Property Part B : The Rights and Transfer of Property
In Part A of this article on Property we mainly tackled the definition of the term, provided some insights on the etymology of the word «περιουσία» (property), and organized our subject into concepts, categories, and types.
There are other important aspects to the notion of Property, which are crucial in understanding its meaning and many legal functions.
You have the right to full ownership
Another way to classify the different types of ownership would be to examine the extent of powers the owner(s) have over a particular property.
– Full ownership – The owner has 100% rights over the property. The owner can fully enjoy the property, occupy it, inhabit in it, sell it, mortgage it, rent it out, donate it, cultivate it, and so on. It goes without saying that this type of ownership is limited by neighboring rights, by statutes limiting its extent, by zoning laws, by building codes, by the public interest in general, and by a variety of local ordinances, traditions, special provisions, or morals and ethics.
– Co-ownership – The owner(s) share different percentages of the whole property, which can be either inseparable (each owner keeps their percentage on every “molecule” of the property, but the whole cannot be divided), or separable (each owner owns a distinct divisible part of the property).
– Bare ownership – The owner cannot “use” the property at all, but they can sell/transfer title.
– Usufruct – The holder can only “use” the property [inhabit, cultivate, rent out, collect its “fruits” (rent, produce, minerals, wood, etc.)], but they cannot sell/transfer title. On a side note, when the holder of the right to usufruct passes away, then all those rights are transferred to the holder of the bare ownership to form a full, 100% ownership of the property. Thus, in Greece, many parents donate to their children the right to bare ownership of their property. This ensures their enjoyment of their property for life and solves the issues of drafting wills or dealing with intestate succession.
– Easements and Servitudes – When one property is empowered with a limited right over another neighboring property (for example an owner of a landlocked property can pass across another property to reach the road) or when a person is entitled to a right over someone else’s property (for example an owner of an arid parcel can draw water from a neighboring parcel’s well to water livestock or crops).
– Possession of property – To physically enter and occupy property with the mindset of a rightful owner. This concept is very important in determining the elements of adverse possession (Generally speaking, if someone occupies real property openly and aggressively for 20 years with the mindset of a rightful owner, they can claim ownership to that property through adverse possession. Claiming property rights through adverse possession is a vast and interesting subject, deserving an article on its own)
– Mortgage – A debt instrument, secured by the collateral of specified real estate property, that the borrower is obliged to pay back with a predetermined set of payments. A mortgage is a very serious and heavy burden on any property. It will stay attached to the property for as long as the debt is owed. Only when the full amount of debt, plus interest and expenses, are paid will the mortgage be eliminated. Another debt instrument, most commonly used is the “mortgage pre-notation” (not as heavy as a full blown mortgage, but much cheaper, and as secure).
Obtaining rightful ownership of property
Greek law recognizes a few ways one may obtain ownership:
– Compulsory Expropriation – The act of depriving an owner of their private property for public use.
– Adverse Possession – The person, who possesses a chattel or immovable property for a number of years, can claim ownership of that property.
– Court Decision – A court awards the ownership of a specific property, after litigation, to the winning party.
– Validation and award – This is an act by a public authority that strips away ownership from one individual and assigns it to another.
– Permanently attaching a chattel to an immovable property transfers ownership to the owner of that immovable property (Fixing tiles to the floor of a house literally transfers ownership of the tiles to the owner of the house.)
– Permanently attaching two or more chattels creates co-ownership of the newly created chattel (For example, when two or more owners contribute parts to assembling a machine.)
– Permanently mixing (for liquid or gaseous chattels) or smelting (for solid chattels) creates co-ownership of the newly created mix.
– Speciation – The person, who puts in a great amount of effort to transform one chattel into something completely new, will be considered the owner of the newly created chattel.
– Separation – The person, who separates the fruit from the tree, is considered to be the owner of the fruit.
– Possession of lost, abandoned, or misplaced items – (Finders – keepers…).
– Finding treasure gives ownership of the treasure to the finder (unless the treasure consists of ancient relics, which belong to the state).
Transfer of property
There are predetermined ways that property can be transferred, depending on whether it is real estate, chattels, intellectual property, or some other above mentioned right.
Real estate is transferred either a) through a deed drafted by a Notary Public and signed by the seller and buyer, or b) through a Court Decision awarding the real property to one of the parties in the litigation, or c) through an auction report after the confiscated property has been put up for auction. Every type of real estate transfer must be registered with the Public Registry or the National Cadastre.
Movable property can be transferred without any document type, simply by passing over possession of the chattel from the seller to the buyer. For those specific and regulated movable objects, licensing and registering will most likely be required for the transfer to take place.
Safeguard what is yours
Because (as the famous troubadour characteristically sang) “We are living in a material world…,” it is very important to understand the different types of property, to keep track of our belongings, to protect our livelihood, and to take full advantage of its potential through wise investments and prudent decisions. With more than two decades of legal experience, I am ready to assist you in that respect.
I encourage you to ask questions in the comments below.