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Project

Conversion and requalification of rights in rem

Characterization plays an important role in our legal system. If X wants to grant a right to use to Y, the Belgian legal system provides for a variety of different characterizations. Parties could opt for a personal right (e.g. lease, commodatum, etc.) or for a property right (usufruct, emphyteusissuperficies, an easement). Their choice is not only determines the civil legal consequences (rights and obligations, duration, etc.), but also the tax consequences (applicable tax regime). The numerus clausus principle in property law (Typenzwang and Typenfixierung) seems to provide for a clear demarcation between property rights and personal rights, but also between the different property rights. However, within the framework of the different property rights to use, there is only a small number of mandatory rules in Belgian law. Moreover, it is not always that ease to tell the difference between property and personal rights to use (e.g. between an emphyteusis and a lease). Parties enjoy a large freedom to 'shape' the (property) right to use according to their needs. The different (property and personal) rights to use are even used as alternatives for each other. The question arises how far parties kan deviate from the legal framework that is created by the legislator, without the judge concluding that the parties' common intention (which is the determining fractor for (re)characterization) requires the judge to conclude to a recharacterization of the right to use in question. Which provision and elements are parties free to deviate from within the framework of their right to use, withou the judge having to conclude that the parties' common intention better matches with another right to use, another characterization, than the characterization chosen by the parties themselves? That question arises, specifically with the context of rights to use, not only from a property law point of view (civil (property law) recharacterization), but also from a tax law point of view (tax recharacterization).

Date:1 Sep 2016 →  1 Sep 2020
Keywords:Recharacterization, Property rights, Rights to use
Disciplines:Law, Other law and legal studies
Project type:PhD project