Summary

In chapter 1 I introduce the subject of this doctoral dissertation: modification of limited rights. There are numerous (practical) examples of such modification, such as an extension or limitation of the powers of the holder of a limited right, an extension or shortening of the duration of a limited right, an enlargement or reduction of the object of a limited right and a change in the ranking order of limited rights. This research study focuses on a modification of content and ranking order of limited rights. I have examined the potential legal grounds for such a modification, the requirements for application of those legal grounds and the legal consequences of such application. In addition, I have examined whether the law as it stands contains inconsistencies, gaps or defects and how such inconsistencies, gaps and defects can be corrected. In addressing these questions, German law has served as a source of inspiration, argument or justification. The various legal grounds are divided into three categories.

In chapter 2 I address a modification of limited rights by the court. Book 5 of the Dutch Civil Code (hereinafter BW, abbreviation for Burgerlijk Wetboek) provides for various judicial powers to modify limited rights. Firstly, Art. 5:78, opening words and subsection a, Art. 5:97 and Art. 5:104, subsection 2, in conjunction with Art. 5:97 BW, state that a court can decide to modify (or repeal) an easement, a leasehold or an independent right of superficies if, owing to unforeseen circumstances, the ultimate titleholder or the holder of the limited right cannot be expected to maintain the limited right in unaltered form, considering the standards of reasonableness and fairness. In addition, Art. 5:80 BW sets out that a court can modify an easement when, owing to unforeseen circumstances, the exercise thereof has permanently or temporarily become impossible or when the interest of the owner of the dominant property has lessened considerably, provided that such modification can be required of the owner of the servient property in all reasonableness and fairness. Unforeseen circumstances are circumstances that were not taken into account. Lastly, Art. 5:78, opening words and subsection b BW, states that a court may modify (or repeal) an easement if unaltered continuation of the easement as it is conflicts with the public interest. In order to apply this particular power unforeseen circumstances need not necessarily have occurred. Both government authorities and private individuals may request for modification due to a conflict with the public interest.

A systematic analysis has shown that modification by the court is also possible pursuant to judicial powers of modification contained in Book 6 BW. Art. 6:258, subsection 1 BW, sets out that the court may modify (or terminate) a contract owing to unforeseen circumstances that are such that the opposing party may not expect unaltered upholding of the contract under the standards of reasonableness and fairness. Art. 6:259, subsection 1a BW, provides that the court may modify (or terminate) a contract that creates an obligation with regard to property subject to registration if unaltered continuation of the obligation conflicts with the public interest. By (analogous) application of Art. 6:216 BW, these articles can also be applied to modify a limited right. This means that the judicial powers of modification in Book 6 BW apply to limited rights for which no specific judicial power of revision is provided in Book 5 or Book 3 BW. For example, modification of a right of mortgage owing to unforeseen circumstances is possible under Art. 6:216 in conjunction with Art. 6:258, subsection 1 BW. Modification of a leasehold owing to conflict with the public interest is for example possible under Art. 6:216 in conjunction with Art. 6:259, subsection 1a BW.

The existence of the various judicial modification powers in Book 5 and Book 6 BW also means that, when it comes to a body of facts, both a provision in Book 5 BW and a provision in Book 6 BW can apply. Modification of an independent right of superficies owing to unforeseen circumstances is, for example, possible via Art. 5:104, subsection 2, in conjunction with Art. 5:97 BW, but also via Art. 6:216, in conjunction with Art. 6:258 BW. The point of departure in case of concurrent provisions is that a litigant can choose which rule of law to invoke. In principle there is as such no exclusivity of rules of law. However, in this case an exception must be made to that principle. The modification powers pertaining to property law in Book 5 BW differ from those regarding the law of obligations in Book 6 BW in certain respects. For example, a contract pursuant to Art. 6:258, subsection 1 BW can be modified (or terminated) with immediate effect, whereas an independent right of superficies cannot be modified, under Art. 5:104, subsection 2, in conjunction with Art. 5:97, subsection 1 BW, until twenty-five years after it is established. This limitation loses its impact if the provision pertaining to property law does not have exclusive effect in relation to the provision pertaining to the law of obligations.

