Hoofdstuk 6 Secession of components – Summary

Unlike Roman law, ‘dormant’ rights in rem do not exist in German law. This means that if an object is subject to accession, the rights to that object become extinguished. Therefore, secession does not lead to a revival of rights in rem. However as in Roman law, in German law a concept of continuity after separation exists. The Bürgerliches Gesetzbuch (BGB) contains in §953 BGB the main rule of separation. This section incorporates the 'Prinzip des Kontinuitätserwerbes', which means that the owner of an object is also the owner of the separated parts, unless the law provides otherwise. Under German law, the right of ownership of the unitary object is continued on the separated object by way of legal division. Like the object, the right of ownership also splits. The continuity of rights in rem applies not only to the separation of essential or substantial elements, but also to that of insubstantial elements. For example if this element was unencumbered before the connection and belonged to the same owner as the main object.

For limited rights attached to the principal object, the same applies as for the right of ownership: they also are attached to the separated parts, unless the law provides otherwise. This idea of continuity of rights in rem after separation is reflected in the BGB in the articles concerning the mortgage (§§1120-1122 BGB).2 According to those provisions, the mortgage right extends to the detached constituents or fruits, provided that they are in possession of the debtor. The rule of §1120 BGB does not give priority to the unity of property, but to the unity of ownership. The separated components remain components of the mortgaged property despite the separation. The BGB thus relies on a fiction. In this case, the continuity idea of §1120 BGB conflicts with the idea that a mortgage right can only rest on immovable property. The continuity principle prevails.

The Kontinuitätsprinzip can also be found in the BGB in the rules on components of an object and accession. Unlike Dutch law, German law recognises different 'types' of components, such as substantial (essential) and insubstantial components and pseudo components. This distinction is based on the idea of continuity: a right in rem does not easily extinguish. From the nuance between the various constituents of an object it follows that the ‘formation of components’ is a different doctrine than ‘accession’. Because under Dutch law the formation of components almost always leads to accession, both doctrines are often mentioned in one breath, which might blur the distinction. However, this distinction does exist.

The idea of continuity of proprietary rights in the BGB is also visible in the rules of accession. These rules apply to substantial elements and may also apply to insubstantial elements. In principle, insubstantial assets follow the ‘legal destiny’ of the main object. This is only different if, prior to the connection, an insubstantial part belonged to someone other than the owner of the main object or if, prior to the connection, this insubstantial part was encumbered with a limited right. In that case, the rights in rem on the insubstantial part continue to exist: the original owner always was considered to be the owner.

What about the legal certainty of third parties? This is guaranteed by the third-party protection articles in the BGB. If the insubstantial parts do not belong to the transferor, the transferee nevertheless acquires the entire property, provided he is acting in good faith (§932 BGB et seq.). The same applies to pseudo components. The loss of ownership arises if a third party takes possession of the whole object in good faith.

In the event of accession, the BGB in certain cases grants a right of secession (Wegnahmerechte)to the person whose right in rem has been extinguished. With such a ius tollendi, the entitled party claims separation of a constituent element of an object. These Wegnahmerechte are a statutory exception to the main rule and are limited in number, because the unity of an object deserves protection. There must be a valid reason for the disconnection of the unitary object. This is the case if a right in rem (unintentionally) ceases to exist due to accession. For such cases, the Wegnahmerechte have been included in the BGB: they aim to reverse the unjustified ‘expropriation’ by accession and make the original owner again the owner of the object in question. The thread of ownership from before the connection continues.

The iura tollendi result from a contract or from possession. All entitled parties to an ius tollendi have de facto power over the unitary object on that account. In this respect, consider a usufructuary or lessee in addition to a possessor. The BGB provides an exception to this, which can be found in §951(2) of the BGB. According to that provision, a non-owner, such as the supplier under reservation of title, acquires in certain cases a Wegnahmerecht. From its inception, the nature of this right of separation has been subject of debate.

The Wegnahmerechte have the same characteristics as the actio ad exhibendum in Roman law, with which one can also claim separation of a constituent element of an object. Like the action for production, the right of removal is a kind of ‘preparatory action', except that it is not the introduction to the revindication, but to another right in rem: the Aneignungsrecht. This right arises after the separation and only relates to the separated part. The 'right of appropriation' does not infringe the German principle of unicity, according to which essential elements of an object cannot be subjected to separate rights in rem. After all, as a result of the separation, the separated (essential) part has become an independent object.

Here, too, a comparison with Roman law is suggested: through separation, the separated part is transformed into an independent object and the original owner acquires ownership (again) by operation of law through the awakening of the ‘sleeping’ property action. For the acquisition of ownership, German law, unlike Roman law, requires that the person who is entitled to the Aneignungsrecht obtains the possession (Eigenbesitz) of the object. This Aneignungsrecht is necessary, since otherwise the main rule of separation comes into play, according to which the owner of the unitary object also becomes the owner of the part which is separated from it.

