What are the categories of property right that can be acquired? Are there any interests in real estate other than exclusive ownership?
Private ownership of land itself is recognized but there is no legal means of contracting to transfer smaller land rights (such as the right of customary dominium utile, right of civil dominium utile, surface right) and right to temporary occupation, is common.
Each Australian state and territory has its own separate legislative regime in relation to the ownership of land and the various available tenures.
An interest in land can either be held under freehold or leasehold ownership. Freehold is the highest category of land ownership in Australia and effectively confers absolute ownership. The land can be held outright by one owner or a part interest or share can be held.
Leasehold land confers rights of exclusive possession and use, pursuant to specific legislation. Some leasehold interests are ‘perpetual’ in nature, and others are granted for fixed periods of time.
A real estate owner can also give non-exclusive rights to third parties to use their land, such as granting an easement for a right of way. If registered, easements are binding on successors in title to the burdened and benefited land.
In addition to exclusive ownership, other rights in rem (droits réels / zakelijke gebruiktsrechten), which are attached to a property and transferred with it, are granted on real property belonging to someone else. Note that in Belgium, only the rights in rem which are enacted by law can be established (this is the so-called “numerus clausus” principle).
There is co-ownership (copropriété / mede-eigendom) of property if the property belongs to different co-owners. There are two types of co-ownership under Belgian law: forced co-ownership (whereby the undivided property is co-owned because of its nature or use) and conventional (voluntary) co-ownership (whereby the co-ownership exists if the parties contractually agree to hold a property in co-ownership). The co-ownership is governed by the articles of association (including the base deed and co-ownership rules).
Usufruct (usufruit / vruchtgebruik) is a temporary right to use and enjoy a property belonging to the bare owner and to benefit from its profits and/or products, in a prudent and reasonable manner, in accordance with the purpose of that property and with the obligation to return it at the end of the right. A usufruct can be granted on land or (parts of a) building(s), as well as on movable and immovable property. This excludes the right to transfer or demolish the property. A usufruct is a precarious right and automatically expires upon the death of the usufructuary or after 99 years when the usufruct is granted to a legal entity (note that the declaration of bankruptcy and the voluntary dissolution put an end to the usufruct). A contractual deviation from this principle is not permitted (usufruct can never be granted for more than 99 years).
Long leases (emphytéose / erfpacht) can also be granted. It is a right in rem conferring full use and enjoyment of immovable property belonging to someone else, subject to the long-term lessee not diminishing the value of the property. A long lease is normally granted for a minimum duration of 15 years and a maximum of 99 years. Long leases can be renewed provided that the maximum duration of 99 years is not exceeded. There is a possible exception to this: long leases can be perpetual if and as long as they are established for public domain purposes by the owner of the property. The canon (ground rent) is not an essential element of a long lease.
Building rights (superficie / opstal) can also be granted. The right to build is the right in rem which confers (temporary) ownership on volumes, on, above or below the land belonging to someone else. Upon expiry of the building right, the owner automatically becomes the owner of the constructions built by the holder of the building right during the term of the building right. This is the principle of accession under Belgian law (droit d’accession / recht van natrekking). Building rights can be granted for a maximum period of 99 years. If a shorter period has been agreed, renewal is possible, but it cannot exceed the maximum period of 99 years. There is a possible exception to this: the building rights can be perpetual if and as long as it is established by the owner of the land (1) either for purposes of the public domain (2) or to allow the division into volumes of a complex and heterogeneous real estate entity that includes different volumes that can be used independently and diversely do not have a common part. Building rights can be granted free of charge or against a one-off or recurring consideration.
Finally, the right of easement (servitude/erfdienstbaarheid) is an encumbrance vested on a property to the benefit of another property. They can only exist between properties with different owners. They can be perpetual or limited in time. The former are linked to the right of ownership of the property concerned (for example, easements to refrain from building on real estate located next to airports, or to gain access to public roads). Easements can be agreed between the parties or created by prescription, law or the factual situation of properties.
