Functional Equivalents to Ownership

Above we saw the principle that, in relation to any item of property, there could only be one right of ownership in any given item of property. Although this principle was always observed in theory, in practice there were certain rights that were so extensive that they put the holder in a position indistinguishable from that of an owner, or very nearly so.

(1) Superficies

We have seen that the owner of an area of land also owned any buildings on the land. As a general principle, it was not possible to have a real right in a building or any part of it separately from the land itself.^[1017] To this general principle, superficies was an exception. This right, which had its origin in building leases, was a real right in the building itself rather than the land on which it sat. The owner of the land retained in theory ownership of the building itself, but in functional terms the grantee of the superficies was in a position very similar to that of an owner as long as the rent was paid and as long as the term (which could be perpetual) lasted.

(2) Emphyteusis

Emphyteusis was originally a long-term or perpetual lease of public land for an annual rent, later being used for private land as well.^[1018] Unlike in a normal lease of land,^[1019] the right of emphyteusis could be inherited or alienated. Also unlike in a normal lease of land, the holder of the emphyteusis was a possessor and, in its developed form, emphyteusis was a real right.

(3) Bonitary Ownership

A final example of functional equivalence to ownership is the case of bonitary ownership. The status of bonitary owner was created by praetorian intervention, and gave protection to those who had acquired an item of property in a way other than that required by the law. As this topic is very strongly related to the require­ments for transfer of ownership, it is considered more fully in Chapter 11.^[1020]