Real Rights: Subjects, Faculties, and Legal Defenses

Posted on Dec 21, 2024 in Law & Jurisprudence

Item 2: Real Rights

There can be no real rights without a subject. The subjects of the actual legal relationship may be:

  • Owners of individual rights over the thing: It is he who has power over the thing and who can give effect to the real action. The holder must be determined, or at least temporarily given.
  • Subjects who hold power over the thing: The holders of real rights can be:
    • Individuals: Have the capacity to act or not. (Art. 443 CC)
    • Legal persons as subjects of legal relations as well, e.g., the State.

When the situation occurs in community property law, we speak of “ownership” or “condominium”. The owner may be:

  • Unique (as we discussed above).
  • Plural: i.e., overlapping of people in ownership of a property right, resulting in:

The Community

A group of people who share one thing gives rise to “total real rights”. Actual legal relationships occur between people, with reference to certain things, which can be:

  • Realities of the outside world: A country estate, a book, etc.
  • Creations of the mind: A patent, trademark, etc.

A legal relationship to them is applied the theory of the legal relationship and of subjective rights, but the actual legal relationships are not always connected to each specific people.

Security Interest

The situation where the owner is the thing which is set a property right in favor of another. The property is fully taxable but aspires to one day be full.

In the security interest (mortgage real estate), subject relations are exercised within a mandatory relationship established between specific people. The real right accessory is offered as a receivable.

Faculty of Enjoyment or Direct

The ability of the subject of the relationship to obtain the profits that the thing is capable of providing, but these utilities can be different according to the law of the question. We have four subfaculties:

  • “Ius utendi”: The owner can use the thing itself.
  • “Ius fruendi”: The owner uses the fruits of the property and may seize them.
  • “Ius abudendi”: To meet their needs, the property owner must destroy or consume the thing.
  • “Ius posidendi”: The power to hold the thing for being the property owner or usufructuary.

Faculty of Disposition

The ability of the subject or owner of the relationship to transfer their own legal status to another person. This power can be applied not only to real relationships but also to credit. In principle, the owner has the power of disposition, as they have the thing for a consideration (purchase) or free (donation), which has the beneficial owner, and it is the holder of the loan secured by mortgage (Art. 149, Mortgage Act). It is also available when you give up the right as the resigning is making a real act of provisions, and what is required is full capacity to act. There are three groups:

Acts of Alienation

Involve obtaining the market value of the real right in question. The general rule is that all real rights are transferable or alienable. Exceptions:

  1. Absolute: Real rights can never be disposed (art. 525 CC “right of use or occupancy”).
  2. Relative: Real rights may alienate but to fulfill requirements. Example: A neighbor of a property you own your home and part of the commons; therefore, the sale of the house will also sell such common property.

Tax Acts

Acts of taxation are stable limitations on the power that has the real right holder. The real law is broader property; if the powers to use and enjoy those transferred to another person who is not the owner, the owner will have their powers limited (usufruct), but when it ends on the right of usufruct, the owner will have their full faculties.

Acts of Renunciation

The CC provides numerous cases of waiver of real rights (art. 513.4, 529, 546.5 CC). Effects:

  1. Tangible property: Through the movable waiver has become an asset of no one; therefore, it can be purchased by anyone through occupation.
  2. Real property cannot be acquired by individuals through occupation. They are vacant properties that become part of the state or the CCAA.

If the cancellation occurs with a real right which is in condominium, for example, if an owner decides to forgo his part, this part is not ownerless, but that becomes part of the other co-owners (art. 395 CC).

If the holder of the usufruct or easement waiver, the owner may recover all of the powers.

Prohibitions of Disposition

For example, a person sells a property, and we pay cash; to make sure that person is going to pay us, we can agree that it will not have the property until the full price is paid. They can have three different origins:

  • Legal origin (art. 325 CC): The legislature is the principle that you can not dispose of the property. Example: Art. DC 196 prohibits the heirs dispose of the assets of the deceased as a gift for five years.
  • Prohibitions redress (Bankruptcy Act 2003).
  • Bargaining bans or voluntary basis (art. 26 and 27 of the Mortgages Act).