The existence of the provisions pertaining to property law in Book 5 BW does not, however, prevent application of the provisions regarding the law of obligations in Book 6 BW, meaning that a modification has effect only under the law of obligations. After all, the parties involved can also modify their legal relationship strictly with effect under the law of obligations. In this way, a modification pursuant to the law of obligations can, for example, take place twenty years after the establishment of an independent right of superficies. The existence of the provisions pertaining to property law likewise do not prevent application of Art. 6:248 or Art. 3:13 BW. By (analogous) application of Art. 6:216, in conjunction with Art. 6:248 BW, or by way of Art. 3:13 BW, only a result under the law of obligations can be achieved in principle. However, an effect under property law can be achieved by designing the claim as an obligation to cooperate with the modification, or by arguing that application of a waiting period of, say, twenty-five years under the rule of property law is unacceptable according to standards of reasonableness and fairness, or that it leads to abuse of power.

Application of the judicial modification powers under property law does not lead to a fair result in every case. That is because, on the one hand, transitional law specifies that the court may not take unforeseen circumstances into account with regard to the modification if those circumstances occurred prior to the date the current Civil Code entered into force and, on the other hand, because certain regulations determine that the limited right can only be modified twenty or twenty-five years after its establishment. The relevant provisions pertaining to transitional law and the waiting period should be discarded. However, under Art. 75 of the Transition Act (Overgangswet) or Art. 6:248, subsection 2 BW, it can be argued that application of transitional law or of the waiting period is unacceptable according to the standards of reasonableness and fairness. Aside from that, Art. 6:248, subsection 2 BW can be invoked directly, since a different regime of transitional law applies to that provision and since this article does not mention any waiting period. In this regard, the court should take into account the stability that may be expected in property law.

The grounds for annulment that apply for clauses contained in general terms and conditions are also relevant for legal relationships under property law. Standard terms that wholly or partially determine the content of a limited right are regarded as general terms and conditions within the meaning of section 6.5.3 BW. Leaseholders often make use of standard long-term lease conditions, and banks regularly apply mortgage deeds with standard terms. Annulment of a condition that has effect under property law constitutes a modification of the content of a limited right. A clause included in general terms and conditions can be annulled extrajudicially, but the nullification will often be scrutinized in legal proceedings, partly because the court is obliged, in certain situations, to assess whether a clause in a consumer agreement is an unfair term within the meaning of Directive 93/13/EEG on Unfair Terms in Consumer Contracts.

Application of section 6.5.3 BW is in principle not precluded by transfer of a limited right. The legal successor of a leaseholder for example, can invoke annulment of Art. 6:233, opening words and sub a, by analogous application of Art. 6:216 BW. However, a change in the capacity of the leaseholder can impact the protection provided under section 6.5.3 BW. Regarding the scope of application of the rules governing general terms and conditions, it is necessary to consider the capacity of the leaseholder at the time the leasehold was established. If land is leased to a professional party with one or more long-term lease conditions that appear on the ‘black’ or ‘grey’ list, and the professional party then transfers the leasehold to a consumer, then the consumer cannot invoke the strong protection of the black or grey list. The consumer can, however, invoke Art. 6:248, subsection 2 BW. If land is leased to a consumer with one or more long-term lease conditions that are included on the black or grey list, and the leaseholder transfers the leasehold to a professional party, then the professional party can invoke the strong protection of the black and grey list, unless such invocation by way of Art. 6:248, subsection 2 BW, is unacceptable according to standards of reasonableness and fairness.

Chapter 3 discusses a modification by the parties. A consensual modification of the content of limited rights is not explicitly regulated by law, which leads to legal uncertainty regarding the requirements and legal consequences. Systematic analysis shows that a modification by parties can be one of three types: an unforeseen modification, a foreseen modification, and application of existing terms and conditions. In the first case, modification is the result of consensus among the parties at a later moment. For example, following the establishment of a pledge, the pledgor and the pledgee agree to add a power to repledge. In the second case, one of the parties is already bound to the modification. A superficiary may then, for example, have the authority under the conditions to extend his right of superficies for a specific period. In the third case, no ‘real’ modification is involved, since the change is sufficiently established in the legal relationship under property law. As an example, the ground lease conditions may stipulate that the ground rent is subject to indexation every three years.

