Houses, bricks and ‘dormant property’
Last summer in Alphen aan den Rijn an accident occurred which caused a lot of damage. The removal of the debris raises an interesting question about ‘dormant property’.
Last summer in Alphen aan den Rijn an accident occurred during the renovation of the so-called ‘Julianabridge’. Two cranes placed on a pontoon in the water were hoisting a renovated part of the bridge into place, but the load proved too heavy for the cranes. They lost their balance and fell on some nearby buildings. Several people were injured and several buildings were smashed to pieces.
By now, contractors have begun to remove the debris of the demolished buildings: bricks, beams and other building materials. The aftermath of this accident raises interesting legal questions with regard to these building materials. In this blog I will discuss only one: who owns the (separated) materials?
Lawyers would say that the owner of the former house also owns the materials which once constituted the house. This would be the position under article 5:20 of the Dutch civil code, but the answer is not always so evident. Consider the following scenario.
A person claims that the bricks from one of the deconstructed houses are his property. Since the bricks used to build the house belonged to him and were never owned by the owner of the land on which the house was built. The landowner admits to having accidentally used bricks belonging to the claimant to build the house. But he replies that although the bricks were not his property, they have become his property once the house was built on his land.
The landowner refers to the rule that ownership of the house will cede to ownership of the land. In Dutch law this is regulated in article 5:20 of the Dutch Civil Code, a codification of the Roman law rule ‘superficies solo cedit’. It means that the owner of the land also owns anything built on his land.
The rationale of this rule in Dutch law is that the bricks have stopped being distinct moveable objects and therefor have seized to be subject to individual property rights. But then the question remains: what happens when the bricks are in fact separated and turned into moveable bricks again? Can the original owner vindicate the bricks; or can he be required to remove his property from the crash site?
In Roman law the answer was affirmative (see Digests 6,1,23,7). The owner of the bricks could vindicate them once they had become separate. This is sometimes called ‘dormant property’: the property rights of the owner of the bricks ‘awaken’ when the bricks have been separated.
In Dutch law; it seems the answer would be that the (former) owner of the bricks can not vindicate them. It is not exactly clear why it should not be possible in Dutch law for the owner to vindicate the bricks. Once the bricks have become separated it could convincingly be argued that the owner can again vindicate his bricks. Dutch law however does not yet recognize ‘dormant property’ and ‘awakening property’. Perhaps ‘Alphen’ may serve as a wake up-call, as it has in many other areas of law and governance.