In addition to ownership rights, there are also:
It should be noted that in the Federation of Bosnia and Herzegovina the rights to use and to dispose of real estate exist as a result of the previous regime, when state ownership prevented individuals or legal entities from owning the real estate that they occupied and used. Under current regulations, these rights to use and dispose of real estate can be converted into ownership, but this can be a slow process.
Property rights fall under the jurisdiction of the provinces of Canada and each province or territory has its own legislative scheme governing the ownership of land.
An interest in land may be either a freehold interest or a leasehold interest. A fee simple interest, a type of freehold interest, is the highest category of ownership in Canada and effectively confers absolute ownership. A leasehold interest is an interest less than freehold and is characterized by a right of exclusive possession and use of land for a limited or terminable period of time.
An owner of an interest in land can also give rights to third parties, such as granting an easement for a right of way. Easements are typically non-exclusive rights to use land for the benefit of adjacent land and if registered are binding on successors in title to the properties.
Interests in land can be divided and concurrently owned in any proportion by one or more parties.
In the PRC, there is no private ownership of land. Although ownership of land is not possible for private individuals or entities, it is possible to obtain the right to use land from the State. Such rights are usually known as land use rights.
Land ownership in the PRC is split into two categories: State-owned land and collectively-owned land. State-owned land is owned by the State and administered by the State Council. Collectively-owned land refers to land owned by collective economic organizations, which are generally committees of local villagers. Only State-owned land can be managed and developed by individuals and legal persons through the holding of land use rights.
The primary means by which land use rights for State-owned land can be acquired is through land grants. Land grants involve the local Land Administration Bureau entering into a land grant agreement with an individual land user, in which in return for the payment of a substantial land grant premium, the Land Administration Bureau grants the land user land use rights for a fixed period of time.
In addition to land grants, the PRC government allocates land use rights for the construction of public interest projects.
Other categories of property right include leases and licences.
In Croatia, the following types of property can be acquired:
Real estate interests, other than exclusive ownership, are:
Real easements are rights allowing one landowner to use another's land. These are linked to the land and are binding on future owners of the property, whereas personal easements (usufructs) allow rights to be granted to specific individuals.
The right to reside is another personal right allowing the holder to live in a building owned by someone else.
The right to build allows the holder to erect and maintain their own building on someone else's land and is normally granted for a limited period of time agreed between the landowner and the builder.
Czech law distinguishes between the following property rights:
The categories of property rights are legal ownership (known in common law as freehold), which is the complete and absolute right of ownership, and leasehold.
Other interests in real estate are rights in the nature of easements or of security by mortgage or by distraint (garnishment) of assets.
In addition to exclusive ownership, the French system recognizes the division of ownership between a right of usufruct (a right to receive the income and produce from real estate without outright ownership) and a bare ownership (ownership without the right to use and derive profit from the property) as well as timeshare arrangements.
In addition to exclusive ownership there is also joint ownership or condominium ownership (where individual units in the same building can be owned by different people) (Wohnungseigentum), and hereditary building rights. Hereditary building rights are long-term leases (often of 99 years) which include the right to erect and maintain buildings on a property. They are registered in the land register and can be encumbered with mortgages and land charges in the same way as full ownership.
The concept of leasehold under German law is different from that in a number of other countries including the UK. In Germany a lease is only a contractual right relating to the leased property, while ownership gives full rights over the property.
Finally, there is the possibility of becoming the holder of a right of residence in rem. This gives you the right to proceed with the property as if you were the owner, without becoming the owner. Since this is registered in the land register, it is stronger than the right from a simple tenancy.
An interest in land/real estate can either be held under freehold or leasehold ownership. If you acquire a freehold property, you acquire the exclusive right to both the building and the land where the building is erected on. A freehold owner can use and make alterations to the building as it wishes so long as it acts lawfully. On the other hand, if the property is held under leasehold ownership, the acquirer, namely the lessee, only acquires a right to use the property excluding the land beneath it for a limited period of time known as the term. Anything done to the property is governed by the terms of the lease.
In Hong Kong, since 1997, all land has become the property of the People's Republic of China while the government of the Hong Kong Special Administrative Region is responsible for its management, use and development. In other words, every piece of land in Hong Kong (with the sole exception of St. John's Cathedral, the only freehold property in Hong Kong) is leasehold property .