A modification (unforeseen or foreseen) of a limited right by parties must be regarded as a supplementary establishment, a partial waiver, or a combination of the two. This implies that the modification is subject to Art. 3:98, in conjunction with Art. 3:84 BW, and the applicable article on delivery. A modification in terms of property law takes place if an action to modify is carried out, under a valid title, by someone who has power of disposition. For a modification resulting from application of existing terms and conditions, the requirements of Art. 3:98, in conjunction with 3:84 BW, do not apply. For each of the three types, the amendment leads to a continuation of the limited right in modified form, unless it is no longer possible to speak of the same right under generally prevailing opinion, or if it must be deduced from the intention of the parties that the parties have established a (partially) new limited right. For the parties involved the legal consequence is not as relevant as it is for third parties. For example, a third party only retains a limited right that is attached to the modified limited right in case of continuation occurs as a legal consequence. However, invoking an unforeseen modification against a third party who has a limited right requires permission if the modification is disadvantageous to that third party. A foreseen modification or one resulting from application of existing terms and conditions can be invoked against a third party without permission, even if the modification is disadvantageous. After all, in such a case the third party has been warned and could be aware of the consequences.

A consensual modification of the ranking order of limited rights can occur at different moments: when the limited rights are created, after the limited rights have been created, and before the limited rights are created. The law, as reflected in Art. 3:262 BW, explicitly regulates only a change in ranking order of mortgage rights or of a mortgage right with another limited right. An analysis of Art. 3:262 BW shows that the system concerning change in rank has not been thought through properly. The need for a change in ranking order may arise for all limited rights. Through a systematic analysis, I have shown all limited rights can be changed in terms of ranking order under current law. I argue that a change in the ranking order of limited rights can readily be integrated into the regime governing modification of the content of limited rights, even though the ranking of such a right cannot, in principle, be characterized as content of a limited right. However, by modifying the content of a limited right, a result can be reached that is comparable to a modification of the ranking order. In light of this, I believe that equal treatment is justified. To link the system of change in rank with the system of change in content, it is necessary to regard the permission that is needed for the change in rank to take effect as a partial waiver of the rank. In that way a change in rank can take place, since the holder of a limited right waives his rank with respect to one or more limited right holders who are ranked lower.

Under current law there is no clear answer to the question whether holders of limited rights can modify the ranking order of their limited rights, without cooperation of the owner. There are arguments both for and against this point of view. Looking at the parliamentary history, it does not appear that Art. 3:262 BW makes such a modification of ranking order possible. For the owner, a change in the ranking order of, for example, pledge or mortgage rights can also turn out to be disadvantageous. On the other hand, a change in the ranking order of security interests can be achieved without cooperation on the part of the owner via cross assignment of the securitised claims, and subordination of a claim can take place without involvement on the part of the debtor. My conclusion is that it is uncertain if a modification of the ranking order of limited rights among the holders of limited rights without cooperation of the owner is possible under current law. Any negative consequences could be tackled via the doctrine of (liability for) wrongful acts or abuse of power, but a modification of the ranking order without cooperation of the owner does not fit well in the system of (analogous application of) Art. 3:262 BW and also not well in the system of content modification through Art. 3:98, in conjunction with Art. 3:84 BW.

A ranking modification can also be accomplished in advance. A change of rank in advance entails that when a limited right is established (or modified afterwards), a certain rank is assigned to this right that differs from the priority rules, so that a change in rank automatically occurs at the time of, and through the establishment of, another limited right. However, if a second limited right is established, it is then necessary to specify that the change of rank in advance is utilized. The change of rank in advance must be distinguished from a change of rank of limited rights that were established in advance, pertaining to future goods. Future goods can be encumbered in advance several times (Art. 3:98, in conjunction with Art. 3:97 BW). If a limited right is established in advance, a different rank can be assigned to this right in advance at the time of the establishment of a second limited right. If two limited rights are established in advance simultaneously, then a rank that differs from the priority rule can be assigned to these limited rights when they are established (in advance). A ranking change can also take place after the establishment in advance of several limited rights. Lastly, if a limited right is established in advance, then at the time of such establishment the right can be reserved to establish a limited right in advance at a later time that is higher in rank than the limited right in advance that was established first.

