“It is important for a balanced housing system that development and availability includes sufficient owner-occupied, private rented, intermediate tenures (shared ownership-like tenures, cooperatives and community land trusts) and social housing schemes. It is suggested that the EU and its Member States promote a continuum of tenures, and that the potential role of intermediate tenures in preventing household over-indebtedness, enhancing flexibility and housing system stability be explored.”
{"title":"The Right to Housing as a Right to Adequate Housing Options","authors":"C. Schmid","doi":"10.1515/eplj-2020-0006","DOIUrl":"https://doi.org/10.1515/eplj-2020-0006","url":null,"abstract":"“It is important for a balanced housing system that development and availability includes sufficient owner-occupied, private rented, intermediate tenures (shared ownership-like tenures, cooperatives and community land trusts) and social housing schemes. It is suggested that the EU and its Member States promote a continuum of tenures, and that the potential role of intermediate tenures in preventing household over-indebtedness, enhancing flexibility and housing system stability be explored.”","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132059835","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}
Land is an essential resource for public administration and infrastructure. Even fallow land that happens to be publicly owned may prove to be useful in the future, even if only as a source of revenue when the land is sold to developers. Poor administration and management of publicly owned land, however, may result in citizens occupying publicly owned land. In many jurisdictions, the user of another person’s land may acquire that land after a certain period of time, provided that the non-owner’s physical control is strong enough to qualify as what is called ‘(proprietary) possession’ in most jurisdictions. In common law jurisdictions, an acquisition through long-term possession is based on ‘adverse possession’. In civil law jurisdictions, the functional equivalents are, for instance, ‘acquisitions by prescription’, Ersitzung, or usucapione. Many jurisdictions protect publicly owned land better from a non-owner’s long-term possession than privately owned land and prevent public bodies from being deprived of their ownership. This raises the question of why, how and to
{"title":"The protection of publicly owned land from acquisitions through long-term possession","authors":"Björn Hoops","doi":"10.1515/eplj-2020-0002","DOIUrl":"https://doi.org/10.1515/eplj-2020-0002","url":null,"abstract":"Land is an essential resource for public administration and infrastructure. Even fallow land that happens to be publicly owned may prove to be useful in the future, even if only as a source of revenue when the land is sold to developers. Poor administration and management of publicly owned land, however, may result in citizens occupying publicly owned land. In many jurisdictions, the user of another person’s land may acquire that land after a certain period of time, provided that the non-owner’s physical control is strong enough to qualify as what is called ‘(proprietary) possession’ in most jurisdictions. In common law jurisdictions, an acquisition through long-term possession is based on ‘adverse possession’. In civil law jurisdictions, the functional equivalents are, for instance, ‘acquisitions by prescription’, Ersitzung, or usucapione. Many jurisdictions protect publicly owned land better from a non-owner’s long-term possession than privately owned land and prevent public bodies from being deprived of their ownership. This raises the question of why, how and to","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115484561","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}
Abstract This paper presents a concept of real estate tokenization, which includes legal, technological, and organizational aspects. The research introduces a theory of a Title Token – a digital record of ownership on the blockchain. It is discussed the principle of technological neutrality, where the traditional land registry is not necessarily abandoned in favor of blockchains, but instead, people gain the right to choose. Nowadays, public administrations use central-server databases, giving no alternatives for citizens. Recognition of the right of citizens to choose which technology to apply for managing their property rights creates a basis for free competition and the development of new technologies for better public services. Decentralized distributed ledgers are the key to decentralization. They enable more secure automation of legal procedures. On the contrary, centralization is a source of many issues in governance: abuse of power, corruption, inefficient governance, and high costs, slowness and complexity of bureaucratic procedures. With automation and reduction of intermediaries, the role of the government does not decrease but significantly changes, i.e. land cadaster bodies should not be monopolistic providers on the market. The paper introduces a theoretical basis for developing a new type of property registries.