When the government decides to release land for building it usually does this by selling the land (or ‘parcel’ or ‘lot’) at an auction. Legally speaking, the government does not sell the land; it sells the right to occupy it for a term of years. This system gives the Hong Kong Government as the grantor a high degree of control over the way in which land is developed and used through covenants and conditions imposed on the grantee and contained in the lease. Since 1997, the term granted to the lessee has been 50 years from the date of the grant.
In the past, the government as lessor would issue a Government Lease to the purchaser (usually a developer) (as the lessee). Nowadays, instead, the government executes Conditions of Sale/Exchange/Grant/Re-grant/Extension depending on the purpose of grant. These are contracts giving a conditional right to the purchaser which will be converted to a form of legal ownership upon compliance with all the conditions stipulated. After a successful acquisition of the land, the purchaser (who is usually a developer) will recoup his investment in the construction and make a profit before the term runs out. Once a unit is sold or if the entire building as a whole is sold to a property company, the developer ceases to be involved. The purchasers take its place and they will also be able to sell their leasehold interests later or to assign the right to use to new tenants.
In Hong Kong where supply of land is limited, real estate is usually developed in form of a multistorey building. Under this system, the entire land and building is notionally divided into a number of undivided shares which are allocated to different flats. The sale of flat to a purchaser is effected by transferring the relevant undivided shares attached to the flat. Legally speaking, as the division of land into shares is only notional, all the flat owners own the land in common. For practical reasons, exclusive possession of a flat is at the same time guaranteed by execution of a document called a ‘deed of mutual covenant’ involving the developer, the first purchaser and sometimes the management company. Therefore, each flat owner, by assignment, owns a number of undivided shares in the land together with the exclusive right to occupy his/her flat.
Apart from a leasehold interest, a purchaser also enjoys an easement, meaning the non-exclusive right to use another’s land in a particular way for the benefit of the use of one’s own land. This is a proprietary interest which can be granted expressly, impliedly or by statute. Examples are a right of way and a right to park cars on neighbouring land.
In the case of a multi-storey building, the tenants also enjoy the right to use the common parts of the building, which refer to those parts which are not delineated as being for the exclusive use of one tenant in the deed of mutual covenants. Common examples are the corridors and staircase. This right can be expressly specified in the first assignment, Deed of Mutual Covenant and Sub-Deed of Mutual Covenant (if any) or implied by the Building Management Ordinance.
Under Hungarian law the following rights may be exercised in relation to real estate:
The owner of a building built on land has the right to use the land during the life of the building.
A right to possess, use and collect income and other proceeds from a property owned by someone else.
This is similar to usufruct, but the individual can only use the property to meet his or her own needs and those of his or her relatives living in the same household.
These are granted to enable an individual to use someone else's property for a specific purpose or require the owner to refrain from certain activities.
The mortgagee is entitled to sell the mortgaged property in order to recover unpaid claims secured by the mortgage.
The beneficiary of the call option is entitled to purchase the property at any time within the option period on payment of the agreed purchase price.
The beneficiary of the put option is entitled to sell the property at any time within the option period for the agreed purchase price.
The beneficiary of the pre-emption right is entitled to purchase the property on the same terms and conditions as a purchase offer made by a third party.
Legal ownership of property in Ireland is divided into freehold and leasehold. A wide range of possible interests in real estate exists, ranging from a week‑to‑week tenancy to exclusive ownership.
Other interests in commercial property include short leaseholds for terms of up to five years and long leaseholds for terms of 20 years or more. In the case of a lease term in excess of five years, a commercial tenant may acquire a right to renew after five years.
Property rights under Italian law include the following:
Property rights, including the right of full ownership of real estate, may be co-owned by two or more persons, companies and/or other legal entities. The co-ownership can be established on a “voluntary” basis (where agreed by the parties involved) and/or on a “legal” basis (where set forth by applicable laws, as in the case of hereditary co-ownership). Each co-owner has the right to divest its quotas on the co-ownership but cannot dispose of the entire co-owned real estate.