The relocation of an easement described in Art. 5:73, subsection 2 BW, is qualified in the literature as a unilateral legal act. It is deduced from the summary explanatory note to this provision that the relocation has no prescribed form and that the protection provided by Art. 3:24 BW does not apply if the relocation is not entered in the public registers. This outcome conflicts with the wording of Art. 3:24 BW and cannot be true. After a systematic analysis, my conclusion is that, based on Art. 5:73, subsection 2 BW, the relocation of an easement constitutes a multilateral legal act. That is consistent with the system of modification of the content of limited rights. Registration of a notarial instrument of modification is a constitutive requirement pursuant to Art. 3:98, in conjunction with 3:84 BW. In accordance with Art. 5:73, subsection 2 BW, the owner of the dominant property is required to cooperate with the drafting of the notarial instrument of modification and the entry in the public registers if the requirements for a relocation have been met.

My analysis has also shown that a relocation of the exercise of an easement that takes place within the boundaries of the easement is not covered by Art. 5:73, subsection 2 BW. Such a ‘factual’ relocation cannot be entered in the public registers because it does not involve a legal act that effects a change in the legal status of a property subject to registration within the meaning of Art. 3:17, subsection 1a BW. Such entry is also unnecessary because the deed of establishment provides sufficient insight into the content of the easement and the way it is exercised. In the literature it is, in fact, readily assumed that, in case of a generally formulated easement, a relocation can take place within the boundaries of the easement. I have nuanced this contention since it must be determined on the basis of Art. 5:73, subsection 1 BW, whether the easement actually allows such leeway. If the deed of establishment does not contain rules governing the exact exercise – which can be expected in case of an easement formulated in general terms – then the place of exercise is determined by local custom or by the method of exercise. In such case, a relocation of the easement can only take place on the basis of Art. 5:73, subsection 2 BW.

A unilateral modification of the content or ranking order of limited rights is possible by way of a partial termination. Although it is not apparent from the wording of the Civil Code or from legislative history that a power of termination can be exercised partly, this possibility is systemically consistent with the law. Entry in the public registers of partial termination is not a constitutive requirement, but in case of non-entry the protection of Art. 3:24 BW applies. In this way, for example, the maximum amount associated with a mortgage right can be lessened or a bank mortgage can be converted into a fixed-rate mortgage. Having regard to Art. 3:81, subsection 2d BW, it is, however, necessary that the mortgage deed reflect a termination power for the mortgage holder. In this way the unilateral modification has a multilateral component. In many cases the power of termination will not be described in such a way that this power can also be exercised partially. Specific interpretation will be required to determine whether a power to terminate can be exercised partially.

A unilateral modification of the content or ranking order of a limited right is not possible through permission. Permission is regularly mentioned in the Civil Code, but it is not covered in a general way. Legislative history does provide indications supporting the position that permission has third-party effect, but such effect is inconsistent with the system of property law. For example, if a lessor under a long lease grants permission to the leaseholder to use the property for a different purpose within the meaning of Art. 5:89, subsection 2 BW, this does not thereby change the content of the leasehold. A legal successor of the leaseholder cannot claim any rights from the permission granted. Obviously it is possible that the permission is part of a multilateral legal act, for example in the sense that the permission is granted in exchange for a ground rent increase. If this multilateral juristic act is set out in a notarial (modification) deed and is entered in the public registers, then this constitutes a modification of the leasehold via Art. 3:98, in conjunction with Art. 3:84 BW.

Chapter 4 addresses a modification by operation of law. I show how the content of a limited right can change due to lapse of the limitation period, as per Art. 3:99, Art. 3:105 and Art. 3:106 BW. Application of the relevant provisions is not easy. The articles are not tailored to limited rights, let alone to a modification of limited rights. After analysis it turns out that a modification is a particular application of either the acquisition of a limited right via Art. 3:99 or Art. 3:105 BW, or the extinction of a limited right via Art. 3:99, Art. 3:105 or Art. 3:106 BW. If acquisition is involved, it leads to an expansion of the content of a limited right. What is required is possession of a modified limited right. If extinction is involved, it leads to curtailment of the content of a limited right. In that case possession of a modified primary right is required.

