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Spanish Law Explained 

RIGHTS ON REM UNDER SPANISH CIVIL LAW

The Possession under Spanish Civil Law

 

Possession is a de facto lordship or power exercised over a thing, whether or not one is entitled to it.

This de facto power may, in turn, emanate from a right that one has over the thing, in which case possession would be linked to the ownership of that right, or it may appear to be unrelated to any right, since the legal system also contemplates and attributes certain effects to the de facto lordship that is exercised even if there is no right over the thing.

Every possessor has the right to be respected in his possession. In the event that he is disturbed in it, his possession is protected and can be restored by the means established in the laws of procedure – Civil Code Article 446 -.

However, the mere exercise of a de facto power over a thing or right without the apparent external will to act as the holder of the right or the possession with the tolerance of the holders are cases of possession, which only produces the effects that the law establishes for each specific case.

 

  1.  Classes

Natural and civil possession

Civil Code Article 430

Natural possession is the possession of a thing or enjoyment of a right by a person, and civil possession is that same possession or enjoyment coupled with the intention of having the thing or right as one’s own. When the Civil Code Article 430 speaks of natural possession it refers to possession as an act.

Natural possession is all possession of the thing, and requires only one of the elements of possession, namely, possession. civil possession, on the other hand, requires the intention of having the thing or right possessed as one’s own.

 

1.A. Possession exercised directly and through another

Civil Code Article 431

Possession can be exercised over things or rights by the same person who has them and enjoys them or by another person on their behalf.

This is a de facto possession for another. It is the servant of possession, who exercises effective power over the thing by virtue of a relationship with another, by virtue of which he has to follow his instructions with reference to that one.

In general, these are cases in which there is a relationship of dependence between the true holder and the person who performs acts of possession on his behalf, for example, because he acts as an administrator, bailee or agent of the former.

Thus, for example, when a municipality has possession of a certain property and exercises it through the neighbours or groups of neighbours or when the possession of a property of a legal entity is exercised by administrators, managers, caretakers or guardians.

 

1.B. Possession as an owner and as a holder

Civil Code Article 432

The possession of the assets and rights can be held as an owner or as the holder of the thing or right to keep or enjoy it, the domain belonging to another person. When there is a person who possesses as a holder of the thing, recognizing its dominion in another person, there are in fact two possessors, since the owner does not lose the possession of his property right, even though materially he does not possess the thing.

Only possession in the capacity of owner or holder of the real right in question can lead to the acquisition of the domain name by usucaption.

For the purposes of interdiction protection, it makes no difference whether possession is held in the capacity of owner or holder.

It is not enough with the pure motivation of the holder represented by the spirit of having the thing for himself, but it is also necessary the existence of unequivocal acts, which are manifested externally in a clear way. That is to say, to act and present himself in the outside world as the effective owner and proprietor of the thing on which the acts of possession are projected, carrying out acts that only the owner can carry out by himself. For example, the payment of the community of owners’ fees and the urban land tax, as the true owner and not on behalf of another.

It is necessary to prove that the holder is not merely a holder, since there is no rule that possession as an owner should be presumed.

In order for possession to be considered as owner, it is not required that it has been acquired from the person who appears as owner in the Land Registry, nor should this possession be confused with good faith.

 

1.C. Possession in good and bad faith

Civil Code Article 433

A good faith possessor is one who does not know that in his title or way of acquiring possession there is some vice that invalidates it – Civil Code Article 433 -, or what is the same, who believes that the person from whom he received the thing was the owner of it and could transmit it – Civil Code Article 1950 -. The person in possession in bad faith is the one who is in the opposite case.

These are characteristics of good faith:

– is identified with an ignorance of the existence of defects in the acquisition title and must, in any case, be excusable.

– is not a state of conduct but of knowledge: in terms of rights in rem, it is not related to machinations or deception but simply to knowing or ignoring.

– is a question of fact whose determination falls within the competence of the court of first instance, inasmuch as it is a legal concept which is supported by and results from the assessment of conduct and behaviour inferred from facts extensively examined in the proceedings.

– is a legal concept freely deduced by the sentencing court, as it is a matter of fact, although its assessment may be subject to a judicial review.

Good faith is presumed, so a clear and strong demonstration of its nonexistence is required.

The continuity of good faith is also presumed. If possession began to be enjoyed in good faith, it must be shown that possession ceased in that concept.

 

Whether possession is in good or bad faith has different effects in law.

 

 Holder in good faithPossessor in bad faith
Fruits

He makes his own the fruits he has already received – Civil Code Article 451 -.

In the case of those pending at the time of cessation of possession in good faith, he is entitled to receive the expenses incurred for their production, and in addition to that part of the liquid product of the harvest proportional to the time of his possession – Civil Code Article 452 -.

It must pay for the fruits perceived and those that the legitimate holder would have been able to perceive.
Necessary maintenance costsBoth have the right to be reimbursed for expenses incurred by the person who has the best right to possess, but only the holder in good faith may retain the thing until he is satisfied – Civil Code Article 453 and Civil Code Article 455 -.
Useful and luxurious expenses or recreation

Useful expenses. He is also entitled to be reimbursed for expenses incurred and to keep the thing until they are satisfied – Civil Code Article 453 -. The person who has the best right to own can choose between paying the amount of the expenses, or paying the increase in value that the thing has acquired for them.