German law shows similarities with Roman law, Dutch law in its turn shows similarities with German law. Although a general provision such as §953 BGB is lacking in the Dutch Civil Code (DCC), also under Dutch law the owner of the unitary object acquires in principle the ownership of a severed component. It is not without reason that Meijers refers to §953 BGB in his explanatory notes of the later Article 5:1 (3) DCC. Although the Old Dutch Civil Code (OBW) lacked a general provision as well, the main rule laid down therein was no different.

The owner of a unitary object becomes the owner of the severed part because he owns the unitary object. The ownership of the object and of the separated object are inseparable. Due to this close relationship, the new right of ownership on the separated object has the same characteristics as the right of ownership to the unitary object. This also means that, in principle, the new right of ownership is encumbered with the same rights in rem as the unitary object. Both the right of ownership and the limited rights continue in substantive form. In the Dutch Civil Code, the legal basis for the acquisition of ownership is to be found in Article 5:1 paragraph 3 DCC. Although this article applies to separated fruits, it also contains the general rule of secession.

The general rule does not apply if it is contrary to the law. For this reason, the separated part of a mortgaged property cannot be mortgaged. After all, the separated part is a movable object that is not registered property. It simply cannot be mortgaged. If a creditor wishes to obtain security for example over the fruit in the field at the time of separation, he will have to stipulate a right of pledge in advance with regard to those (future) goods.

In the case of a temporary secession, for example in connection with a reparation, the legal consequences of secession do not come into effect. Roof tiles that have been taken off the roof for a short period of time for repair are still subject to the mortgage right. If the separation is not temporary, but the separated component is still in possession of the mortgagor, in my opinion the component is still encumbered with the right of mortgage. It is difficult to see how the mere separation can cause an original component to 'crawl' out from under the veil of the mortgage right. The separated part should be regarded as an immovable property. It is only when the mortgagor loses control over a separated object and a bona fide third party acquires it that the object is no longer within the reach of the right of mortgage.

As mentioned above, when the Dutch Civil Code was drafted in 1992, a conscious decision was made to limit the scope of the accession rules as little as possible. Under the OBW the consideration was different. Originally, a distinction was made between components, appurtenances and objects which were temporarily connected to another thing (auxiliary object). These different categories of 'components' resemble the different types of 'constituents' in German law. Like the substantial components (wesentliche Bestandteile), the constituent parts lost their independence, and similar to insubstantial components (unwesentliche Bestandteile), the appurtenances could keep their independence. Furthermore, in the case of the OBW, it seemed that the items which were temporarily connected to other items also retained their independence, as with the pseudo components (Scheinbestandteile) in the BGB. Unlike the BGB, the OBW lacked specific articles on these various groups of 'objects'. As a result, the existence of appurtenances and auxiliary objects was the subject of much debate. Under the influence of literature and case law, these categories (in so far as they already existed) have been abolished, thus eliminating the distinction between different components of an object.

Originally, the 'French doctrine' applied under the OBW, which implied that parties had a certain degree of freedom in declaring the rules of accession applicable or not. The rules concerning accession were therefore of a regulatory nature. For example, a leaseholder could indicate that the barn he built belonged to him and not to the landowner, arguing that the barn served his leasehold right and not the land. The same view runs parallel to German law, in that the barn is seen as a pseudo component/Scheinbestandteil (§95 BGB). Under the influence of new jurisprudence and literature, the freedom of parties disappeared. What mattered was whether an object became part of another object according to the common opinion. The protection of the interests of a third party in good faith became more and more central. This development resulted in the rules of accession which currently apply in the Dutch Civil Code.

As in the BGB, the main rule of secession in the Dutch Civil Code does not apply if there are legal exceptions. A usufructuary acquires ownership of the fruits and not the landowner. This acquisition of ownership results from what Suijling called the 'right of appropriation'. Suijling borrowed the term from the Aneignungsrecht in the BGB. However, it (the term) is confusing, because it brings to mind the 'appropriation’ of an object by taking possession (occupatio). That is why in this study the term has been replaced by the 'right of acquisition'. This 'right of acquisition' is discounted in the right of usufruct, whereby the usufructuary acquires ownership of the fruits and not the landowner. The person entitled to the ‘right of acquisition’ acquires the right of ownership of the separated object at the time of secession. It is not necessary for him to take possession of this object himself, as required under German law. If a third party, on his own initiative, removes the fruit, for example, the usufructuary still acquires ownership - and not the third party.

The ‘right of acquisition’ allows for an exception. After all, the main rule is that the owner acquires ownership of the separated parts by virtue of his right of ownership to the main object. The usufructuary, on the other hand, acquires ownership of the fruits by virtue of his ‘right of acquisition’. The same applies to the leaseholder, the possessor, and so on. The right of ownership acquired by the usufructuary is thus not derived from the owner's proprietary right, but follows from the usufruct, which incorporates the 'right of acquisition'. Because the ownership is acquired via the 'right of acquisition’, the separated fruits are not subject to the same limited rights as the main property. A usufructuary 'acquires' unencumbered ownership of a calf, even if the cow is subject to a pledge. The 'right of acquisition' essentially acts as a 'washing machine': it 'washes' the separated component off, so that the rights in rem of the main object do not come into play.