Co-ownership can also take the form of condominium: usually in relation to housing but also, in certain cases, to shopping malls where different units in the same building and/or different buildings in the same real estate complex are owned by different owners but some of the areas and services are used by the owners collectively. The members of the condominium have a right of co-ownership over the common assets which are proportionate to the value of their respective interests in relation to the value of the entire building/real estate complex. The rights of co-ownership in a condominium are expressed in millesimi (ie participation interests calculated on the basis of 1/1,000 ratio) and listed in a millesimal chart; the millesimal quota represents the value of the voting rights of each member of the condominium and, normally, also the parameter on the basis of which the condominium charges are allocated.
Ownership of real property and trust beneficial interest representing real property can be acquired. Ownership, includes, without limitation, ownership of strata title (not a whole building). In addition to exclusive ownership, joint ownership is possible. There is no ownership of real property for certain period of each year. Therefore, timeshares are often structured using not ownership but ‘use right’ of real property.
The main types of property right in the Netherlands are:
Prior to the enactment of the Land Use Act, 1978 (“the Act”), land could be held under freehold ownership in Nigeria. However, the Act now vests control and administration of all land within the territory of a State in the Governor of the State. By this, freehold ownership has been abolished and converted to leasehold ownership. The Act also empowers the Governor of a State to grant rights of occupancy over lands within the State for a maximum term of 99 years. By Section 49 of the Act, title to land can be held by the Federal Government or any of its agencies.
Private ownership of land is recognized but it is subject to the rights of the State Government or Federal Government to the reversion of the interests after the expiration of the term granted to the owner, such terms of years on expiry are renewable continuously subject to compliance with the conditions of grant and renewal imposed by the State.
Also, private ownership of land can before expiry of the term be terminated by revocation for breach of the terms of the grant or provisions of State regulations or by State acquisition where the property or land is required for public use or purposes.
Interests in real estate ownership can be classified under Norwegian law as follows:
In addition to absolute ownership which gives title to real estate with the broadest legal rights, Polish law also recognizes perpetual usufruct rights. These are transferable, alienable and mortgageable rights to use property.
Perpetual usufruct can be granted in relation to state-owned (and situated within the administrative borders of a city or beyond those borders but within the area included in the development plan for a city) or local-government-owned real estate for a specified period of time of between 40 and 99 years, after which it expires unless extended for another period of between 40 and 99 years. Buildings and other installations situated on land that is subject to a right of perpetual usufruct are owned by the perpetual usufructuary.
The usufructuary is required to pay an annual fee to the state or the local government unit. The broad rights granted to the usufructuary result in the rights of the owner (ie the State Treasury or local government unit) being limited in that he may neither encumber nor sell the property to a third party other than the usufructuary.
Polish law also provides for the following real estate interests:
In Portugal, the property rights that can be acquired are the following:
The “right of ownership” entitles the owner to full powers including the following rights – to possess, to use and to dispose of the property.
“Common ownership” can be either:
The beneficiary of a “superficies right” has a complex right consisting of:
A superficies right can be transferred only through a deed authenticated by a notary public and only together with the ownership of the building (as opposed to the ownership of the land, which can be transferred independently). A superficies right can be granted for a period of no more than 99 years, with an option to renew.
A “right of usufruct” is a right for a person to hold and use an asset owned by another person and to benefit from its products. The beneficiary of the right of usufruct cannot sell or otherwise dispose of the relevant asset and cannot alter the asset's substance in any way, but can assign the right. A right of usufruct can be granted for:
A “right of use” is the right for a person to hold and use an asset owned by another person and to take its products (except from products resulting from the conclusion of agreements related to the asset), but only for household needs. The beneficiary of a right of use cannot assign its right. A “right of habitation” has the same characteristics as a right of use but applies where the property is a dwelling.
“Easements” are the rights for the benefit of the owner of one plot of land (the dominant tenement) in relation to a plot of land owned by another person (the servient tenement).
