Spanish Civil Code: Property Rights and Easements
Q&A on Spanish Civil Code: Property and Easements
23. Easement of Light and Views
The easement of light and views is an easement related to property tax and voluntary refusal (if the wall itself is open). It is considered apparent and continuous. It can be positive if there are openings on another’s wall or a dividing wall, and includes cantilevered balconies when there’s an obligation to allow invasion of airspace.
24. Surface Rights Origin and Duration
Surface rights originate from the contract between the landowner and the builder. The holder of surface rights can build on the land, but only the landowner can own the land itself. Surface rights cannot be perpetual; they are temporary and limited to a maximum of 99 years.
25. Mortgage on Rights of Use and Habitation
No, a mortgage cannot be formed on rights of use and habitation. Mortgages apply to real estate or real rights on real estate, while the right to use and habitation is a non-transferable right.
26. Right of First Refusal vs. Right of Legal Redemption
The right of first refusal operates before the acquisition of the property. The right of redemption operates after the acquisition, once the property has been acquired by the person against whom the right is exercised and the legal transfer of ownership has been completed.
27. Beneficiary of Public Trust Meeting Art. 34LH Requirements
This beneficiary is called a “third mortgagee.”
28. Bare Owner’s Rights with Usufruct
- Dispose of the bare ownership without prejudicing the usufructuary.
- Establish easements that do not harm the usufruct.
- Carry out work and improvements within the limitations of Art. 503 CC.
- Mortgage the property, with the understanding that the mortgage extends to the full ownership unless otherwise specified.
29. Holes and Windows as Positive Easements
Holes and windows in a wall are considered positive easements for adverse possession when they exceed the legal distance allowed without an easement, becoming an apparent sign of servitude.
30. Pledge vs. Mortgage
- A pledge covers only personal property and requires displacement of possession.
- A mortgage applies to real estate or real rights over immovable property. Possession is not required, but registration in the Property Registry is.
32. Inmatriculación Registration
Inmatriculación is the first entry of a property into the Property Registry. This first listing must be of ownership.
33. Usufructuary’s Limit to Preserve Substance
The usufructuary cannot diminish or impair the productive potential of the property. They must use it responsibly.
34. Type of Easement: Right of Way
A right of way is a legal or forced easement.
35. Surface Rights
Surface rights can be transferred inter vivos or mortis causa, for consideration or gratuitously. They can also be subject to personal rights or encumbered with a mortgage. Surface rights constitute property in a horizontal property regime, allowing the exercise of powers related to transmission and private elements.
36. Special Power of Attorney for Mortgage
The voluntary representative for a mortgage must have special powers, meaning:
- The power of attorney must specifically authorize the mortgage.
- The mandate must be express, stating its purpose and content.
- It must be documented in a public deed.
37. Role of Registry Entries
Registry entries reflect the legal situations of properties, providing tabular publicity and legal security to transactions.
38. Usufruct vs. Use
Usufruct: The right to use and enjoy another’s property while preserving its substance and form. It creates a legal relationship between the usufructuary and the owner. It is a real right of enjoyment and limits ownership.
Use: The right to use the fruits of another’s property to meet the needs of the user and their family. It is a temporary personal right.
39. Easement Classification: Light and Views
Light and views are classified as apparent and continuous easements.
40. Usucaption of Easements (Art. 537)
- Positive Easement: The time period begins when the easement is first exercised.
- Negative Easement: The time period begins when the dominant tenement owner formally prohibits the servient tenement owner from performing an act that would be lawful without the easement.
41. Surface Rights
Surface rights allow someone (the surface rights holder) to build on or plant in another’s land, above or below ground. Ownership of the structures or plants belongs to the surface rights holder for the duration of the right, which is temporary. Upon termination, ownership reverts to the landowner.
42. Timeshare Rights
Timeshare rights grant the holder exclusive use of a property for a specific period each year. The property must be independently usable, with access to a public road or a common area. It must be furnished and may include complementary services. Timeshare arrangements last between 3 and 50 years, with no compensation upon termination.
43. Real Estate Mortgage
A real estate mortgage is a real right that secures an obligation with real property. In case of default, the holder can force the sale of the property, regardless of the current owner.
44. Types of Voluntary Mortgages
- Conventional: Established by agreement between parties.
- Unilateral: Established by the property owner’s sole act.
45. Marginal Notes in the Registry
Marginal notes connect different entries, pages, and books within the property registry.
46. Principle of Formal Publicity
The Property Registry is open to anyone with a legitimate interest. Its public nature is ensured through the books themselves or certificates issued by the registrar.
47. Usucaption of Easements
Continuous and apparent easements can be acquired through usucaption. The period is 20 years, regardless of good faith or just title.