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Mar 2, 2020 16:59
4 yrs ago
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French term

L’application des droits réels

French to English Law/Patents Law (general) UK English
"L’application des droits réels est réservée."

This is about the allocation of office space to a concessionaire on the grantor's premises upon request by the concessionaire. The concessionaire would be paying a charge ("redevance") for the privilege and would require that office space in order to carry out their duties under their service provision contract with the grantor.

I know that "droits réels" are "real rights" the bit that I am unsure about is how to translate "L’application":
The exercise of real rights?
The invoking of real rights?
Proposed translations (English)
3 The application of rights in rem (is reserved)
4 -1 without prejudice to the operation of (other) proprietary interests over the land
3 -3 The enforcement of real (actual) rights

Discussion

B D Finch (asker) Mar 7, 2020:
@SafeTex See my note to Adrian. Also, this is not a lease and Eliza raised the valid point that we don't actually know who might hold rights in rem. While the Grantor certainly does, there may be other persons also holding rights in rem over the property.
B D Finch (asker) Mar 7, 2020:
@Adrian I might be wrong about this, but I actually rather like the ambiguity of "application", which can mean both how those rights apply and their being applied by the holder of the rights. It seems to cover all bases.

I note that SafeTex thinks that if "application" is OK here in English, I wouldn't have asked the question. However, that's wrong because I might have doubted whether it was OK when I asked the question, but have since been persuaded that it is OK.
Adrian MM. Mar 7, 2020:
L'application - transitive or intransitive verb Part of the problem lies in the ambiguity of l'application as a verb and that I read as intransitive from the reflexive form of s'appliquer (to operate or apply) e.g. applicability http://hum.port.ac.uk/europeanstudieshub/learning/module-3-g... rather than appliquer as a transtitive verb meaning mettre en oeuvre, so enforce or implement. The ambiguity is not resolved, rather compounded, by a literal translation as an 'application of rights in rem'.

The application vs. applicability ambiguity is also lost in other translations: https://necessaryandproportionate.org/july-2013-version-inte...
SafeTex Mar 7, 2020:
@ B D Finch Hello
I don't get any of this
If the lessor "reserves all his rights" when leasing, it just means that he doesn't cede or transfer them. It seems to be two sides of the same coin to me. No?
On "application of rights", I prefer not to officially give a neutral or disagree but in my English, people grant, bestow, respect, acknowledge, etc rights but we don't say "apply rights" or "the application of rights".
If "apply /application of rights" was okay in English, you would never have asked this question. So I don't think that answer is very good.
Regards
SafeTex
B D Finch (asker) Mar 7, 2020:
@Eliza Thanks for that useful clarification.
B D Finch (asker) Mar 7, 2020:
@SafeTex Thanks for the suggestion. However, that would seriously change the meaning.
SafeTex Mar 7, 2020:
@ B D Finch and all Hello

On the original question which was more about "application" as you though you had "droits réels" sorted, I too don't like "application"

How about the rights or whatever you call them "are not ceded/transferred".

SafeTex
Eliza Hall Mar 4, 2020:
The problem with "without prejudice"
Three huge problems:

1. The FR original does not say that. If the drafter of this contract wanted to say that in FR, they would've said "sans préjudice de..."

2. This proposal isn't a correct alternative to "sans préjudice de..." because "X est réservé" does not mean "without prejudice to X."

3. Saying "This is without prejudice to any rights in rem" or Adrian's interesting but incorrect freestyle jazz approach ("without prejudice to the operation of (other) proprietary" blablabla) begs the question of WHOSE rights in rem we're talking about. Does this contract grant the concessionaire any rights in rem? With this EN translation, I don't know. But with the FR original, I do know -- and the answer is NO: it doesn't because those rights are RESERVED, i.e., not granted by this contract, but rather kept by the party who had them in the first place.

If we say they're "reserved" in EN, then we know the contract doesn't grant them to the concessionaire.
Eliza Hall Mar 3, 2020:
Swiss droits réels = same thing Quote from a Swiss text about droits réels:
« Pour qui les regarde vivre, un usufruitier et un locataire habitent de la même manière une maison. Mais l’un a le droit d’en jouir [...] ; l’autre a le droit que le bailleur l’en fasse jouir[...]. L’un a un droit réel ; l’autre a un droit personnel ». Jean Carbonnier

Droit réel = right in rem = a right to the property itself (as distinct from a contract right against a person).

Adrian said that "rights in rem" is a legal term not comprehensible to the average "Jo or Jane Bloggs" -- that's not a useful critique, as the same is true of "droits réels" (ask Jacques Blogues in Lausanne to explain what that means; he won't be able to). It's a legal term of art, to be translated by a legal term of art.