It is not clear when exactly an expansion of a limited right via Art. 3:105 BW occurs. The requirement is that possession is taken of a modified limited right. Two interpretations can be distinguished here: either pretence of ownership (evidenced to the outside world) is required, or factual exercise that corresponds with the modified right. The legal uncertainty in connection to acquisition or extinction of limited rights also applies regarding a modification of the content of limited rights. In the first case, possession is not quickly achieved, for how does someone behave who, for example, pretends to have the right to a modified easement of right of way? The fact that the path in question can also be entered by car – in violation of the established easement – does not by itself prove that the owner of the dominant property pretends to carry out those actions on the basis of a modified easement. In the second case, possession can be assumed more easily, because the fact that the path is entered by car on a regular basis – in violation of the established easement – is sufficient to claim possession of a modified easement.

The curtailment of a limited right is not as complex since, based on Art. 3:106 BW, appropriation of a modified primary right must entail a situation that conflicts with the limited right. If the owner of the servient property makes the exercise of an easement of a road partly impossible, then this leads to appropriation of a modified primary right. For example, the road is blocked to such extent that the owner of the dominant property can only enter it on foot and not by car. As soon as the legal claim of the owner of the dominant property to undo the unlawful situation expires, the limited right is partially extinguished. The content thus changes. Application of Art. 3:106 BW requires a partially conflicting situation. Incidental violations are not sufficient to speak of an unlawful situation. The violation must be continuous.

It is clear that possession can be assumed more easily in case of a failed establishment and thus of a failed modification of a limited right. Possession is then not obtained by way of taking possession but by a grant of possession. If possession is obtained along with a right, it is not necessary that possessory acts be carried out. However, in case of a failed establishment or change, the right is not obtained, and as such it is not clear whether possessory acts are required aside from the grant of possession. Support for the view that possessory acts are nonetheless required can be found in legislative history, literature and legal precedents, but a drawback is that the protection may extend beyond what is necessary. This means that the party that has rendered assistance to the failed modification can appeal to the fact that no possessory acts have been conducted, so that no modified right is obtained due to lapse of the limitation period. Such appeal could, however, be unacceptable according to the standards of reasonableness and fairness or could lead to abuse of power. A drawback of the view that possessory acts are not required is that a legal successor might not be aware of the possession, whereas the requirement of possession should also serve to protect the successor’s interests. In this case, however, it could be assumed that invoking the period of limitation is unacceptable according to the standards of reasonableness and fairness or results in abuse of power.

The rank of a right of pledge can change via protection of third parties. Pursuant to Art. 3:238, subsection 2 BW, a right of pledge can shift upwards in terms of ranking if the right conflicts with another right of pledge or a usufructuary right. An exception to the ranking order via the priority principle applies if a right of pledge is established on movable property, on bearer rights or rights to order, or to the usufruct of a good that is already subject to a limited right, while the later pledge holder is (and should be) unaware of such limited right at the time the good comes into his possession or into that of a third party. In the literature there is discussion about the answer to the question whether the protection provided under Art. 3:238, subsection 2 BW, takes place by operation of law or whether it must be specifically appealed to. For practical reasons, I have decided to address the legal basis in the chapter of modification by operation of law.

I analyse eight different situations that can occur in the context of Art. 3:238, subsection 2 BW. Some situations will be more likely to occur in practice than others. I also address the case in which several limited rights are attached to property subject to Art. 3:238 BW. I conclude that, in fleshing out the requirements, it is important to distinguish each case carefully. The pledgor’s obligation to confirm that he is authorised to pledge the property, as well as that no limited rights are attached to the property, appears to play an important role in answering the question whether good faith within the meaning of art. 3:238, subsection 2 BW is present. However, the relevance of this confirmation should not be overestimated. If such confirmation is required by law but has not been given and it turns out that there is a previous pledgee, then the second pledgee in principle does not act in good faith. It is conceivable, however, that the second pledgee can show on other grounds that he was unaware of the existence of the previous right and could not have been aware of it. If it subsequently turns out that the confirmation that no limited rights are attached to the property subject to pledge is incorrect, that also does not mean that the second pledgee acted in good faith. It is conceivable that he knew or should have known of the previous right nonetheless. The assessment whether the various actions have been conducted in good faith depends, in short, on the circumstances surrounding the case, and the confirmation by the pledgor can play a role in this.