Faculty of Persecution

The possibility of a legally protected property right holder to pursue or go get the thing where you are and whoever is the person or stop in his hands.

You can come into play the figure of a non-domino acquisitions, depending on the protection of the interests of bona fide third-party purchasers so that the power of persecution they have the real right holder can not be that third-party purchasers what are of good faith and for value.

Faculty of Preference or Priority

Trying to resolve the collision of different property rights. When different real rights are in conflict over one thing and they are all compatible, it should prefer to sacrifice one or more and another or others, including establishing a range or hierarchy. For example, several mortgage rights on the same farm. Being compatible rights, the consequence is that the previous mortgage has a better range than the posterior. If rights are mutually incompatible, for example, several full property rights on the same farm, the preference of the former excludes the back. And in the case of registered rights, it prevents access to the books of the Land Registry.

Means of Defense

The content of the actual legal relationship is incomplete with only allusion to the powers, as the scope of power of the incumbent is also integrated with the means of defense that correspond to protect and defend its legal position. Against disturbances in the exercise of its right, the operator can react and is protected by the exercise of specific actions, which are:

Real Action

  • Strictly possessory actions.
  • Action Request (defense converge possessory and use of legal titles).
  • Actions purely declarative, two types:
    • Actions confessional: That which corresponds to the holder of the usufruct against the landlord to deny the existence of that right.
    • Actions negatoria: That is for the owner of the property in order to reject the existence of an easement to a third party seeks to arrogate upon it.

Concept Competition

Competition of several subjective rights that are designed the same good when those rights belong to different owners, it determines a collision between them. Therefore, the real right holder is satisfied only by exclusion of other people’s turnout to be resolved by establishing among them: Preference and rank or hierarchy.

Conclusion

The most ancient law is preferred to the more modern, therefore, exclude it. Situations:

  • That the competition is established between rights in rem of the same nature: The oldest law will be preferred to modern law. It does not mean that it is prevented the subsequent formation of a right identical to the first, but the second profile can not limit or prejudice the right older. For example, if on the same farm has been lodged by other mortgages, the first awarded to the holder a right full value realization of mortgaged property. Other subsequent mortgages shall be entitled to the remainder of the price, if any.
  • When the competing rights are diverse in nature: It applies the principle of preference and priority of the oldest law.
  • That different real rights are compatible concur: By assuming different uses of the thing. For example, it is first a right of way and then another aqueduct on the farm. If compatibility is complete, there will be no collision; however, if there is any collision, the right not impaired after the previous one.

Prohibition: Background, Classes, and Effects

One of the popular features of the property of our CC is that property is a free and open to traffic; this is one of the powers of the property owner, is the power to dispose. Sometimes the transferor of goods intended to prohibit the purchaser for a period more or less long, to convey in turn acquired the property to third parties.

This covenant or obligation is not available MEASUREMENT PRINCIPLE admissible under the freedom and autonomy (art. 1255 CC). The real proscription of disposition are those that depart on a good traffic juridical are regulated in art. 26 and 27 LH and provides some of its manifestations:

  • Admissible only have bans acts gratuitously.
  • Authentic prohibitions can not be perpetual or extend beyond 3 generations.
  • Prohibitions of having to obey a serious interest and deserving of legal protection.
  • Authentic prohibitions make it impossible to have the affected property disposed of voluntarily. It is possible that the transfer occurs as a result of action by the administration, file status, or prosecutorial action by a third party that promotes the attachment of that property.

Legal, Judicial, and Voluntary Prohibitions

The prohibition of disposition imposed by law are fully effective, the invalidity of the act certain device vulnerabilities, and to have legal origin are presumed known by everyone and all without advertising affect registration. 26.1

The pro-business born disposition legal relationship established by a judicial or administrative public should be registered, through appropriate preventive note. 26.2

The prohibition of legal business disposition born inter vivos or mortis causa free of charge, once entered in the register determine the property is null and void any act intended the victim. 26. 3

Disposition that it bans the onerous contracts are agreed upon in inter vivos are not authentic prohibitions; the act device is valid, but the offender will be compensated for the breach. This prohibition should not harm others I have access to the RP. 27