A usufructuary (for instance, someone who inherited, via will, the right to live in their late father's house until death, after which the house goes to another heir) has a right in the actual property: it's theirs to use, period, until their time is up. A lessee/renter just has a contract right against the landlord: the landlord must let them use the property per lease terms, and if he doesn't let them, he must pay them money damages.
Adrian MM. Mar 3, 2020:
Swiss vs. French law - in rem vs. personam 1. It makes a slight difference, as any prospective German version would use Anwendung = application or use of rights and militate against a translation as exercise, invoking or enforcement of rights.
2. rights in rem might be intelligible to lawyers, accountants and leviers of execution against a ship as a UK 'admiralty action in rem', but hardly to Jo or Jane Bloggs running a personally (in personam) licensed establishment subject to 'overriding interests in the land or abutting premises' and fans of a music band like R.E.M.
B D Finch (asker) Mar 3, 2020:
Extra information I realise that I have been remiss in not telling you all that the law in question is that of Switzerland, not France. Sorry! I don't know whether it makes a difference.
Eliza Hall Mar 3, 2020:
Phil Goddard is right - "in rem" French Property and Inheritance Law: Principles and Practice, by Henry Dyson, pp. 16-17:

"Rights in rem
Such rights are droits réels and are subdivided into two types, namely, droits principaux and droits accessoires. The former are rights of ownership of various interests... [e.g. easements, leases etc.]. The latter are rights of the recovery of land under the various types of mortgage which exist in French law. The derogation from the general rule that a lease cannot create a droit réel has exceptions.... The types of leases which fall within the exception all contain provisions which are deliberately more attractive to a lessee than are those which normally appear in an ordinary lease at rack rent...."

https://books.google.com/books?id=o8HVEzUZP20C&pg=PA16&lpg=P...

Basic overview:
In Rem
From Latin, "against a thing." Concerning the status of a particular piece of property."
https://www.law.cornell.edu/wex/in_rem
B D Finch (asker) Mar 3, 2020:
@Daryo I think it´s safe to understand it as the Grantor reserving its own "droits réels" over the premises it will allocate in its own (the Grantor's) buildings to the concessionaire. I don't believe any third party is involved.
Daryo Mar 2, 2020:
Without more context I would see it as meaning that none of any "droits réels" are passed to the "concessionaire" - they are still all kept by the Grantor to themselves. The "concessionaire" can use the allocated space only as long as authorised to do so by the Grantor, and that's about the extent of their rights - no tenancy of any kind is implied.

I can't see why it would be necessary to add any third party to this story.

Is there any indication in the preceding text as to WHOSE "droits réels" OVER WHAT are being "réservé", BY WHO?
philgoddard Mar 2, 2020:
I see. So in fact the rights could be those of the grantor or a third party.
B D Finch (asker) Mar 2, 2020:
@philgoddard I don't think that the preceding text throws any more light on what this means. I can't go into detail because of confidentiality, but the buildings concerned are owned and operated by the Grantor. The concessionaire is being awarded a contract to provide some of the services involved in the Grantor's operation. In order to provide those services, the concessionaire needs office space within those buildings. The agreement I am translating does not specify the details of that space, it just lays down the principles and procedures whereby the concessionaire can request and be allocated (for a fee) the office space it requires.

So, the meaning is that the Grantor is reserving its right to exercise its rights in rem (I know that is not very elegantly expressed). However, I can't find any examples of suitable phrasing.
philgoddard Mar 2, 2020:
I don't know what comes before this sentence, but I think the meaning may be something like "the occupancy is without prejudice to any third-party rights over the property" - for example if another party has the right to enter the premises. But I may be wrong.

I try to avoid using phrases that only lawyers will understand, since documents like this should be comprehensible to the parties themselves.
B D Finch (asker) Mar 2, 2020:
@philgoddard Thanks for the correction! I have now found the following, which confirms your comment: https://e-justice.europa.eu/content_adapting_rights_in_rem-4...
philgoddard Mar 2, 2020:
Actually it's not "real rights" - the consensus of several previous discussions has been "rights in rem". I would paraphrase this, and perhaps even replace the Latin with English.

Proposed translations

22 hrs
Selected

The application of rights in rem (is reserved)

Droits réels: rights in rem (loosely speaking, rights in a thing, i.e. property rights, as opposed to rights against a person or contract rights).

Principle of FR law: leases cannot create rights in rem for the lessee (renter), but there are exceptions.

This lease says: the application of rights in rem is reserved. In other words, this lease does not fall under one of the exceptions; it follows the usual principle that leases do not give rights in rem to the lessee -- those right are reserved for the grantor (landlord/owner).
Note from asker:
Thanks Eliza. The document I'm translating is a concession agreement, not a lease and the arrangements for the allocation of premises for use by the concessionaire are likely to resemble a licence more than a lease. My current provisional translation is "This is without prejudice to any rights in rem", which is a bit of an amalgam of your answer and Adrian's.
As you noted above, Jo or Jane Bloggs don't need to understand the document (and probably shouldn't be reading it).
Peer comment(s):
disagree Adrian MM. : 'A literal translation is usually synonymous with a bad one'.// Disagreed with plagiarism// This answer is still ambiguous, so whether l'application is used transitively & the rights are the object or used intransltively & the rights are the subject.
4 hrs
Except when it's not. Your freestyle jazz translation ("without prejudice" etc.) is creative, but wrong.
agree Daryo : can't see why this would be wrong
8 hrs
Merci. Adrian ritualistically disagrees with all my answers. He once even chose "disagree" and then complained, in his comment, that my answer copied his -- not sure how he can think his own is right, mine copies it, and yet he disagreed! :)
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4 KudoZ points awarded for this answer. Comment: "Thanks Eliza"
-3
7 mins

