L’application des droits réels

14:05 Mar 7, 2020 

See my note to Adrian. Also, this is not a lease and Eliza raised the valid point that we don't actually know who might hold rights in rem. While the Grantor certainly does, there may be other persons also holding rights in rem over the property.

14:00 Mar 7, 2020 

I might be wrong about this, but I actually rather like the ambiguity of "application", which can mean both how those rights apply and their being applied by the holder of the rights. It seems to cover all bases.

I note that SafeTex thinks that if "application" is OK here in English, I wouldn't have asked the question. However, that's wrong because I might have doubted whether it was OK when I asked the question, but have since been persuaded that it is OK.

13:21 Mar 7, 2020 

Part of the problem lies in the ambiguity of l'application as a verb and that I read as intransitive from the reflexive form of s'appliquer (to operate or apply) e.g. applicability http://hum.port.ac.uk/europeanstudieshub/learning/module-3-g... rather than appliquer as a transtitive verb meaning mettre en oeuvre, so enforce or implement. The ambiguity is not resolved, rather compounded, by a literal translation as an 'application of rights in rem'.

The application vs. applicability ambiguity is also lost in other translations: https://necessaryandproportionate.org/july-2013-version-inte...

10:58 Mar 7, 2020 

Hello
I don't get any of this
If the lessor "reserves all his rights" when leasing, it just means that he doesn't cede or transfer them. It seems to be two sides of the same coin to me. No?
On "application of rights", I prefer not to officially give a neutral or disagree but in my English, people grant, bestow, respect, acknowledge, etc rights but we don't say "apply rights" or "the application of rights".
If "apply /application of rights" was okay in English, you would never have asked this question. So I don't think that answer is very good.
Regards
SafeTex

10:21 Mar 7, 2020 

Thanks for that useful clarification.

10:08 Mar 7, 2020 

Thanks for the suggestion. However, that would seriously change the meaning.

00:22 Mar 7, 2020 

Hello

On the original question which was more about "application" as you though you had "droits réels" sorted, I too don't like "application"

How about the rights or whatever you call them "are not ceded/transferred".

SafeTex

15:16 Mar 4, 2020 

Three huge problems:

1. The FR original does not say that. If the drafter of this contract wanted to say that in FR, they would've said "sans préjudice de..."

2. This proposal isn't a correct alternative to "sans préjudice de..." because "X est réservé" does not mean "without prejudice to X."

3. Saying "This is without prejudice to any rights in rem" or Adrian's interesting but incorrect freestyle jazz approach ("without prejudice to the operation of (other) proprietary" blablabla) begs the question of WHOSE rights in rem we're talking about. Does this contract grant the concessionaire any rights in rem? With this EN translation, I don't know. But with the FR original, I do know -- and the answer is NO: it doesn't because those rights are RESERVED, i.e., not granted by this contract, but rather kept by the party who had them in the first place.

If we say they're "reserved" in EN, then we know the contract doesn't grant them to the concessionaire.

20:44 Mar 3, 2020 

Quote from a Swiss text about droits réels:
« Pour qui les regarde vivre, un usufruitier et un locataire habitent de la même manière une maison. Mais l’un a le droit d’en jouir [...] ; l’autre a le droit que le bailleur l’en fasse jouir[...]. L’un a un droit réel ; l’autre a un droit personnel ». Jean Carbonnier

Droit réel = right in rem = a right to the property itself (as distinct from a contract right against a person).

Adrian said that "rights in rem" is a legal term not comprehensible to the average "Jo or Jane Bloggs" -- that's not a useful critique, as the same is true of "droits réels" (ask Jacques Blogues in Lausanne to explain what that means; he won't be able to). It's a legal term of art, to be translated by a legal term of art.

A usufructuary (for instance, someone who inherited, via will, the right to live in their late father's house until death, after which the house goes to another heir) has a right in the actual property: it's theirs to use, period, until their time is up. A lessee/renter just has a contract right against the landlord: the landlord must let them use the property per lease terms, and if he doesn't let them, he must pay them money damages.

17:42 Mar 3, 2020 

1. It makes a slight difference, as any prospective German version would use Anwendung = application or use of rights and militate against a translation as exercise, invoking or enforcement of rights.
2. rights in rem might be intelligible to lawyers, accountants and leviers of execution against a ship as a UK 'admiralty action in rem', but hardly to Jo or Jane Bloggs running a personally (in personam) licensed establishment subject to 'overriding interests in the land or abutting premises' and fans of a music band like R.E.M.

17:34 Mar 3, 2020 

I realise that I have been remiss in not telling you all that the law in question is that of Switzerland, not France. Sorry! I don't know whether it makes a difference.

15:41 Mar 3, 2020 

French Property and Inheritance Law: Principles and Practice, by Henry Dyson, pp. 16-17:

"Rights in rem
Such rights are droits réels and are subdivided into two types, namely, droits principaux and droits accessoires. The former are rights of ownership of various interests... [e.g. easements, leases etc.]. The latter are rights of the recovery of land under the various types of mortgage which exist in French law. The derogation from the general rule that a lease cannot create a droit réel has exceptions.... The types of leases which fall within the exception all contain provisions which are deliberately more attractive to a lessee than are those which normally appear in an ordinary lease at rack rent...."

https://books.google.com/books?id=o8HVEzUZP20C&pg=PA16&lpg=P...

Basic overview:
In Rem
From Latin, "against a thing." Concerning the status of a particular piece of property."
https://www.law.cornell.edu/wex/in_rem

10:34 Mar 3, 2020 

I think it´s safe to understand it as the Grantor reserving its own "droits réels" over the premises it will allocate in its own (the Grantor's) buildings to the concessionaire. I don't believe any third party is involved.

22:18 Mar 2, 2020 

I would see it as meaning that none of any "droits réels" are passed to the "concessionaire" - they are still all kept by the Grantor to themselves. The "concessionaire" can use the allocated space only as long as authorised to do so by the Grantor, and that's about the extent of their rights - no tenancy of any kind is implied.

I can't see why it would be necessary to add any third party to this story.

Is there any indication in the preceding text as to WHOSE "droits réels" OVER WHAT are being "réservé", BY WHO?

20:51 Mar 2, 2020 

I see. So in fact the rights could be those of the grantor or a third party.

18:49 Mar 2, 2020 

I don't think that the preceding text throws any more light on what this means. I can't go into detail because of confidentiality, but the buildings concerned are owned and operated by the Grantor. The concessionaire is being awarded a contract to provide some of the services involved in the Grantor's operation. In order to provide those services, the concessionaire needs office space within those buildings. The agreement I am translating does not specify the details of that space, it just lays down the principles and procedures whereby the concessionaire can request and be allocated (for a fee) the office space it requires.

So, the meaning is that the Grantor is reserving its right to exercise its rights in rem (I know that is not very elegantly expressed). However, I can't find any examples of suitable phrasing.

18:16 Mar 2, 2020 

I don't know what comes before this sentence, but I think the meaning may be something like "the occupancy is without prejudice to any third-party rights over the property" - for example if another party has the right to enter the premises. But I may be wrong.

I try to avoid using phrases that only lawyers will understand, since documents like this should be comprehensible to the parties themselves.

18:09 Mar 2, 2020 

Thanks for the correction! I have now found the following, which confirms your comment: https://e-justice.europa.eu/content_adapting_rights_in_rem-4...

17:07 Mar 2, 2020 

Actually it's not "real rights" - the consensus of several previous discussions has been "rights in rem". I would paraphrase this, and perhaps even replace the Latin with English.