Party Autonomy in International Property Law - Peace Palace Library

3. The Numerus Clausus and Party Autonomy in the Law of Property
right, that obligation will only be accepted as part of the property right if
it resembles an obligation to maintain and service land or buildings, or an
ancillary obligation to pay a charge for the use of the property of another.
Maintenance and ancillary payment obligations are the sole examples of
property obligations in faciendo forming part of the statutory content of
some types of property rights.
More often, parties seek to reduce or restrict the scope of a particular
property right. Three ways of doing this can be distinguished. The first
is where the grantor and grantee of the property right agree that only
certain specified powers will accrue to the grantee and not all the powers
normally arising from that property right. With respect to a right of
usufruct, this could mean limiting the statutory powers (usus and fructus)
to, for instance, the power to enjoy the physical fruits and the shade of
a tree owned by the grantor (but not the dead wood). With respect to a
servitude of way, this could mean restricting it to the right to enter the
property on horseback for the purposes of a fox hunt. Modification of a
property right by specifying and restricting the powers conferred on the
grantee – the power dimension – implies a deviation from the statutory
content of such right.
The second way in which parties attempt to restrict a property right is by
limiting its scope to a part of the property – the spatial dimension. The
classic manner of effecting a spatial delimitation of land is by vertically
splitting the parcel into two smaller ones. The Hoge Raad has held that
such a delimitation is also possible if there is a building on it, provided
that the building could, according to common opinion (verkeersopvattingen),
also be split into functionally and technically separate parts. 37
Much more doubtful is the validity of splitting the rights to a building into
horizontally separate parts. Increasingly, complex building projects are
legally structured by granting separate property rights for different layers,
such as a right of emphyteusis (erfpacht) for the underground parking and a
separate right of emphyteusis for the building’s foundations (the former being
limited to the underground space) plus one or more separate rights of
superficies (opstal) for one or more levels of the building above the ground.
It is often difficult to say whether the parties intended to create a property
right in respect of only part of the property or a property right in respect of
the whole property but conferring powers merely in respect of a specified
37
See in the Netherlands HR 29 May 1985, NJ 1986, 274 (Tandartsenpraktijk).
T.H.D. Struycken 73
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