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Naples is the capital of the Italian region Campania and the third-largest municipality in Italy, after Rome and Milan. As of 2012, around 960,000 people live within the city's administrative limits and almost 4 million people live in the Naples metropolitan area.
Naples’ historic city centre is the largest in Europe, covering 1,700 hectares (4,200...
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Intense exploitation of land implies the development of multi-level, multi-purpose, overlapping and interlocking structures on 3D space, thus resulting in complex, stratified, 3D real property rights between individual owners, as well as restrictions. Legislation regulates the ownership status and use of land by imposing restrictions known as Public Law Restrictions (PLRs). PLRs extend to various fields and various legislative frameworks, such as the protection of archaeological sites, protection and maintenance of underground infrastructures and utilities, environmental protection, flying of unmanned air vehicles, etc. PLRs are usually investigated in the context of property rights and restrictions in the various Land Administration Systems worldwide, and do not often gain specific attention. However, it is noticed that the restrictions that arise from Public Law need to be investigated and classified, so that they can be better utilised in the property status of land ownership. This review paper investigates the legal statutes on PLRs within the context of 3D land administration and the stipulations used to provide unambiguous modelling of PLRs, as provided by the relative literature. Moreover, the PLRs applied in the 3D space, to clearly depict rights, restrictions and responsibilities on the relevant spatial unit (land, air, marine parcel, mine, utility network, etc.), are particularly examined. Therefore, this work is to critically review and assess the aforementioned approaches on PLRs’ registration, modelling and organisation, as provided by a literature survey, and provides an overall view of the requirements and challenges within the development of 3D Land Administration Systems also considering standardisation developments.
This research focuses on the multiple stratification of real property, in the form of overlapping real property rights and Public Law Restrictions (PLRs), the legal instruments that are used to support vertical segmentation of land, their limitations and the legal amendments required for the operation of stratified land rights and volumetric real property units.
Interrelation between the legal and the spatial component of real property units is made, in terms of the powers that are assigned to right-holders through real property rights and of the spatial boundaries within which such powers can be exercised. Advance from “indivisible” ownership concepts, deriving from Roman principles on land ownership, to the “excision” of ownership of navigable air space or of underground space for mineral activities, as well as the assignment of legal powers to third parties through limited real rights, depicts the need of legal instruments that circumvent the absolute character and the indivisible content of real property ownership. Further dissociation of surface parcel ownership from that of over (or under) lying structures, or of imposing volumetric Rights, Restrictions or Responsibilities (RRRs) is required by the increased spatial needs of modern societies and community living. Existing legal instruments, such as servitudes (easements), rights of superficies, emphyteusis, composite ownership concepts, or special real property rights, face limitations when applying to modern cases of real property stratification, thus highlighting the need of “enhancing” property law and cadastre legislation to support the vertical segmentation of real property and the assignment of volumetric real property rights.
This thesis is structured in eight chapters, which respond to its research aim. First, the cases requiring real property stratification are identified, followed by studying of existing legal instruments used for real property stratification. Then, legal issues related to volumetric real property units are identified, analysed and compared, in order to evaluate existing concepts of real property stratification and propose legal amendments that address their limitations.
Chapter 2 presents characteristic cases of overlapping land rights at international level. Depending on each country’s level of development, the abundance of land and urban planning priorities, simpler or more complex cases of overlapping rights can be identified. Such cases may range from composite ownership concepts, such as apartment ownership, overlapping and interlocking structures, infrastructures and networks, to rights deriving from customary tenure. Public Law Restrictions (PLRs), also fall within this field, constituting non-materialised legal volumes where restrictions are imposed.
The third chapter of this thesis deals with the legal framework that supports 3D RRRs on land. It starts by describing the different types of classifying legal systems. The different aspects of each type of classification are depicted, while the distinction between Civil and Common Law jurisdictions was considered to serve the purposes of this work, as it does not allow grouping heterogeneous legal systems, in terms of land tenure systems, cadastral infrastructure and cadastral legislation. Presentation of the main features of limited real property rights used for real property stratification follows. These include, within the context of Civil or Civil law based jurisdictions, servitudes (easements), usufruct, the right of superficies, emphyteusis, composite
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ownership rights, as well as special property rights and objects. Within the context of Common law, their equivalent concepts, such as easements, life-estates and leasehold are also presented. Issues of delimitation of real property units and of their boundaries are also taken into account in this chapter.
Chapter 4, delves into the relation between physical and legal space. Given that right holders are allowed to exercise specific powers to a specific space, the relation between legal and physical space is fundamental to land administration systems and it is reflected on the structure of different land registration systems. Integration of legal and physical space is aimed through various approaches, including the introduction of land objects (denoting a piece of land where homogeneous conditions exist within its boundaries), as well as through standardised models (e.g. the Land Administration Domain Model and its proposed legal specialisation, the Legal Cadastral Domain Model), or exploitation of 3D modelling techniques, such as Building Information Modelling, or 3D city modelling standards (e.g. CityGML).
