,’ in S.E. Bartels and J.M. Milo (eds), Contents of Real Rights, Nijmegen, Wolf Legal Publishers, 2004, p. 31-32.

103F.H. Lawson and B. Rudden, supra note 97, p. 156.

104Abolition of Feudal Tenure etc. (Scotland) Act 2000, s. 1.

105Title Conditions (Scotland) Act 2003 s. 2(1); K.G.C. Reid, supra note 102, p. 39.

106Title Conditions (Scotland) Act 2003 s. 9, ibidem, p. 39.

107See also E.B. Rank-Berenschot, supra note 27, p. 334-335; in comment H.C.F. Schoordijk, ‘Recensie; Over de scheidslijn tussen goederenen verbintenissenrecht,’ Nederlands JuristenBlad, 37/22 October 1992, p. 1202-1206, p. 1202 et seq.

108Art. 3:40 BW.

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Specifically the limitations with respect to land burdens impose difficulties. Three approaches exist to provide room for additional agreements. (1) Agreements can be fully part of the property right itself in as far as the law allows this, such inclusion will make the agreement inherent to the property right. (2) There can be agreements which are fully personal in nature and only work between parties and,

(3) finally, the doctrine of qualitative obligations allows for separate agreements, but with a property effect. The latter category can be divided. First there could be qualitative obligations accessory to recognised property rights. Second there could be freedom to establish qualitative obligations as separate rights.

This last freedom is, with various criteria, recognised in German, Swiss, English and Scots law and has, although in a limited form, been introduced by the Dutch civil code. In essence Dutch property law follows the first approach in which agreements become a full and integrated part of property rights.109 The recognition of a qualitative duty opens the door to a less dogmatic and a more pragmatic approach. Such an approach makes the legal system more flexible without effectively abandoning the separation between the law of obligations and the law of property. The separation loses its importance when the decision is made which legal relations have third party effect. Such a flexible system requires the elaboration of clear criteria to determine which relations have third party effect and which have not. The American solution reached in the Restatement Third of Property (Servitudes) 2000, introducing the concept of servitude as a general term for all land burdens could provide a solution.110

Such a solution could result in the law providing general criteria to decide in an agreement may have third party effect. These criteria could be the same as the current Dutch criteria for qualitative duties: a negative content and publication of an official document containing the agreement. Any such agreement would be known as a servitude and have third party effect, as well as survive in insolvency. Using the existing criteria for servitude or emphyteusis will not alter the possible rights and claims which can, until now, be created using these property rights. These property rights would merge into the new general type of servitude. The loss of focus on the dogmatic distinction between the law of obligations and the law of property would put a stop to the dogmatic difficulties surrounding land burdens in the Netherlands. Furthermore, in this approach positive burdens would remain without third party effect.

109C.J. van Zeben and J.W. Du Pon, supra note 15, p. 3, 257; C. Asser, F.H.J. Mijnssen and P. de Haan, supra note 44, n. 44, p. 35 et seq.; C. Asser and A. Hartkamp, supra note 27, n. 412, p. 431.

110See inter alia S.F. French, ‘The Touch and Concern Doctrine and the Restatement (Third) of Servitudes: A Tribute to Lawrence E. Berger,’ Nebraska Law Review, 77 1998, p. 653-666, p. 659 et seq.; S.F. French, ‘Symposium issue: article: Toward a Modern Law of Servitudes: Reweaving the Ancient Strands,’ Southern California Law Review, 55 1982, p. 1261-1319, p. 1264 et seq.; S.F. French, ‘Gallivan Conference: Tradition and Innovation in the New Restatement of Servitudes. A Report from Midpoint,’ Connecticut Law Review, 27 1994, p. 119-129, p. 124; S.F. French, ‘Highlights of the New Restatement (Third) of Property: Servitudes,’ Real Property, Probate and Trust Journal, 25 2000, p. 225.

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However, I would like to argue for the inclusion of positive burdens as well. The Dutch legislator has stated as a principal argument that positive burdens with third party effect should be avoided since they would reinstate duties which, as did feudal duties, place an unacceptable burden on the right of ownership.111 I agree with Heyman that this argument is not very convincing. Why would the law allow certain positive duties to be created within e.g. the right of emphyteusis and specifically also in case of chain clauses but not in general?112 Heyman offers the possibilities of limitation in time, limitation to a specific purpose or the possibility of judicial intervention to solve any remaining objections. These solutions would allow for a re-examination of the duty after a certain period of time. When the burden would become unreasonable it could be lifted by a declaratory judgment.

