Enforcing the Right to Property Properly: An Essay on the Shift from Injunctive Relief to Mere Compensation

Of all patrimonial rights, the right to property is considered by far the most powerful. The owner is entitled to the exclusive use of the object, the word ‘use’ is understood in a very wide meaning and the owner has a strong position as far as enforcement of his right is concerned. He can reclaim the object from anyone (revindicatio), he is usually entitled to both positive injunctions (removal of objects from his premises) and prohibitory injunctions (in case of trespass). And finally, when the owner has to put up with infringements, he is entitled to damages. There seems, however, to be quite a gap between the position of the owner who is entitled to an injunction and that of the owner who has to bear infringements and is only entitled to damages. In the first situation (injunction), the owner can vindicate his right according to a property rule which allows him to set the price for infringements. In the second case (damages), the owner is left to compensatory standards. In this paper, the consequences of the substantial shift in protection from an injunction to (different levels of) compensation will be illustrated with examples from the modern civil code of The Netherlands. Dutch law offers examples of different regimes of protection of the owner: a rather strong position (injunctive power) in the area of neighbour law, a relatively strong position in case of expropriation (a generous level of compensation), a typical liability rule (compensation according to objective standards) when a pressing societal interest prohibits injunctive relief, and a weak level of protection in case of a limited restraint of the owners capacity in case of a public development plan (only ‘fair’ compensation). These examples, which show a sliding scale of levels of protection, raise the question whether the right to property is vindicated properly when injunctive power is left for some form of compensation in money. They also raise the question according to which standards of compensation the right to property can and should be adequately protected.

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