Real Obligations at the Edge of Contract and Property

A real obligation can be defined as “a positive or negative obligation of a proprietary nature, imposed on the holder of a property right, to the benefit of the holder of a coexisting property right.” Examples of real obligations are the periodical payment obligation of a long lease holder, the maintenance of the property subject to a servitude and the financial contributions by apartment owners.

A real obligation differs in several aspects from a personal obligation. Both creditor and debtor must, for instance, hold a property right. A real obligation is moreover so closely connected to a property right that the obligation transfers automatically to the transferee of the property right. The liability of both the transferor and transferee for real obligations are analysed in detail in the thesis. The legal effect of abandonment of the property right, which can be unilateral in French and Belgian law, on the liability for real obligations is also studied.

Party autonomy plays a role in this research in two regards. Firstly, it is possible to add a real obligation with proprietary effect to a property right if (i) that obligation has a sufficient connection with the right and (ii) it does not affect the essence of that right. Secondly, there should de lege ferenda be a broader possibility for obligations which are on the creditor’s side not connected to a property right, but merely to a person (as person). Such ‘autonomous real obligations’ already exist in current French, Dutch and Scottish law, but not in Belgian law.