Application of Art. 3:238, subsection 2 BW, becomes all the more complicated if movable property has been pledged twice in succession but is held by a third party (as a first-ranking possessory pledge holder or otherwise). A shift in rank requires that the second pledge holder is (or should be) unaware of the first right at the time the property comes under his control or under that of a third party (Art. 3:238, subsection 2, in conjunction with subsection 1 BW). Establishment of a possessory pledge or conversion of a non-possessory pledge into a possessory pledge can take place the moment the property is held by the second-ranking pledge holder. Analogous to Art. 3:115, opening words and sub c BW, notification to a third party suffices for this purpose, but this can lead to unreasonable situations, especially when the third party is a first-ranking possessory pledge holder. Two solutions are conceivable: notification is not sufficient, acknowledgement is required (see Art. 3:115, opening words and sub c BW), or good faith is not present if the basis on which the third party holds the property has not been inquired into. Art. 3:238, subsection 2 BW, does not apply if a right of pledge is established first and a right of usufruct is established afterwards. According to Art. 3:98 in conjunction with Art. 3:86, subsection 2 BW, the right of pledge can expire in such case if the requirements are met. However, the idea behind the introduction of Art. 3:238, subsection 2 BW – for protection it is not necessary that the limited right becomes inoperative – also applies here. The usufructuary right is sufficiently protected if the right of pledge becomes second in rank. Analogous application of Art. 3:238, subsection 2 BW, is therefore not ruled out.

By way of Art. 5:98 and Art. 5:104, subsection 2, in conjunction with Art. 5:98 BW, a leasehold or an independent right of superficies remains in effect by operation of law if the time for which the right is established has expired and the leaseholder or superficiary has not cleared the property at such time. The continuation of a leasehold or right of superficies constitutes a change of the duration of the limited right and thereby a modification of its content. The extension of the term comes about by operation of law, so it does not require entry of a notarial deed in the public registers. A third party has no right to protection under Art. 3:24 BW in case of non-entry of the extension. That is not explicitly set out in the law but is evident only from parliamentary history. Considering the rationale of this provision, namely protection of the leaseholder or superficiary, the chosen system is justified. An extension of the term can be prevented by ‘evidencing’ the end of the limited right. Such ‘evidencing’ must be qualified as a legal act, more in particular as a notice of termination without a notice period being required.

In chapter 5 I provide answers to the research questions and – with due regard to the overall scope of this thesis – state the most important findings. The content or ranking order of limited rights can be modified on many legal grounds. I have organised my subject into three categories: modification by the court, modification by the parties, and modification by operation of law. Within each category I have discussed various legal grounds. Modification of the content or ranking order of limited rights has until now not been examined in this way in the literature. My research provides insights into the existence, requirements and judicial consequences of all sorts of legal grounds, such as a change owing to unforeseen circumstances, owing to conflict with the public interest, on the basis of considerations of reasonableness and fairness, owing to abuse of power, due to nullification of general terms and conditions, on the basis of a multilateral legal act, via a unilateral legal act, via prescription, on the basis of the protection of third parties, and due to continuation of a limited right.

The existence of different legal grounds does not imply that there are no interconnections. The fact that there are different legal grounds means, for example, that various rules on modification can apply to a specific body of facts at the same time. If the requirements and legal consequences do not differ, then the specific rule that is invoked is irrelevant. However, in many cases the requirements and legal consequences do differ. The starting point of concurrence is simply applied. This means that the litigant’s freedom of choice is paramount. Only in exceptional cases does exclusivity apply. For example, the fact that the public interest is the underlying reason for a request for modification does not imply that no request for modification is possible because of unforeseen circumstances. And the fact that a modification by parties constitutes in principle and within the system of law a multilateral legal act does not prevent a modification taking place via a unilateral partial termination. The property-law regulation concerning unforeseen circumstances does, however, operate exclusively with regard to the obligations-law regulation concerning unforeseen circumstances, since the provisions pertaining to property law include limitations that are not found in the provisions pertaining to the law of obligations.

