Key Real Estate Rights and Property Concepts Explained
Horizontal Property (Condominiums)
Horizontal property refers to distinct floors or apartments within a building that are independent, have direct access to a public way or a common passage, and can belong to different owners. Each owner possesses their apartment exclusively and is a co-owner of the land and common elements.
Owner Duties and Obligations
- Contribute to the costs of repairs of common elements in proportion to their share.
- Refrain from making alterations without common consent.
- Avoid actions, factual or legal, that impede the rights of other property owners.
- Pay common expenses.
- Pay extraordinary expenses as agreed upon.
- Comply with assembly resolutions and regulations.
- Pay taxes and related expenditures for their unit and share of common areas.
- Not use the unit in a manner contrary to its intended purpose or the regulations.
Regulations: A set of rules governs the relationships between co-owners.
Understanding Mortgages
A mortgage is a security right established over real estate to guarantee a monetary credit, where the property remains in the debtor’s possession.
Characteristics
- Accessory: The mortgage is extinguished if the principal obligation (the debt) is extinguished.
- Indivisible: Every part of the mortgaged property secures the entire debt.
- Conventional: Established by agreement between the parties.
- Formal: Must be constituted by public deed and registered in the property registry.
Effects
- The owner retains possession but cannot perform legal acts that diminish the property’s value.
- The mortgagee (creditor) has priority over other creditors for collecting their credit from the property’s value.
- The mortgagee can request a judicial auction if the debt is not paid at term.
- It has effects against third parties once registered.
- Multiple mortgages can exist on one property; priority is generally determined by registration date.
Extinction
- Fulfillment of the principal obligation (debt repayment).
- Express waiver by the mortgagee.
- Prescription (e.g., after 20 years, depending on jurisdiction).
- Acquisition of the property through public auction where the mortgage debt is settled.
- Destruction of the mortgaged property.
Pledge (Prenda): Security on Movable Assets
A pledge occurs when a debtor delivers a movable item or a credit right to the creditor as security for a present or future obligation. Once the debt is paid, the creditor must return the pledged item to the debtor.
Antichresis: Property Possession for Debt
Antichresis is a right granted to a creditor by the debtor (or a third party on their behalf), allowing the creditor to take possession of a real estate property and apply its fruits (income) towards the interest and principal of the credit.
Usufruct: Right to Use and Enjoy Property
Usufruct is the real right to use and enjoy another person’s property, with the obligation to preserve its substance. It can apply to movable or immovable property, is often subject to terms (e.g., duration), and is typically established by contract.
Use and Habitation Rights
The right of Use is the real right allowing an individual to use another’s property and take its fruits to the extent necessary for their and their family’s needs, while preserving the property’s substance. If this right applies specifically to a house and the utility of dwelling in it, it is called the right of Habitation.
Easements: Rights Over Another’s Property
An easement is a real right, perpetual or temporary, established over someone else’s property (the servient estate) for the benefit of another property (the dominant estate) or a person. It allows the beneficiary to use the servient estate for a specific purpose or exercise certain rights over it.
- Real (or Predial) Easement: Established for the benefit of another property, owned by a different person (e.g., right of way, aqueduct easement allowing water passage through another’s land).
- Personal Easement: Established for the benefit of a specific person, regardless of property ownership (similar in concept to Usufruct or Use/Habitation).