Rights in Rem

Real Estate and Property

Prepared by: Constantinople

Ownership and limited rights in rem confer direct legal powers over property. In contrast, the right to require a person to transfer property is usually a personal right; this distinction affects the person against whom a claim is directed.

Rights in Rem and Personal Rights

A right arising from a promise of sale or a lease does not automatically confer all the consequences of ownership. The subject matter and type of a right in rem are determined within the statutory framework. Ownership, easements and security rights confer different powers. A contractual provision allowing someone to use property as if they were its owner does not invariably mean that ownership has been acquired.

Effect Against Everyone and Publicity

Enforcement of a right in rem against third parties is connected with means of publicity, such as registration or possession, according to the type of property. The land register may matter for immovables, while delivery and possessory presumptions may matter for movables. Good-faith acquisition and statutory exceptions are examined separately. The same acquisition or evidential rule does not apply to every kind of property.

The Correct Claim in a Dispute

Protection of a right in rem and seeking contractual performance may involve different arrangements for litigation. The content of the right, the other party's capacity and subsequent transfers are assessed together. Rather than characterising the claim solely by the agreement's heading or possession of keys, the relationship between acquisition and registration must be explained.

Documents to Prepare for an Initial Review

Send each document in its entirety as held by you, rather than only its first page or a screenshot. We determine, according to the file, what authority is needed to obtain missing official records. The following records are helpful at the outset:

• Documents of the right or acquisition
• Land register or delivery records
• Underlying agreement
• Details of subsequent transfers
• Actual arrangements for use

Why Do the Particular Circumstances Matter?

For example, the beneficiary of a promise of sale may request registration under certain conditions, but does not become the owner simply on the day the agreement is signed. The review distinguishes the nature of the existing right from the acquisition sought.