Another often used argument is that positive duties impose an unwanted burden on the right of ownership. The right of ownership, as the most absolute right a person can have, includes the full enjoyment of the property. Restrictions to these powers should be as limited as possible. Furthermore, other parties might lose track and be unable to identify the burdens on a certain object. Potential buyers, but also holders of security rights such as hypothecs, would be uncertain which burdens exist and what the consequences are for their rights.113 A solution for this problem could be offered by a sufficient registration system. Any interested party could inquire such a register and see which rights are established. The principle of precedence of older rights over new rights would continue to apply.114

Of course the consequence of this approach would be that the number of rights with third party effect would no longer be closed. However, there would still be criteria limiting the content, which could severely restrict the number of rights as well. Furthermore, several American authors have argued that an open system will lead to a standardisation of property rights creating a closed system in effect.115 Also South African law shows that working with open criteria could offer a very workable solution. A test, known as the subtraction from dominium test, has been imposed to decide on those legal relations with regard to land that may be registered and therefore have effect against other parties.116 Although there is criticism on the con-

111C.J. van Zeben and J.W. Du Pon, supra note 68, p. 936 and 944; C. Asser and A. Hartkamp, supra note 2727, n. 407, p. 427; H.W. Heyman, supra note 13, p. 23.

112H.W. Heyman, supra note 13, p. 23.

113H.J. Rijtma, supra note 53, p. 227 et seq.

114This rule is also known as prior tempore, potior iure.

115See T.W. Merrill and H.E. Smith, ‘Optimal Standardization in the Law of Property: The Numerus Clausus Principle,’ Yale Law Journal, 110 2000, p. 1 et seq.; H. Hansmann and R. Kraakman, ‘Property, Contract and Verification: The Numerus Clausus Problem and the Divisibility of Rights,’ Journal of Legal Studies, 31/2 (June) 2002, p. 373-420. Furthermore, the introduction of the Restatement Third of Property (Servitudes) does not seem to have included new property rights as well, the core remains ‘traditional;’ see S.F. French, ‘Gallivan Conference: Tradition and Innovation in the New Restatement of Servitudes,’ supra note 110110, p. 123-124.

116M.J. de Waal, ‘Identifying Real Rights in South African Law: the ‘Subtraction from the Dominium’ Test and its Application,’ in S.E. Bartels and J.M. Milo (eds), Contents of Real Rights, Nijmegen, Wolf Legal Publishers, 2004, p. 85 et seq.

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tent of the test, the workability of the system in general is not questioned.117 This test requires intention of the parties to bind not only themselves, but also their successors in title and that the nature of their relation should result in a ‘subtraction from the dominium’ of the land against which it is registered.118 New relations that fulfil the criteria are recognised and registered.

Finally, not only South African law, but also English law shows that it possible to have a fully functional system without the rigidity of a numerus clausus. Also in English law there are several restrictions to the number of property rights.119 The Law of Property Act 1925, part of the major reform of property law in the 1920s, limits the number of property rights that can exist at common law and pushes all other property rights into equity.120 The question therefore remains whether the list of property rights in equity is closed as well. Following the House of Lords in their National Provincial Bank v. Ainsworth judgment the courts could allow new property rights if such a right is definable, identifiable by third parties, capable in its nature of assumption by third parties, and has some degree of permanence or stability.121 However, other cases suggest a closed system.122

In short, there are legal systems which recognise separate positive obligations with a proprietary character. These include Germany, Switzerland and Scotland. Other legal systems, the Netherlands, France, Belgium and England, only recognise separate negative duties with a property character. In legal systems where only negative duties can have some proprietary effect, parties can only use contract law to create positive duties. In these legal systems the use of chain clauses to give a contract a perpetual character is commonly used. The major disadvantage of using contract law remains the impossibility to restore the chain once it has been broken.

Would it not be time to leave the dogmatic foundations of our system and move towards a pragmatic solution? Dutch law, with the introduction of qualitative duties has created possibilities. However, the result, a system in which the strict dogmatic separation between contract and property is maintained and at the same time, in effect, deviated from, creates more problems than it solves. The Dutch solution of the qualitative duty, although qualified as a personal duty by the legislator, resembles so many property characteristics that in this respect the distinction between property rights and personal rights becomes obsolete. On thing is certain: pragmatic systems in which relations that fulfil established criteria have third party effect upon registration provide more legal certainty than systems serving piece-

117C.G. van der Merwe and M.J. de Waal, The law of things and servitudes, Durban, Butterworths, 1993, p. 41.

118Ibidem, p. 41, and the cases mentioned there.

119See W. Swadling, supra note 96, p. 206 et seq., who even states there is a numerus clausus in English law.

120Ibidem, p. 229 et seq.

121However, other cases suggest otherwise. Ibidem, p. 206-208, National Provincial Bank v. Ainsworth [1965] AC 1175, 1247-8, HL per Lord Wilberforce.

122Hill v. Tupper [1863] 2 H & C 121, 159 ER 51, King v. David Allen (Billposting) Ltd [1916] 2 AC 54, HL, ibidem, p. 206-207; B. Rudden, ‘Economic Theory v. Property Law: The Numerus Clausus Problem,’ in J. Eekelaar and J. Bell (eds), Oxford Essays on Jurisprudence, Oxford, Clarendon Press, 1987, p. 245 et seq.

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meal solutions as the qualitative duty.123 A pragmatic system will avoid qualification problems and will enable third parties to inquire which relations with third party effect are established on a certain object regardless of status as a personal right or a property right.

123Unfortunately the actual achievement of such a pragmatic system will require more research and much more space than was allowed for this contribution.

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