{"title":"General Concept of Real Estate Tokenization on Blockchain","authors":"O. Konashevych","doi":"10.1515/eplj-2020-0003","DOIUrl":"https://doi.org/10.1515/eplj-2020-0003","url":null,"abstract":"Abstract This paper presents a concept of real estate tokenization, which includes legal, technological, and organizational aspects. The research introduces a theory of a Title Token – a digital record of ownership on the blockchain. It is discussed the principle of technological neutrality, where the traditional land registry is not necessarily abandoned in favor of blockchains, but instead, people gain the right to choose. Nowadays, public administrations use central-server databases, giving no alternatives for citizens. Recognition of the right of citizens to choose which technology to apply for managing their property rights creates a basis for free competition and the development of new technologies for better public services. Decentralized distributed ledgers are the key to decentralization. They enable more secure automation of legal procedures. On the contrary, centralization is a source of many issues in governance: abuse of power, corruption, inefficient governance, and high costs, slowness and complexity of bureaucratic procedures. With automation and reduction of intermediaries, the role of the government does not decrease but significantly changes, i.e. land cadaster bodies should not be monopolistic providers on the market. The paper introduces a theoretical basis for developing a new type of property registries.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"38 24","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113974250","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}
Abstract Recurrent difficulties are delaying what for the time being are still modest applications of blockchain. This paper identifies what value this new technology adds to the contractual and property processes, exploring its potential and analyzing the main difficulties it is facing. Paying particular attention to the distinction between contract (personal or in personam) rights and property (real or in rem) rights, it first examines the difficulties for trading contract rights through blockchain-based applications, mainly those to complete contracts ex ante without relying on third-party enforcers. Second, it explores the difficulties faced by blockchain to enable trade in property rights.
{"title":"Prospects of Blockchain in Contract and Property","authors":"Benito Arruñada","doi":"10.1515/eplj-2019-0014","DOIUrl":"https://doi.org/10.1515/eplj-2019-0014","url":null,"abstract":"Abstract Recurrent difficulties are delaying what for the time being are still modest applications of blockchain. This paper identifies what value this new technology adds to the contractual and property processes, exploring its potential and analyzing the main difficulties it is facing. Paying particular attention to the distinction between contract (personal or in personam) rights and property (real or in rem) rights, it first examines the difficulties for trading contract rights through blockchain-based applications, mainly those to complete contracts ex ante without relying on third-party enforcers. Second, it explores the difficulties faced by blockchain to enable trade in property rights.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134510727","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}
Abstract In decision no. 3 Ob 249/18s OGH [2019] 3 Ob 249/18s. the Austrian Supreme Court (Oberster Gerichtshof, OGH) acknowledged a security right in a movable asset acquired abroad, although publicity requirements under Austrian law have not been observed before and after the movable asset crossed the Austrian border. Consequently, only the law of the country in which the movable asset is located upon the completion of the acquisition or loss shall be applicable to the acquisition or loss of a right in rem. Whether the transaction has been completed or not, is determined by the lex causae. No subsequent change in the applicable law occurs in relation to this question. The decision is analysed in this paper in the context of the former jurisprudence of the Austrian Supreme Court, which has been overturned by the present decision, and the positions published to date in legal literature. In addition, this paper provides an overview including aspects relating to EU law, the debate regarding overriding mandatory rules and fraus legis.
