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    Law of property

    Area of expertise

    In all of its more 150-year-long history, Dalan has been a centre of specialist expertise within the law of property, especially where real estate is concerned.

    Real estate has always been the core area for Dalan’s legal team, and we have advised clients and pleaded many landmark cases down throughout the years.

    The law of property is a branch of the law that, roughly speaking, describes rights to property, both real and movable property. The law of property is a comprehensive branch of the law which can also have an impact on different legal issues in other branches of the law.

    We advise commercial clients, public bodies and private persons on questions relating to the law of property.

    Our special expertise includes the following areas:

    Real estate is one of the fundamental pillars of the law of property, and issues that arise here often involve property boundaries. The boundaries of a property are normally divided into three categories: boundaries on land, in watercourses and at sea.

    Land boundaries are determined by land survey. Today this is achieved by identifying the coordinates of boundary points with an extremely high degree of precision. In the past the measurements were not always so precise. It can often be challenging to locate old boundary markers, and even determine what actually denotes the boundary marker. In these situations, land consolidation courts often possess particular expertise in locating boundary markers based on their knowledge of traditional practices, the topography of the terrain, and the natural markers used when determining boundaries.

    A consequence of older land surveys may be that the boundary markers are imprecisely indicated in the original divisional or land tax partition proceedings, such that the actual boundary markers are otherwise positioned. A situation may often be complicated by the presence of physical barriers that disrupt the original boundary lines. Such situations can make prescriptive rules relevant, for example when a fence, wrongly positioned over many years, has resulted in the owner within the wrongly positioned fence exercising his prescriptive right to the area involved. There are Supreme Court cases that deal with such questions, though a very strict requirement of due care is necessary when exercising a prescriptive right.

    Boundaries in watercourses differ from those at sea, in that river beds and banks are entirely subject to private property law. This is also the case for lakes, with the exception of larger lakes that contain a so-called “free central area”. Watercourses often represent considerable assets, for example in the form of waterfall rights, or fishing rights in an attractive salmon river.

    A river frequently marks the boundary between two properties on either side of it, and the main rule here is that the boundary runs along the “deep line”, i.e., the deepest channel in the river. When determining the boundary between two properties on the same side of a watercourse, the main rule is that the land at the bottom of the watercourse belongs to the shoreline that is nearest to it at low water.

    Boundaries at sea will, as far as relations between neighbouring properties is concerned, mainly follow the same principles as for watercourses, with the difference that it is the median water level which is applied when determining which shoreline is nearest the seabed location in question. In bays and creeks in the Norwegian archipelago this can often give rise to some problematical boundary demarcations.

    Boundaries out at sea are often more easily delineated, as the main rule in Norwegian law is that ownership at sea is determined by the steep underwater shelf. Sea limits are especially relevant for rights of access by sea, as well as for bathing and leisure opportunities.

    Real estate rights are often consolidated in the form of common ownership, where several persons have the same qualitative right to a property – the right to free disposal of an asset both de facto and de iure. There is therefore a fundamental difference between common property ownership and the various types of housing joint ownership, where the assets are tied to delineated units in addition to the joint ownership of common areas.

    The Common Ownership Act, which governs this type of ownership, contains provisions concerning an individual owner’s legal rights, including how a majority can prevail over a minority in decisions relating to a jointly owned object, how expenses and income shall be apportioned, as well as provisions governing dissolution, division, advance purchase and buy-out.

    Common ownership may encompass everything from joint ownership of a family holiday home that has been inherited by several generations, to huge tracts of mountainous land that are jointly owned by several agricultural properties, exemplified by the traditional usage of such areas established through grazing rights and land taxation partitions. Common ownerships may also exist where movable properties are concerned, for example a vehicle, or where different assets are consolidated under joint ownership. The scope of the Common Ownership Act is considerable; Section 1 of the Act states that the Act applies where “two or more persons own something together”.

    Easements are another very important component of the static property law. An easement gives a limited right of usage to another person’s property (servient property). For example, this may be the right to use a road that runs through another person’s property or a grazing right, or the right to obtain natural resources such as water and timber etc. Such easements are described as positive easements, as they confer a right on the easement holder.

    Another category are negative easements, which put a constraint on another person’s property. A practical and relatively common example (in densely populated areas) is the area easement that places restrictions on how a residential area might be utilised, by for example limiting the type, size or number of buildings that may be erected there. These easements are occasionally referred to as “detached housing zone clauses”.

    Easements play an important practical role in expropriation, as this is a frequently used means for obtaining rights (easements) that one lacks, or for getting rid of negative easements that restrict the usage of the property. Such issues are of considerable practical importance in development projects, as substantial assets can be generated within the property if the necessary rights can be achieved or removed, as the case may be.

    The law relating to the rights of neighbours is a branch of the law which governs the relations between neighbouring properties. This law essentially defines the activities that can take place on a property without these causing nuisance to the neighbouring property. Activities taking place on a property can cause nuisance in a number of different ways, and they can easily trigger disputes between neighbours.

    Conflicts between neighbouring properties typically arise as the result of a development project, where excavation and possible blasting operations, plus the actual building and other construction activity can all be sources of nuisance for the neighbours. In addition, development projects can have a negative impact on neighbouring properties in the form of increased exposure, reduced sunlight and impaired views, plus increased noise etc.

    Section 2 of the Neighbour Act includes the general rule governing the level of tolerance a neighbour must accept. This provision states that a neighbour must tolerate disadvantage and damage that are not considered unreasonable or unnecessary. The wording of this provision is not quite so precise, but its actual implications have been determined by the courts over many years.

    The rights of neighbours may also create conflicts between them where no development project is involved. Rights of way, right of access and parking rights are all potential sources of dispute. Such issues will be governed mainly by the Highways Act, which includes provisions relating to the expropriation of road sections, or the acquisition of a right of use to an existing private road. The Highways Act also includes provisions relating to the apportioning of the maintenance costs of a shared private road.

    Rights of various kinds may be established in different ways. In the law of property, the rules relating to the establishing of prescriptive rights are of great importance as a supplement to the ordinary forms of rights obtainable. The securing of a prescriptive right may be said to constitute the protective preservation of an existing situation. If a person has had the use of an object over a long time (minimum of 20 years), or holds a limited right, he/she may have acquired the right to own the object by means of the rules governing prescriptive rights. A fundamental condition for this is that the person acquiring the right has acted in good faith with respect to his/her right.


    Benedicte Krogh Grimstad
    Partner

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    Håkon Mathiesen
    Partner

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    WE OFFER LEADING EXPERTISE IN THE FOLLOWING AREAS:
    • Common property ownership – including jointly-owned mountain properties
    • Highway rights – both the interpretation of existing rights as well as the expropriation of new rights
    • Negative easements – including detached housing area easements
    • Demarcation of property boundaries – both infield and outfield land
    • Dynamic law of property – guarantor of title conflicts, double succession conflicts and non-statutory extinguishment
    • Shoreline rights and real property boundaries at sea
    • Neighbour law
    • Rules governing prescriptive rights to real property and usage