Property Law Perspectives III

Elien Dewitte studied law at the universities of Kortrijk and Leuven (2011, magna cum laude). Since september 2011 she is a fulltime researcher at the Institute of property law at Kulak campus Kortrijk where she prepares a PhD about actual generalities of goods in private law. She is also responsible for the tutorial services on contract law. Dorothy Gruyaert studied at the KU Leuven and the University of Stellenbosch. After her graduation in 2011, she started working at the Institute for Property Law of the KU Leuven as a full time teaching assistant and PhD Researcher. Her doctoral thesis is about the exclusivity of ownership and is supervised by prof.dr. V. Sagaert en prof.dr. A.-L. Verbeke.

• CONTENTS Preface PART I. CONSTITUTIONAL PROPERTY LAW The Voluntary Guidelines on the Responsible Governance of Tenure: Distilling Good Governance Standards for Expropriation Procedures (Bjorn Hoops) 1. Voluntary Guidelines on the Responsible Governance of Tenure 2. The Guidelines on Expropriation Procedures, Transparency and Participation 2.1. Participation and Transparency 2.2. The Menschenbild of the Guidelines 2.3. The Provision of Information to the Public 2.4. The Access to the Procedure 2.5. The Form of Participation 2.6. Obligation to Balance Interests and to Give Reasons 3. The Road Ahead 4. Concluding Remarks Bibliography A Comparison between the Extension of Security and Tenure Act, 1997 and the Land Tenure Security Bill (Marilie van Wyk) 1. Introduction 2. Background 2.1. The Land Redistribution Programme 2.2. The Land Restitution Programme 2.3. The Land Tenure Reform Programme 3. Draft Land Tenure Security Bill 3.1. Purpose and Objectives of the Land Tenure Security Bill 3.2. A Brief Analysis of the Extension of Security and Tenure Act 62 of 1997, the Land Reform (Labour Tenants) Act 3 of 1996 and the proposed Land Tenure Security Bill of 2010 4. State Duty 4.1. Constitutional Validity 4.2. Mirror Mirror - 5. Conclusion Bibliography New Imperialism (1870 - 1914) on the African Continent: How Natives' Landownership was Brought under the Yoke of European Sovereignty (Mieke van der Linden) 1. Introduction 2. New Imperialism 3. Property Rights in the 19th Century 4. Theoretical Premises 5. European and African Perspectives on Property Rights to Land 5.1. Land Law according to the European Conceptualisation 5.2. African Land Law 6. African Natives' Landownership within the Age of New Imperialism 7. Concluding Remarks Bibliography Norwegian Waterfalls: A Case Study of Commercial Expropriation in Light of Property as a Human Right (Sjur K. Dyrkolbotn) 1. Introduction 2. The Fair Balance that cannot be Achieved through Market Value Compensation 3. Market Value, but Whose Market? The New Approach to Compensating Waterfalls 4. Owners, but not Stakeholders: No Revision of Administrative Practices regarding Hydropower Development 5. Conclusion Bibliography PART II. CURRENT DEVELOPMENTS IN PROPERTY LAW AT THE NATIONAL LEVEL Determining the Property of Virtual Property (Wian Erlank) 1. Introduction 2. The Methodology for the Propertisation of Virtual Objects 3. Is it Virtual Property? Concerning the Characteristics of Virtual Property 4. Conclusion Bibliography The Development of the Distinction between Real and Personal Rights in South African Case Law: A Critical Perspective (Marda Horn) 1. Introduction 2. The Development of the Distinction between Real and Personal Rights in South African Law 2.1. Common (Roman Dutch) Law Position 2.2. Further Development of the Subtraction Test in Case Law regarding the Payment of a Sum of Money 2.3. Most Recent Development of the Subtraction Test in Case Law 3. Evaluation of the Twofold Subtraction Test 4. Possible Future Development of the Test 4.1. Follow the Road of the Ius Commune? 