The enforcement of real (actual) rights

Or even “substantial” rights
Peer comment(s):
disagree Daryo : "enforcement" implies that you have to resort to legally approved coercion - that is most often NOT the case - most people fulfill their obligations without anyone having to force them to do so.
4 hrs
disagree AllegroTrans : I cannot make "enforcement" out of "application" in this context
9 hrs
disagree Eliza Hall : Droits réels = rights in rem. Also agree w/AllegroTrans.
22 hrs
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-1
5 hrs
French term (edited): L’application des droits réels est réservée

without prejudice to the operation of (other) proprietary interests over the land

I will leave Phil G. to post his own third-party rights answer, but 'legal gobbledy-gook' may provide useful parallels e.g. of a mortgagee (see the first web ref.), a squatter or deserted wife 'in possession' who may have better unregistered rights ('overriding interests' in ENG land law) to the premises or a leaseholder who claims a lease of between 21 and 40 years (a regd. minor interest)

I also agree with enforcement but not actual rights.

PS there is no need for the usual culprits to lift and reword my answer.

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Note added at 7 hrs (2020-03-03 00:22:42 GMT)
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PS terminology: grantor or licensor (who, contrary to the discussion entries, may be a sub-tenant and not own the droits réels at all) vs. the concessionaire as the grantee or licensee.

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Note added at 17 hrs (2020-03-03 10:45:02 GMT)
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OK. B.D. but I doubt an exercise is needed if these rights are already regd. I prefer "without prejudice to any proprietary interests (applicable to or operating) over the premises" Remember the adage: when in doubt, leave out!

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Note added at 1 day 36 mins (2020-03-03 17:35:21 GMT)
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I think I'll go with "without prejudice to any proprietary interests over the premises" or "without prejudice to any rights in rem over the premises. Though, to take your "when in doubt, leave out" tip even further, perhaps I could omit "over the premises"?

> The 'when in doubt' adage is in fact taken from my Teach Yourself Translation manual edition ca. 1970.

Otherwise, proprietary interests (also droits patrimonials) arguably cover(s the rights 'in rem' - that would draw a blank with many non-US lay readers.

I would prefer adding 'and land rights' (vs. land-based = approx. shore-based) to capture the true flavour of the 'realty' (real estate) in the ENG law of property that I once arduously studied at Uni. and native English grad., publishing-house colleagues in Tunbridge Wells told me 'didn't exist'.

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Note added at 1 day 4 hrs (2020-03-03 21:14:41 GMT)
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'So, I shall preface it with "This is" '- Good thinking. I was going to, but had been mindful of an unflattering imitator who, last October, had the gall to plagiarise the second part of my FRE/ENG answer of 'This is subject..' for 'est réservé' and merely take out the words: 'This is...' thereby attracting mindless agrees.

https://www.proz.com/kudoz/french-to-english/law-general/671...
Example sentence:

Eng land:Most third party rights against a regd. estate are either overriding or minor interests. If such a right is overriding, then it can bind a purchaser without appearing on the register of title. If the interest is minor and is entered onto the reg.

Reference:

http://www.proz.com/kudoz/french-to-english/law-general/642886-titulaires-de-droits-réels-droits-sollicités.html

http://www.lawteacher.net/modules/land-law/registered-land/minor-interests-overriding-interests/

Note from asker:
Thanks Adrian How about "without prejudice to the exercise of any proprietary interests over the premises" or just "without prejudice to the exercise of any proprietary interests"?
Thanks, so, I think I'll go with "without prejudice to any proprietary interests over the premises" or "without prejudice to any rights <i>in rem</i> over the premises. Though, to take your "when in doubt, leave out" tip even further, perhaps I could omit "over the premises"?
Re my suggested omission of "over the premises", the premises allocated to the concessionaire will almost certainly be accessed over other premises that are not allocated to them and these rights <i>in rem</i> might possibly also cover those unassigned premises/land.
These rights might cover both land and buildings and other things. So, I think I preferred not to specify what it relates to. I have also realised that rather than coming as a header at the top of what it refers to, this sentence comes at the end of the penultimate clause. So, I shall preface it with "This is".
Peer comment(s):
agree AllegroTrans : sounds like a licence to occupy (in-shop etc.)
3 hrs
Indeed, though it may be misguided to assume, as per the discussion entries, that the grantor or licensor is the owner (freeholder) and not a subtenant of the premises.
disagree Eliza Hall : Your answer doesn't say who gets those rights, and "droits réels" aren't just "proprietary" rights; they include a usufructuary's right of use.
22 hrs
That's why I suggest the addition of land rights.
disagree Daryo : "droits réels" is a much wider category - without knowing anything about the rest of the ST, why replace it by a term of narrower meaning?
1 day 2 hrs
because 1. proprietary is as wide and 2. rights in rem, being not only an obscure term to most lay people in the English-speaking world, are wider than droits réels - NB the admiralty action in rem against a ship.
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