Real Obligations at the Edge of Contract and Property

Présentation

Obligations are normally imposed on a person and cannot transfer to another person without his consent. Real obligations, however, are so closely connected to a certain property or to a property right that they transfer automatically with that certain property or property right. Examples of real obligations are the maintenance of property subject to a servitude, several obligations of apartment owners and the periodic payment obligation of a long lease holder.

Although a real obligation transfers automatically with the property or property right, there is few attention in current law for the limits to the liability of the transferor and transferee of the property (right). If the holder of the property right (unilaterally) abandons his property right, the question whether he is still liable and to what extent, also arises.

Real obligation can be statutorily imposed, but parties creating a property right can also create real obligations themselves. This is, however, only possible if (i) the obligation has a sufficient connection with the property right and (ii) the obligation does not go against the essence of the property right. In other legal systems moreover, real obligations can be created in favour of another person, rather than in favour of the holder of another property right. Belgian law should allow this as well.