Understanding Real Rights and Powers of Property Owners

Posted on Sep 1, 2024 in Law & Jurisprudence

REAL RIGHTS

Real rights provide direct and immediate power over a property but are not limited to one specific thing. They also impose obligations on third parties who do not hold the right, ensuring that the owner’s rights are not disturbed. This enforceability against third parties is termed “effective erga omnes,” meaning effective against all.

The power structure of a real right can be full, as in the case of property rights, or limited, as in the case of real rights over another’s property. It can be held by one person or several people jointly.

Acquisition of Real Rights

According to the Civil Code, real rights can be acquired through:

  • The law
  • Donation
  • Testate or intestate succession
  • Certain contracts
  • Tradition (delivery)
  • Prescription

The Civil Code also states that property can be acquired through occupation, accession, and by an award from an authority. These rights, which should be documented in a public record, can be extinguished by:

  • Loss or destruction of the property: If the loss is partial, the real right remains on the remaining portion.
  • Waiver: A declaration of the owner’s will to relinquish the right. In the case of property rights, this must be accompanied by the abandonment of the property.
  • Consolidation: When one person holds both the ownership and a limited real right over the same property.
  • Prescription: Non-use of the right for a statutory period.
  • Expropriation: When the property is taken for public use.

POWERS OF OWNERS

While the Civil Code primarily mentions the right to enjoy and claim ownership, this right encompasses all possible powers not prohibited by law. These powers include:

  1. Using the property
  2. Appropriating the fruits of the property
  3. Possessing the property directly or indirectly
  4. Disposing of the property through transfer or encumbrance
  5. Defining the property through enclosure, boundaries, or demarcation
  6. Claiming and protecting the property from disturbance

These powers apply to all tangible properties, both movable and immovable, that are specifically determined, excluding generic and incorporeal things.

Ownership of Soil and Subsoil

The Civil Code states that property ownership extends to the ground surface and everything below it. The owner has rights to the soil and subsoil within legal limits and can conduct works, plantations, and excavations as deemed fit.

Limits and Constraints on Property Rights

Property rights are subject to limitations imposed by law. The main limits include:

  • Legal easements
  • Medianeria rights (shared walls and fences)
  • Vecindad (neighborly relations) laws
  • Rights of withdrawal and pre-emption

Restrictions on property rights, on the other hand, are limitations imposed on the owner’s powers in specific circumstances. These restrictions include:

  • Real rights over another’s property, such as easements
  • Administrative restrictions
  • Prohibitions on alienation (selling or transferring the property)

Legal Actions to Protect Property Ownership

The legal system provides several actions to protect property ownership:

1. Actions for Recovery

These actions are taken when the owner is unduly deprived of the total use and possession of the property. The rightful owner brings the action against the current possessor.

2. Negatory Action

This action aims to declare that the property is not subject to a claimed obligation and to stop the exercise of that obligation. For example, an owner can use this action against someone claiming a limited real right over their property.

3. Declaratory Action

This action seeks only to have the defendant acknowledge the plaintiff’s ownership without demanding the return of the property.

4. Action for Closing an Estate

Any owner has the right to enclose their property with walls, ditches, hedges, or other means, subject to existing easements. While the Civil Code refers to rural properties, this right extends to urban properties as well. The closure can be physical or symbolic, such as a sign.

5. Action for Boundary and Demarcation

This action establishes the physical limits or boundaries of a property. Demarcation involves marking these boundaries with external signs. The process should be done according to the titles of each owner or, in their absence, based on possession or other evidence. If the value of the property exceeds a certain threshold, the demarcation follows a formal legal procedure.

6. Demolition of a Dilapidated Structure

This action allows for a court order to demolish a structure in a state of disrepair that poses a serious risk to neighboring properties. This action is typically conducted through a summary proceeding.

7. Full Repossession

This action, also conducted through a summary proceeding, allows for the recovery of a property, such as a rural or precariously transferred urban property, by the rightful owner, beneficial owner, or any other entitled person.