What is the difference between right in rem and personal right? The difference between right in rem and personal right differs that a person grants a claim to a performance. On the contrary, a right in rem is a thing or another good. Find out all about right in rem & personal right on this page.
A right in rem refers to a right that rests on a thing or another good. In Dutch law, a thing is defined in Book 3 of the Dutch Civil Code as a material object susceptible to human control.
A right in rem stands in contrast to a personal right, which grants a person a claim to a performance. Example of a right in rem is a right in rem easement that gives a person the right to go through someone's property ( an adjacent yard) to his property, also called right of way. An example of a personal right is the right to have lent money repaid.
To establish a right in rem it is necessary to draw up a notarial deed and register it in the public registers. In this case, the landowner splits off from his role as owner a number of powers that are delivered by deed. Thus, the cooperation of the landowner is indispensable.
A special feature of a right in rem is that it remains vested in the property regardless of to whom this property belongs, this is called property consequence or "droite de suite". This distinguishes it from a personal right, which only applies between certain persons.
In practice, this means that when someone sells a piece of land encumbered by, for example, a right in rem of easement, such as the right of way, this right continues to exist. Thus, the new owner will have to honor the right. The right "sticks" to the land, so to speak, and is independent of the person of the landowner. Thus, the owner of the right of easement can invoke it against any new landowner.
If an agreement has been made with the owner of the land but it has not been recorded by notarial deed as a right in rem of easement, then there is a personal right of way. In that case, the new owner does not have to honor this agreement. After all, the agreement only applied between me and the old owner.