4.2. Follow the Intention of the Parties? 3. Conclusion Bibliography State Guaranteed Title: The Land Registration Act 2002 (Emma Lees) 1. What is Guaranteed by Section 58? 2. When is Registration Mistaken? 3. What Happens Where There Is More Than One Registered Title? 4. When Should the Register be Rectified? 5. How Should the Registration System Respond to Fraud? 6. Drawing the Threads Together 7. Law Commission Approach 8. Conclusion Bibliography Abbreviations The Reform of Security Law in Belgium (Eric Dirix) 1. Introduction 2. Present Situation 3. Reform 4. Importance of Comparative Law 5. Objectives of the Reform 6. Main Features of the Act 7. Registration 8. Conclusion Clarity regarding the Acquisition of a Right of Way of Necessity: A South African Perspective (Tshilidzi Norman Raphulu) 1. Introduction 2. Acquisition of a Way of Necessity 2.1. Operation of Law 2.2. Court Order 2.3. Agreement 2.4. Registration 2.5. Duty to Negotiate 3. Conclusion Bibliography PART III. PROPERTY LAW IN A EUROPEAN AND INTERNATIONAL PERSPECTIVE A Comparative Analysis of the Effect of the Lien against Third Parties (Merel Heilbron) 1. Introduction 2. The Definition of Right In Rem in the European Insolvency Regulation 3. Lien: the Concept 4. Requirements for the Lien 5. Dutch Law 5.1. Introduction 5.2. Effect of the Lien against Other (Secured) Creditors 5.3. Effect of the Lien against the Real Owner 5.4. Interim Conclusion 6. Belgian Law 6.1. Introduction 6.2. Effect of the Lien against Third Parties: Other Secured Creditors 6.3. Effect of the Lien against the Real Owner 6.4. Interim Conclusion 7. Future Belgian Securities Law 8. Comparison between Current Dutch and Belgian Law 9. Concluding Remarks Bibliography Abbreviations The Protection of the Trust Fund: A Comparative Study in French and English Law (Rafael Ibarra Garza) 1. Introduction 2. Preventive Measures of Protection 2.1. Protecting the Trust Fund from the Trustee 2.1.1. Duty of Loyalty 2.1.2. Duty of Care 2.2. Protecting the Trust Fund from Strangers 2.2.1. Ownership of the Trust Property as a Means of Protection 2.2.2. Ring Fencing the Trust Property as a Means of Protection 3. Corrective Measures which Protect the Trust Fund 3.1. Protecting the Trust Fund by Personal Remedies 3.1.1. Remedies for the Enforcement of the Trust 3.1.2. Remedies Restoring the Loss Caused to the Trust Fund 3.2. Protecting the Trust Fund by 'Real' Remedies 3.2.1. True Real Remedies in English Trust Law 3.2.2. False Real Remedies in French Law 4. Conclusion Bibliography Abbreviations New Challenges for the Global Art Market: The Enforcement of Cultural Property Law in International Trade (Francesca Fiorentini) 1. Conflicting Values in the Global Art Market 2. The Legal Structure of the Global Art Market 2.1. Hard-Law Rules: International Law 2.2. Hard-Law Rules: International Trade Agreements 2.3. The Lack of Coordination between the Hard-Law Supranational Regimes 2.4. Soft -Law Rules: A Double Role to Play in the Global Art Market 3. The Judicial Enforcement of Cultural Property Law: Potential and Limits 3.1. Enforcing Cultural Property Law through Human Rights Law and Fora 3.2. Enforcing Cultural Property Law through International Investment Law and Arbitration 4. Concluding Remarks Bibliography How Far Factory Machinery Follows the Land in England, France and Germany (Shaun Charlton) 1. The National Classifications of Property into Land and Not Land 1.1. Germany 1.2. France 1.3. England 2. The Legal Relationship 2.1. Of the Manufacturer to the Movable 2.1.1. An Ordinary Sale 2.1.2. Leases of Movable Property 2.1.3. Sales with a Security Element 2.2. Of the Manufacturer to the Land 3. The Physical Relationship 3.1. Machinery Resting on the Factory Floor by Sole Force of Gravity 3.2. Machinery Specially Adapted to the Factory Building 4. Conclusion Bibliography