{"title":"Continuation of security rights in movable assets in conflict of laws – Austrian approach reconsidered","authors":"F. Heindler","doi":"10.1515/eplj-2019-0016","DOIUrl":"https://doi.org/10.1515/eplj-2019-0016","url":null,"abstract":"Abstract In decision no. 3 Ob 249/18s OGH [2019] 3 Ob 249/18s. the Austrian Supreme Court (Oberster Gerichtshof, OGH) acknowledged a security right in a movable asset acquired abroad, although publicity requirements under Austrian law have not been observed before and after the movable asset crossed the Austrian border. Consequently, only the law of the country in which the movable asset is located upon the completion of the acquisition or loss shall be applicable to the acquisition or loss of a right in rem. Whether the transaction has been completed or not, is determined by the lex causae. No subsequent change in the applicable law occurs in relation to this question. The decision is analysed in this paper in the context of the former jurisprudence of the Austrian Supreme Court, which has been overturned by the present decision, and the positions published to date in legal literature. In addition, this paper provides an overview including aspects relating to EU law, the debate regarding overriding mandatory rules and fraus legis.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128953900","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}
Discussions about expropriation usually fall into one of two categories: the actual taking of the property and the compensation given for that taking. If we discuss the latter, it is almost always because we think adequate compensation is lacking. Public authorities that resort to expropriation prefer to acquire the property on the cheap, so they can minimize the costs. Courts generally have a tendency to follow the public authorities’ lead. In this article we would like to show how in the Netherlands the granting of adequate or just compensation is guarded by the national courts, especially the Dutch Supreme Court. The Dutch Supreme Court plays and always has played a very important role in determining the compensation given in cases of expropriation. This is because the rules pertaining to the determination of compensation have been primarily developed by the Dutch Supreme Court and can therefore in their entirety only be found in Dutch case law. Adequate or full compensation in cases of expropriation according to Dutch Law entails the compensation for damages that are a direct and necessary consequence of the expropriation. Full compensation is therefore not only the reimbursement or compensation of the actual, concrete value of the expropriated, possibly increased by the deprecation of the remaining property, but also contains compensation of additonal damages that are a direct consequence of the expropriation.
{"title":"The principle of full compensation under Dutch expropriation law","authors":"Jacques Sluysmans","doi":"10.1515/eplj-2019-0010","DOIUrl":"https://doi.org/10.1515/eplj-2019-0010","url":null,"abstract":"Discussions about expropriation usually fall into one of two categories: the actual taking of the property and the compensation given for that taking. If we discuss the latter, it is almost always because we think adequate compensation is lacking. Public authorities that resort to expropriation prefer to acquire the property on the cheap, so they can minimize the costs. Courts generally have a tendency to follow the public authorities’ lead. In this article we would like to show how in the Netherlands the granting of adequate or just compensation is guarded by the national courts, especially the Dutch Supreme Court. The Dutch Supreme Court plays and always has played a very important role in determining the compensation given in cases of expropriation. This is because the rules pertaining to the determination of compensation have been primarily developed by the Dutch Supreme Court and can therefore in their entirety only be found in Dutch case law. Adequate or full compensation in cases of expropriation according to Dutch Law entails the compensation for damages that are a direct and necessary consequence of the expropriation. Full compensation is therefore not only the reimbursement or compensation of the actual, concrete value of the expropriated, possibly increased by the deprecation of the remaining property, but also contains compensation of additonal damages that are a direct consequence of the expropriation.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126836884","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}
[i]n this country, the land acquisition statutes have not only retained the English concept of the market value of land, but also have gone further: our legislation provides for other factors to be taken into account which an ordinary seller of land would not be able to obtain from an ordinary buyer; so that it is well understood here that the dispossessed owner may be entitled to a claim for ‘disturbance’ or a ‘solatium’ over and over the ordinary sale price of land.
{"title":"Just Compensation and ‘Solatium’: Comparative approaches in Common Law Systems","authors":"Brendan Edgeworth","doi":"10.1515/eplj-2019-0008","DOIUrl":"https://doi.org/10.1515/eplj-2019-0008","url":null,"abstract":"[i]n this country, the land acquisition statutes have not only retained the English concept of the market value of land, but also have gone further: our legislation provides for other factors to be taken into account which an ordinary seller of land would not be able to obtain from an ordinary buyer; so that it is well understood here that the dispossessed owner may be entitled to a claim for ‘disturbance’ or a ‘solatium’ over and over the ordinary sale price of land.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114113874","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}
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