Property law (Liechtenstein)

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The Property Law ( SR ) is a Liechtenstein Code, which governs the legal relationship between physical objects or animals on the one hand and people on the other. It is the right to assign goods in rem. The most comprehensive of all rights in rem is property . The property is not a right in rem, but merely an intentional actual physical control (debatable - owned Wille ). The physical objects include movable objects (Fahrnis) and land as well as rights equivalent to land . Animals have a special position. According to Art 20a SR, animals are not things. However, the SR does not explain what position animals have between things and people, and the provisions on things also apply to animals, unless there are statutory exceptions.

Property law is part of Liechtenstein civil law . Other important civil law codes in Liechtenstein are, for example, the ABGB , the ADHGB and the PGR .

Historical development

The first codification was property law in the Liechtenstein Civil Code (Civil Code), which consists of Austria in 1811 rezipiert had been introduced. When Liechtenstein turned to Switzerland at the beginning of the 1920s, the plan for a new Liechtenstein Civil Code (FL-ZGB) was also considered.

The property law (SR) is the first book of the originally planned new Liechtenstein civil code. The concept of the new FL-ZGB from the 1920s was to consist of five separate parts:

  • Property law (SR),
  • Code of Obligations (OR),
  • Personal and Company Law (PGR),
  • Family Law (FamR) and
  • Inheritance law (ErbR).

The FL-CC was originally largely from the Swiss Civil Code and OR rezipiert be. The ABGB, which has been in force in Liechtenstein since 1811, was to be completely replaced in return. However, the project has so far only been partially implemented (SR 1922 and PGR 1926 as well as the EheG 1973). Due to many European legal requirements by the EEA , a complete adoption of Swiss law since 1995 (accession of Liechtenstein to the EEA) is no longer possible en bloc.

Principles of property law

Liechtenstein property law has various principles:

Publicity principle / principle of publicity

Since real rights can be asserted against anyone, they must also be recognizable (obvious) to everyone. Publicity is ensured with various legal institutions. In the case of movable property, for example, possession is the medium of publicity, since it is linked to the presumption of ownership. In the case of land , the land register has the corresponding function. The change in the legal situation in rem on a movable property therefore requires a transfer of ownership, whereas an entry in the land register for real estate. In principle, the legal presumption applies that the publicity carrier is also the person entitled in rem.

Absoluteness

Property rights are absolute rights . As such, they are - in contrast to the relative rights of the law of obligations - protected and effective against everyone under civil law ( property suit , damages , injunctive relief ) and criminal law (especially through [property] offenses such as property damage , theft , robbery , embezzlement, fraud, etc.) (absolute effect). The principle of absoluteness brings about comprehensive legal protection through its real effect on everyone else .

Specialty principle

Property rights always relate only to individual things. According to the specialty principle (also known as the principle of specificity ), real rights can therefore only exist in relation to a very specific thing. Unlike the law of obligations, property law has no rights to generic matters . This means that only individualized items can be used. This is of course a principle not only of property law, but of all disposition transactions . For the transfer of a right in rem, this means that it must be precisely determined, or at least clearly determinable, to which right in rem a transfer relates.

Type constraint

The SR draws up a final list ( closed number - numerus clausus ) of the possible property rights. The legal subjects are not only bound to the typification of property rights, but also to the content of these rights by the legislature. Together with the disclosure principle, the type requirement ensures clarity for third parties. This legal certainty is necessary because the rights in rem are absolutely effective.

Real rights in the SR are:

Accession principle

According to the principle of accession, the ownership of the land also extends to all associated objects (e.g. buildings, plants and springs), according to the Latin saying superficies solo cedit (the superstructure follows the soil - Art 47 SR).

Causality principle

Unlike in Germany, for example, property law disposals in Liechtenstein, Austria and Switzerland are dependent on a legal reason (the causa) (i.e. causal). The principle of causality is only stipulated by law for land (Art 555 para. 2 SR). However, the principle also applies to movable objects in accordance with legal doctrine and case law.

Formal requirement

Also in contrast to the (contractual) obligation transactions (property law) disposal transactions are generally subject to formal requirements (transfer of movable property, incorporation in the land register for immovable property).

Conflict of laws

Basic connection

The principle of the lex rei sitae applies to property rights : Property law issues are to be judged according to the law of the state in which the property is located. This applies to movable and immovable things. In this way, traffic interests are best served and legal traffic does not have to reckon with burdens on the matter that are unknown to domestic law . In the case of real estate, this often means that the court jurisdiction and applicable law are in sync.

Scope of the property law statute

The term physical thing is not clearly defined in Liechtenstein. In the case of securities, only the right to paper is subject to the property law statute ( lex cartae sitae ). The securitized right is to be assessed according to the securities law statute. The property law determined determines the permissible types and content of rights in rem. The property law statute determines the emergence, continuation and loss of real rights.

Change of statutes

Movable items can easily lead to a change in the statutes. Here traffic interests and the protection of vested rights are to be reconciled. In the case of open facts , a decision must be made in full according to the new statute.

literature

Individual evidence

  1. ↑ Physical things fall into the senses , incorporeal things do not. Physical things also include incorporeal natural forces (e.g. energy) which can be subjected to human rule (Art. 171 SR).
  2. ↑ The distinction between movable and immovable things is a very important differentiation in property law. Movable things can be moved from one place to another without damaging their substance. Objects that were originally movable and are built into a house become part of the immovable object (house) and thus become immovable themselves.
  3. ↑ See Art 34 Para. 2 SR, according to which land is: real estate, independent and permanent rights recorded in the land register, mines and co-ownership shares in land.
  4. ↑ LGBl 4/1923.