My analysis of the relocation of an easement and of the consensual modification of content by parties shows that, if a basis for a modification can be found in the content, then other requirements and legal consequences apply. If the relocation of an easement takes place within the scope of the deed of establishment, then no modification within the meaning of Art. 5:73, subsection 2 BW occurs. This means that a relocation may take place involving a lessening of enjoyment and that the owner of the dominant property must involve the owner of the servient property if he disagrees with the relocation. If a content modification is sufficiently set out in the deed of establishment, then no modification within the meaning of Art. 3:98, in conjunction with 3:84 BW occurs. This means that the modification takes place without entry of a notarial deed of modification in the public registers being required.

The fact that a modification takes place via the court, by parties or by operation of law does not affect the consequences of the modification of the limited right. A modification leads in principle to a continuation of the limited right in altered form and not to the establishment of a new right, whether full or partial. Third parties with a limited right are sufficiently protected under the system of law. If a modification takes place via a judicial power to modify as per Book 5 BW, then the third party must be impleaded and an assessment against the requirements must take place with regard to the third party. If a modification takes place via a judicial power to modify as per Book 6 BW, then this requirement does not apply, but in such case an adverse modification also has no effect with respect to the third party. A modification by parties does not have effect with respect to a third party if the modification is adverse and the third party has not given permission. The same applies for a change of rank. A third party with a limited right to a right that changes in rank is not bound to the change in rank if such third party has not given permission thereto. If a partial cancellation of a mortgage right is not entered in the public registers, then the protection under Art. 3:24 BW applies. This protection does not apply in all cases, for example not in the case of Art. 5:98 BW, but that is justified considering the rationale of this legal ground.

My analysis of all legal grounds and how they interact has brought significant inconsistencies, gaps and defects to light. The waiting periods for a number of judicial modification powers pertaining to property law need to be eliminated. These periods are rather arbitrary, and the regulations would be better balanced if the waiting periods were eliminated. Likewise, the relevant provisions in the transitional law should be eliminated. The argument that parties could no longer take the modification rules into account when a limited right is established is not (no longer) convincing. My research has shown that the relocation of an easement is not a unilateral legal act – as assumed in the literature until now – but a multilateral legal act. In the literature it is assumed that the protection of Art. 3:24 BW does not apply in case of non-entry of the relocation in the public registers. That system is wrong because it conflicts with the text of Art. 3:24 BW. It corresponds to the system of consensual content change that, for the relocation a notarial modification deed must be entered in the public registers. Based on Art. 5:73, subsection 2 BW, the owner of the dominant property has a duty to cooperate if all requirements contained in the article have been met. The system of change in rank has not been thought through properly. All limited rights may need a change in rank. I have shown, systematically, that and how, under current law, all limited rights can be amended. The system of change of rank via Art. 3:238, subsection 2 BW, contains gaps. The article does not apply to the situation that a right of pledge must be established first and only then a right of usufruct. However, according to Art. 3:86, subsection 2 BW, the right of pledge can be nullified if the requirements have been met. But the usufructuary is sufficiently protected if the right of pledge comes second in rank. Analogous application of Art. 3:238, subsection 2 BW, is therefore not ruled out.

I conclude that the concept of modification does not have a distinctive character. In that sense, this concept is quite comparable to the concepts of establishment and extinction since these also have little distinctive character. A limited right can come about through establishment but also for example through lapse of time. A limited right can be lost through waiver but also through termination. The same applies to modification. A modification of the content or ranking order of limited rights can take place through a supplementary establishment but also, for example, through protection of third parties. The concept of modification is a collective term for changes in a limited right, but the concept does not clarify in what way the limited right changes. It is necessary to determine the nature of a concrete modification in order to assess the legal ground that applies, the requirements that apply, and what the legal consequences are. My description and analysis of the law as it stands have made clear what legal grounds exist for modification of the content or ranking order of a limited right, and what the requirements and legal consequences are for applying these legal grounds. In addition, my description and analysis of current law have brought to light inconsistencies, gaps and defects in the current law and shows how these inconsistences, gaps and defects can be corrected.