A “concession right” is a right and at the same time an obligation for a person, granted following a public tender procedure, to use part of the private or public property of the Romanian state or its administrative bodies for a limited period of time (ie a maximum of 49 years with the possibility of an extension for a further period equal to half of the initial duration).
There are following categories of property rights under Slovak law:
The following property rights are recognized under Spanish law:
The only existing form of complete and absolute ownership in Sweden is the freehold. A property may also be held by site-leasehold (tomträtt), a form of leasehold. A site-leasehold may only be granted for property owned by the state, a municipality or other public body. Site-leaseholds are granted for an indefinite period of time and may only be terminated in very specific situations. In return, the site-leaseholder pays a fixed annual fee which can only be renegotiated every 10 years or more. A site-leaseholder is therefore considered to be in a similar legal position to an owner of the property. Site-leaseholds may be transferred and the holder can also raise mortgages assignable to the property.
There are two categories of property right that can be acquired: ownership and the right of possession.
In addition to exclusive ownership, the Thai Civil and Commercial Code recognizes the following rights:
An interest in land can consist of:
Usufructs and musatahas are investment interests allowing exploitation and development respectively as well as occupancy. Non-UAE nationals may only hold these interests within the designated investment areas, subject to the time limits which apply. A standard form musataha agreement has been introduced for use within Abu Dhabi for government-owned property.
A real estate owner can also grant non-exclusive rights, known as easements, to third parties to use the relevant land, such as granting a right of way. If correctly registered, easements are binding on any successors in title to the property.
In Abu Dhabi, a lease is a personal contract of hire, more akin to a licence and not an interest in land. Most non-owner occupiers in both the residential and commercial sectors are tenants under leases. Please see section on Commercial Leases for more information on leases in Abu Dhabi.
There are 10 categories of real estate interests that can be created in the Abu Dhabi Global Market free zone:
The real estate laws of Abu Dhabi in relation to usufructs and musatahas apply to such rights located throughout Abu Dhabi, including those located within the ADGM where such rights were created prior to 3 March 2015 (the date upon which the ADGM regulations came into force) and where no election has been made by the parties to the musataha or usufruct (as applicable) to convert the relevant agreement to a lease. Under the ADGM regulations, usufructuary and musataha rights are not recognised interests and so no further usufructuary or musataha interests will be created within the ADGM following the implementation of the regulations.
In Dubai, the following property rights exist:
An interest in land/real estate can either be held under freehold or leasehold ownership. Freehold is the highest category of ownership in England and Wales and, in most cases, effectively confers absolute ownership. Leasehold confers rights of exclusive possession and use of land for a limited period of time.
A real estate owner can also give non-exclusive rights, known as easements, to third parties to use the land, such as granting a right of way. If correctly registered, easements are binding on any future owners of the property.
As well as full ownership, it is possible to own property jointly with other parties, although this is not common where the parties are unconnected. In addition, interests under leases can be acquired and disposed of in the same way as freehold interests, subject to any limitations set out in the lease agreement.
A real estate owner can also grant non-exclusive rights to third parties to use the property, for example rights of access across the land. These rights are generally known as servitudes and are binding on the successors in title to the person who granted the original right, provided they are correctly drafted in the title document and registered. (It is also possible to acquire such rights through the principle of prescription if they have been used without objection for a number of years.)
An interest in land can either be held under fee or leasehold ownership. Fee ownership is the highest category of ownership in the US and effectively confers absolute ownership. Leasehold confers rights of exclusive possession and use of land for a limited period of time.
A real estate owner can also give exclusive and non-exclusive rights, known as easements and licenses, to third parties to use the land, such as granting a right of way. Recorded easements are binding on any successors in title to the property, whereas licenses are typically for a shorter duration.
In Zimbabwe there are two categories of property rights: real rights and personal rights
A real right is an exclusive interest or benefit enjoyed by a person in a thing. It is an absolute right and entitles the holder to enforce it against other persons. Real rights are registrable, while personal rights are not. Real rights include long leases and servitudes.
A personal right is a right that is enforceable against only a particular person and is based on the existence of a special legal relationship, such as a contract. It is a right from a person to a person. An example of this would be short-term leasehold.