Chapter 5 emphasises on the legal issues related to stratification of real property and 3D Cadastre, within extensive research among legal provisions of different countries internationally, both of Civil and Common law legal tradition (also including jurisdictions of mixed legal tradition). Provision to include jurisdictions both of deed and title registration systems was made, along with different types of cadastre purposes (legal, fiscal and multipurpose cadastral systems). Examination of legal issues related to 3D cadastre internationally, concluded to the main concerns regarding 3D regulation and management of real property which include the definition of real property, the terminology used to describe its spatial extent, the relation between stratified and traditional real property objects, the distinction of 3D real property objects from those deriving from employing limited real property rights and, the use of 3D property to support both legal and physical space. Public Law Restrictions that pertain volumetric connotation are also examined in this chapter.
Following the presentation of the different approaches regarding real property stratification, as well as the legal instruments employed by different legal systems, chapter 6 compares aforementioned concepts and legal instruments. Definition of land pertains, most commonly, the earth and the space above and below it, while ownership of land may be subject to land use-based limitations (e.g. mining or aviation). In several jurisdictions, reference is made to specific height and depth levels of real property ownership, instead of indivisible ownership columns. This notion is also reflected on national definitions of traditional “land parcels”. In order to address the limitations of “indivisible” land parcel ownership columns, several jurisdictions have introduced individual 3D real property units, in terms of delimited volumes of real property (instead of an indivisible volume extending above and below a land parcel). Different types of 3D real property units are available to each jurisdiction, while vocabulary and content of 3D real property units depends on each country, state or province. Relation between 3D real property with traditional land parcels is regulated by generic (non-specialised) restrictions, the establishment of statutory implied easements, or specialised provisions. Each case promotes different principles, such as individual agreements, or community living. Distinction between 3D real property units and property units deriving from limited real property rights is required to highlight their different operation and context; the former are used to extend the capacities of traditional real property units by addressing complex cases of stratified real property rights, while the latter operate ancillary, either in by
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“excising” powers from the right of ownership, or allowing specific types of land exploitation (e.g. customary real property units). Stratification of real property also pertains Public Law Restrictions and regulations. These are either explicitly defined in terms of height, depth and volume, or implied, by reference to physical, or even to non-geometrical, qualitative characteristics. Despite the abundance of Public Law Restrictions and their registration and mapping, such restrictions are imposed on (traditional) land parcel level, thus limiting exploitation capabilities of the land parcel volume as a whole. In several Common law jurisdictions, the concept of volumetric easements is considered to be applicable; however, the specific types of statutory easements inhibits the exploitation of volumetric easements for Public Law Restrictions with 3D spatial connotation.
In chapter 7, “best practices” for real property stratification are identified, emphasising on the 3D partition of real property both for Private and Public Law purposes. As regarding real property rights related to Private Law, emphasis is given to the following aspects: (i) facilitation of investments, (ii) overcoming difficulties with overlapping building situations, (iii) allow transactions between 3D objects, (iv) “compatibility” and relation between stratified and traditional real property units, and (v) distinction from other types of real property units. Although limited real property rights are better adopted to traditional real property units, they face significant limitations in creating distinct real property volumes in multiple spaces within the same land parcel footprint. Moreover, limited real property rights face limitations regarding allocation of ownership rights on stratified real property units (since such rights may only “excise” specific powers from the owner of the surface parcel and allocate them to the limited right-holder). On the other hand, 3D real property units provide better insight on real property situations on multiple levels by different right-holders, and allow for more efficient management of real property. Common law jurisdictions seem to be better adjusted to the concept of real property stratification; the estate system that applies in Common law jurisdictions, which vests ownership to the state or the crown, is closer to the allocation of real property rights on multiple space volumes, compared to the Roman principles that apply to Civil Law jurisdictions. This is also reflected on the provisions regarding stratified real property units in Civil and Common Law based jurisdictions. The former restrict the use of 3D property units for buildings or constructions, while the latter leave room for non-feasible legal spaces as well. 3D stratification of PLRs constitutes a best practice by itself, since Land Administration systems aim to present the full range of RRRs that apply on land. 3D PLRs serve within this purpose in two ways. First, they allocate the exact volume of space that is subject to a restriction, while, second, leave the rest of the space available to exploitation. Although PLRs with 3D connotation already exist, such restrictions apply to surface parcels as a whole, mainly in the form of land expropriation. This increases bureaucratic and procedural workload, while also retains significant volumes of “exploitable” space, unexploited.
Finally, chapter 8 concludes this work by discussing the findings of the previous chapters and responding to the research questions formulated to address the aim of this thesis, while also proposing further research fields.
