Civil law relating to land and buildings
Scope
Civil law questions test 物権変動, 相隣関係, 地役権, 共有 and 区分所有 - the substantive rules sitting behind every boundary and every 表示登記.
Core rules
- 民法176条: ownership transfers by mere agreement (意思主義). 177条: registration supplies 対抗要件 against third parties. Never merge the two.
- 取得時効: 162条 (20 years) or 163条 (10 years, 善意無過失). 起算点 and 占有の性質 (善意・悪意, 平穏・公然) decide the outcome.
- 相隣関係: 209条 (隣地の使用請求); 210–213条 (囲繞地通行権, arising by law for landlocked parcels, route fixed by the least burden); 223条・224条 (境界標 and its cost).
- 地役権 (280条以下) needs 要役地 and 承役地 and is 付従的; it is not the same right as 囲繞地通行権.
- 共有: 持分の処分 is free (249条); 共有物の変更 needs unanimous consent (251条); 管理 acts need a majority of shares (252条).
- 区分所有法: 専有部分, 共用部分, 敷地利用権, governed by 規約 and 集会.
Worked example
A parcel has no frontage; its owner has crossed B's land on a path for 12 years. Analysis: the right is 囲繞地通行権 under 210条, arising by law, so the 12 years is irrelevant and 時効 need not be argued. Route and width are fixed by 211条 by reference to the enclosed land's needs, and B may claim compensation for actual damage. Had the parcel fronted a road, the argument would shift to 地役権 or 時効取得, each requiring quite different proof.
Traps
- Equating registration with the transfer of ownership.
- Treating 囲繞地通行権 as requiring a contract.
- Confusing 共有物の変更 (unanimity) with 管理 (majority).