The 'right of acquisition' is incorporated in the iura tollendi. As in the BGB with the Wegnahmerechte, these secession rights are limited in number. The current Dutch Civil Code grants a right of removal to the owner of an easement (Article 5:75 paragraph 3 DCC), the leaseholder (Article 5:89 paragraph 3 DCC), a superficiary (Article 5:105 paragraph 2 DCC), a possessor or holder (Article 3:123 in conjunction with Article 3:124 DCC), the usufructuary (Article 3:208 paragraph 2 DCC), the mortgagor (Article 3:266 DCC) and the lessee (Article 7:216 paragraph 1 DCC). By virtue of his right of removal, the person entitled to remove can separate a constituent element of an object. The iura tollendi were created for the benefit of the person who unintentionally lost his right in rem by accession. Conversely, the secession rights are intended to protect the owner of the principal object from an 'imposed' enrichment, in that unsolicited improvements added to his object may be removed.

Hence, the owner of the main object does not become the owner of the separated object after it has been separated on the basis of an ius tollendi. The effect of an ius tollendi reveals that the proprietary relations which existed before accession are relevant. The original owner 'acquires' the property because he was the owner before the connection. This means that the scope of the right of secession is determined by the proprietary relations prior to the connection. The new right of ownership arises from the 'right of acquisition', but is not necessarily unencumbered. The property right 'to be acquired' is determined by all property law relationships prior to the connection. After all, what applies to the right of ownership also applies to the limited rights. If the separated object was pledged prior to the accession, then after the separation a - new - pledge will rest on it by operation of law. Thus, the ius tollendi fulfils its purpose: reversing the undesirable loss of rights in rem by accession.

Secession has become topical in the 'circular economy'. Here, 'use' is gaining importance at the expense of 'ownership'. This shift in commerce also affects property law. The question is whether property law in its present form supports or impedes the transformation to a circular economy. In particular, the doctrine of accession and secession have come under scrutiny, especially in the context of circular construction. In such cases, the demand for leasing parts of buildings is increasing, especially now that these parts can be attached and separated from a building in a technically simple manner. The problem in relation to leasing out these (modularly produced) items is that accession frequently occurs following their assembly, so that the right of ownership is lost to the supplier/producer (lessor).

Various solutions have been put forward in the literature to safeguard the property right position of the supplier/producer after his item has been connected to another item. Most solutions suffer from the disadvantage of requiring an amendment to the law or being expensive. Sometimes the solution is open to discussion, for example in the case of the law governing superficies. The question is whether such a right can apply to components of an immovable property. The most convincing solution in the literature is the leasehold construction, in which for the benefit of the supplier/producer (lessor) a right of ground lease is established on the lessee's property. On the basis of his ground lease, the producer will acquire an ius tollendi, with which he may separate the leased object. After the separation, he regains ownership through the 'right of acquisition'.

A disadvantage of the ground lease construction however is that this is expensive because one has to pay transfer tax and engage a notary. Establishing a ground lease can only be done with the assistance of a notary, which entails additional costs. On top of that there are the tax costs for the establishment, which are not negligible either. The ground lease construction is therefore only worthwhile if the costs of establishing the ground lease outweigh the security the producer receives in return.

Does the Dutch law offer any other solution? I think it does. It can be found in the ius tollendi of the supplier/producer. In such case the supplier/producer and the buyer conclude two rental agreements. The first is the customary rental agreement that relates to the (modularly produced) object, for example a lift, solar panel, outbuilding, lamps or façade (see chapter IV). In that agreement, the so-called 'use-agreement', the supplier/producer is the lessor and the buyer the lessee. The other (second) lease agreement is about the place where the rented object (lift, solar panel, outbuilding, lamps or façade) is placed (the 'lease agreement'). This place is rented by the supplier/producer. The supplier/producer is therefore the lessee in the latter agreement and the consumer is the lessor. Thus, the producer can install his façade on the place that he is renting. Should he want the façade back, for example because the consumer cancels the 'use- agreement', he has a right of secession on the basis of the 'rental agreement'. After all, a lessee has a ius tollendi pursuant to Article 7:216 paragraph 1 DCC. This right of secession incorporates, as in the case of all iura tollendi, the 'right of acquisition', with the result that the producer again acquires ownership of the separated object.

An advantage of this construction is that the legal system does not have be turned 'upside down'. Neither would any legislative amendments be necessary. The rules governing accession would continue to apply in full, but they would no longer constitute an obstacle. Because the producer has a ius tollendi, the question as to whether accession has occurred is no longer relevant. The construction involves little cost. For example, it would no longer be necessary to engage a notary. Moreover, the construction can be used for both movable and immovable property and not only for the latter, as is the case of the ground lease construction.

Dutch law does not have a general right of secession that would make a ground lease or dual lease construction superfluous or that would be an alternative to it. The final paragraph of chapter 4 of this dissertation examines what a possible general right of secession could look like. This right should take into account the principles of property law, such as legal certainty and the 'value motive'. Furthermore, the 'right of acquisition' must be incorporated into the general right of secession in view of the fact that only through that right a person other than the owner of the main object can become the owner of the seceded object.

Should a general right of secession be established, this would yield an outcome which is what it ultimately boiled down to in Roman law: 'res mutatur, non tollitur'.