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- a brief introduction to property law -
Property law distinguishes possession and ownership as two different legal concepts. They are used synonymously in everyday life but have a legally significant distinction. For example, if you were to rent a car that is later stolen, who is the owner and who is the possessor? This blog post allows you to discern the answer. If your questions go beyond a simple explanation of terms relating to ownership and property, our attorneys for property law in Frauenfeld, Zurich and St. Gallen are at your disposal.
According to Art. 919, para. 1 of the Swiss Civil Code, “effective control over a thing constitutes possession of it”. There are two constitutive elements to consider, the effective control and the will to control the object. Effective control is affirmed if there is an externally perceptible subject-object relationship between the owner and the thing. The will, on the other hand, is based on internal, subjective elements. The owner must also have actual will to control the object. At the same time, possession is not a right but a fact, unlike ownership. This means that the possessor does not have to have legal ownership of the object. It is sufficient for them to exercise effective control over it. Accordingly, the tenant of an apartment is not the owner, but the possessor of the apartment. After all, she exercises actual power over the four walls in which she lives and has the will to actually exercise this material control. Are you unsure whether you are the owner, co-owner or even the owner of a thing? Lawyers in St. Gallen, Zurich or Frauenfeld will be happy to answer your questions.
As mentioned in the previous section, property is a right. This right arises from a transaction of obligation, which can be of an obligatory or contractual nature (for example, a purchase contract). Relevant in terms of property law is then the ‘disposition transaction’, which means the act of acquisition. In the case of movable property, this is the handover of the object, and in the case of land, it is entry into the land register. However, the owner is not always the possessor of the object that belongs to him. For example, the owner of an apartment may rent it to a tenant. In accordance with Art. 920, para. 2 of the Swiss Civil Code, the owner has direct possession, and the possessor has derivative possession. The tenant now has effective control of the landlord’s property. In this case, the control of the property is substituted by an external possessor’s will. This form of control only exists as long as the tenant knows that he is ‘merely’ the tenant and not the owner of the apartment. If this were not the case, it would be a case of acquisitive prescription. Our team of specialized lawyers in tenancy law in Switzerland will be happy to answer any questions you may have in the area of tenancy law.
In our introductory case, a car that you have rented was subsequently stolen. The agency that rented the car to you is the indirect, independent owner of the car. Before the theft, you were the immediate, dependent owner of the rented car. Now, after the thief's unlawful interference, the car is no longer in your possession, but in the possession of the thief. As a result, the thief is now a non-entitled possessor of the car. Have you had something stolen? A lawyer in Zurich, St. Gallen or Frauenfeld will be happy to support you in your legal dispute.