What is property and types of property
Ownership and Possession - An exemplary explanation
1. The property
Property is a right in rem. Really means that you have a certain right to something that applies to everyone. Ownership is the most extensive right in rem. It gives the owner, i.e. the holder of the right, all powers over a thing, as long as these are not limited by law or agreement. In other words, whoever owns a thing can do anything with it that is not prohibited or contractually excluded. If the mother of the Schweizer family wants to embellish her brand-new car with colored dots, she can do so without further ado if she is the owner of the car. However, if she has rented or leased the car, she is not the owner and may only use the new car in accordance with the contractual agreement. Likewise, the father of the Schweizer family can give away or sell his own cookbook collection to third parties, even if the other family members do not agree.
Each state can determine the structure of property law and the types of property itself. For example, when the civil code was introduced in 1912, the Swiss legislature did not provide for condominium ownership known from previous cantonal laws. This form of ownership was only reintroduced in 1965. Differences can also be seen in an international comparison. For example, legal systems in socialist states often only know private property to a limited extent.
An important characteristic of property is its effect on third parties. Whoever is the owner can exclude third parties from using it. The daughter of the Schweizer family can therefore easily prevent a classmate from reading her diaries, destroying them or otherwise coming into contact with them. Accordingly, our legal system makes special lawsuits available to owners to protect their property rights.
In everyday life, property is often equated with property. A person is legally the owner of a thing if he has actual control over it. In contrast to ownership, ownership is more related to actual than legal circumstances. For example, if the daughter of the Schweizer family borrows a cookbook from her father, she is the owner of the cookbook. The owner, however, always remains her father.
The distinction between property and possession enables an owner to make his property available to third parties without having to give up ownership of it. He remains the owner. The institute of property then also protects the rightful owner against interference by third parties. This can be shown using the example of the sons of the Schweizer family: The older son of the Schweizer family owns an apartment. If his property right to the apartment is impaired by a third party, he can take legal action against property under the Swiss Civil Code. For example, he can legally enforce the surrender of the occupied apartment. In contrast, the younger son of the Schweizer family lives as a tenant in a rented apartment. He is only the owner of the apartment. The landlord remains the owner of the apartment. If property had no special position in the Swiss legal system, the younger son of the Schweizer family, in the same situation, would not be able to reclaim his apartment from occupants as easily as his older brother. Rather, the owner would have to be involved. Since the Swiss Civil Code also provides for appropriate legal means for owners, the owner does not need the support of the owner and can enforce his rights himself.
3. Types of Ownership
In Swiss law, a distinction is made on the one hand between real estate and driving license, on the other hand between sole ownership and joint ownership. The latter can be divided into simple and qualified co-ownership and total ownership.
3.1 Real estate and driving license
The owner of a property is the landowner. In contrast, the owner of a movable object, e.g. a car, is the owner of a driving license. What is less well known is that certain rights to real estate are also classified as real estate. If the mother of the Swiss family is the beneficiary of an independent and permanent building right entered in the land register, she is also the landowner, even if she is not the owner of the property on which the building right was established. The landowner is also the eldest son of the Schweizer family, who owns a condominium apartment. An independent co-ownership share in a piece of land is in turn considered to be a piece of land and, like all pieces of land, represents real estate. Everything that falls into one of the property categories specified by law is considered to be real estate. Everything else represents driving license ownership.
The distinction is important because special provisions apply to property ownership and driving license ownership. Particular legal regulations must be observed, especially when transferring ownership. A purchase contract for the house of the Schweizer family must be notarized. If the younger son of the Schweizer family would like to do the same as his brother and also buy an apartment, it is highly recommended that he consult a notary beforehand.
3.2 Sole and joint ownership
If you are the sole owner, you own one thing and can dispose of it yourself. For example, if the daughter of the Schweizer family has bought a notebook just for herself, she is the sole owner and does not have to ask anyone before she has it. If, on the other hand, ownership of a thing belongs to several people at the same time and in the same way, it is called "joint ownership". The phrase “in the same way” refers to the legal status of the people. Joint owners have qualitatively the same legal status with regard to the property. The two sons of the Schweizer family share the same drilling machine, which is paid for in equal shares; it is therefore a matter of common property.
The joint ownership can be either simple or qualified joint ownership or joint ownership. A special, personal community relationship is required for joint property, which only exists in the cases provided for by law (e.g. communities of heirs, simple societies and community of property). For example, if the two sons of the Schweizer family buy furniture for their hobby workshop, which they run as a simple company, this represents joint ownership. This means that neither the younger nor the older son can sell the furniture independently; the community generally has total property at its disposal.
In contrast, co-ownership does not require any personal community relationship. The two sons of the Schweizer family can therefore buy a car for private use together. Each co-owner can exercise his rights proportionally and, in the absence of any other agreement, freely dispose of his share. However, this does not apply equally to co-ownership of a property: In the case of property in co-ownership, the co-owners have a statutory right of first refusal vis-à-vis non-co-owners, which, however, can be contractually excluded.
With simple co-ownership, the property of each co-owner extends to the whole thing. The car of the sons of the Schweizer family belongs to both of them and they can each dispose of their share of co-ownership individually. As a result, the younger son can sell his share to his sister.
In the case of qualified co-ownership, better known as condominium ownership, the co-ownership share is associated with a special right. Due to this special right, the exclusive use of a certain part of the co-ownership can be ensured. The eldest son of the Schweizer family can therefore use his apartment alone. No other condominium owner (co-owner) has the right to live there as well. He can then freely dispose of his share of the condominium, since, in contrast to simple co-ownership, there is no statutory right of first refusal in condominium ownership.
With the legal regulation of property and possession, a smooth use of the things available to us is achieved. In this way, for example, it can be guaranteed in the future that the neighbors in the case of condominium ownership will not be able to confiscate the apartment of the eldest son of the Schweizer family despite their co-ownership. As the various examples have shown, it is important that the various instruments and vessels made available by the legislature are correctly selected and used. For larger purchases in particular, it is therefore important to think about the optimal form of ownership and to get advice on this beforehand.
Dr. iur. HSG
Lawyer and dipl. Architect HTL
Specialist attorney SAV construction and real estate law
chkp. Lawyers Notary's Office
with the assistance of MLaw Sandra Janine Schneider
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