Roman Property Law: Rights, Limits, and Defense

Posted on Jan 25, 2025 in Law & Jurisprudence

Item No. 3: The Property

Property is the power that belongs to a person, named the owner, to directly obtain from a certain thing all the legal use this thing is likely to provide.

Characters

  1. It was an absolute right, not because it may have limitations, but because the powers of the owner are not prohibited or limited exhaustively and are therefore indeterminate. The advantages of ownership are reduced to three:
    • Jus utendi: the right to use the thing.
    • Jus fruendi: the right to obtain fruits and revenues.
    • Jus abutendi: the right of disposition that includes up to destruction.
  2. It was exclusive. Rights belong to the owner. Ownership of two or more subjects on the same thing was not conceived. In this case, it will be designated a condominium.
  3. It was a perpetual right. It is not extinguished by the failure to exercise it, nor may it be constituted by a specified date. It can be agreed, however, that their broadcast occurs some time after the transferor.

Limitations of Property Rights

1. Public Law Limitations

  • Prohibition to bury bodies in urban estates.
  • Forced passage, temporarily for community benefit, for the duration of a public road’s intransigence to religious sites, to rivers, and waterways.
  • Navigable rivers bordering farms must support the use of their banks for navigation exercises.
  • In the time of Justinian, expropriation for public utility was introduced, but from Theodosius II, it is empowered to demolish buildings with pre-compensation.
  • In the classical period, the height, distance, and aesthetics of buildings are regulated.

2. Private Law Limitations

  • A neighbor may require the cutting of the branches of a tree that extends over a property.
  • Right to reap the fruits of plants typically detached on foreign soil.
  • The easement imposed by a magistrate in a landlocked property.
  • Prohibition of works that alter the flow of water to the detriment of other estates.
  • Different actions granted by law to owners because of neighborhood.

Evolution of Roman Property

  1. Quiritarian Property
  2. Bonitarian Property
  3. Property of Provincial Estates

Quiritarian Property was only known in early times and regulated by civil law (dare), which required Roman citizenship. The object must be a res mancipi, and it must be acquired by mancipatio.

Bonitarian Property: Recognized and sanctioned by praetorian law, it involved the transfer of the res mancipi simply by tradition. It did not require compliance with civil law.

Ownership of Provincial Estates: Land located outside Italy belonged to Rome by right of conquest. It was not private ownership. State ownership was such that the cultivated land was distributed for free.

Defense of Property

In defense of the property, there were three institutions:

  1. Reivindicatio: Used against total violation of the law. This action allows the non-possessing quiritarian owner to exercise against the holder to make restitution or pay the holder’s value. Restitution or payment can only be considered for a private thing that can be identified individually and not for universalities.
  2. Publician Action: Action against the violation of the law. It is a fictional action by which the praetor tells the judge to make a note that the term has elapsed for Usucapion. It may be exercised by the bonitarian owner against any third party or the same owner who had possession of the thing.
  3. Actio Negatoria: With it, the owner claimed the existence of a right outside his property. He can only approve the existence of the real right. The court must declare the party that wins the process and order, in case the applicant has been unable to justify its attempt, to repair the damage caused, restore the products, if any, and give surety to avoid injury to such property in the future.