Luxury or recreational expenses. They are not payable, but may be withdrawn provided that the object on which they fall is not damaged, and that the successor in possession does not prefer to pay the amount of the expenditure – Civil Code Article 454 -.

He does not have the right to be reimbursed for expenses, but he may take away the objects in which those expenses have been invested, provided that the thing does not suffer deterioration, and the legitimate holder does not prefer to keep them by paying the value they have at the time of entering into possession – Civil Code Article 455 -.
Deterioration or loss of thing or rightNo response, except in cases where it is justified that he has acted with malice – Civil Code Article 457 -.It is responsible for the deterioration or loss in any case, including those caused by force majeure when it has maliciously delayed the delivery of the thing to its legitimate holder – Civil Code Article 457 -.

 

1.D. Possession of things and rights

Civil Code Article 437

Both things and rights can be possessed, as long as they are susceptible to appropriation.

As assets not subject to possession have been indicated the assets of public domain for the purpose of exercising summary defence actions. and, in general, all those rights that are not susceptible to stable and de facto exercise, such as the rights derived from a concession contract, the denominations of bank or banker, the right of the lessor to collect the rent or to maintain the validity of the contract for a time or the clientele.

However, the rights to lights and views, easements, the flight of a property and the right not to install new gas connections on a given control panel are subject to possession if the corresponding price is not paid in advance.

Interdictional protection is only given to rights that are susceptible to stable and continuous possession, which can be appreciated erga omnes.

 

1.E.  Mediate and immediate possession

It is immediate possession that one has directly, without a possessory mediator. it is mediate possession that one has through the possession of another. Therefore, with respect to the same thing there can be two or more possessions, since the mediated possessor possesses through the immediate possessor. Possession by means of mediation is a possession without material contact with the thing, but recognized by the immediate possessor.

There is a splitting of possessions: the mediate possessor has possession as a legal power, and the immediate one as a de facto power. Mediated possession is that which is held or possessed through another possession corresponding to a different person – immediate possessor – with whom the mediated possessor maintains a relationship from which the duality or plurality of possession arises. For example, in a lease, the lessor is the intermediate possessor, and the lessee is the immediate possessor.

 

1.F. Vicious possession and acts merely tolerated

Civil Code Article 444

Vicious possession is that acquired by violent or clandestine dispossession from another possessor.

Clandestine are the acts of possession carried out secretly and, therefore, without external knowledge or diffusion of the same, or those carried out secretly and without publicity. For example, the use of a room accessed by an unusual route, such as a window.

Acts of mere courtesy or benevolence for reasons of family, friendship or neighbourliness are tolerated.

Those acts that are carried out in the belief of exercising a right are not considered merely tolerated. The reality of the tolerated act -understood as an occasional and isolated action, based on the pure condescension of the owner or possessor requires that whoever is favoured by it must be, or rationally must be, aware that this and no other is the origin and cause of its use.

Merely tolerated acts, and those executed clandestinely and without the knowledge of the possessor of a thing, or with violence, do not affect possession. The dispossessed possessor and the one who tolerates the possession of another, continues conserving before the Law his condition of possessor, and can exercise the interdict defense.

       

        1.G. Coposession

Civil Code Article 445 and 450

There is coposession when several people possess a thing at the same time, so that all of them exercise over it a lordship that is not exclusive, but limited by that of others. Possession as a fact is not recognized in two different personalities, with the exception of cases of indivisibility. In the event of a dispute over possession, the current possessor is preferred. In the case of two holders, the oldest is preferred, and in case the seniority is equal, to the one who presents the title. If all these conditions coincide, the thing is placed in deposit or judicial custody while the decision on its possession or ownership is made through the corresponding channels.

When a thing is owned in common, it is understood that, for the entire duration of the indivision, each of the participants has owned exclusively the part that corresponds to it when it is divided.

Case law admits the legitimacy of a coowner to sue another.

 


  1. Acquisition

Civil Code Article 438 to 445

 

Possession of the property or right in rem is acquired:

– By the material occupation of the thing or right possessed.

– By the fact of being subject to the action of the will of the possessor.

– For the own acts and legal formalities to acquire such right. This form of acquisition is divided into two cases: in the following numbers:

– acquisition of possession by delivery.

– acquisition of possession by operation of law.

 

Through delivery

Surrender or tradition transmits possession, although it does not necessarily have to be done by materially handing over the thing, but can be done by fulfilling certain legal acts and formalities that do not involve physical contact with the thing. For example:

– The granting of a public deed of sale is equivalent to the delivery of the thing. In any case, tradition by means of the granting of a public deed is a iuris tantum presumption that does not necessarily imply the transfer of possession, but is combattable when it does not agree with reality.

– In the sale of movable property, the sole agreement of the contracting parties is equivalent to the transfer of possession, if the thing sold cannot be transferred to the possession of the buyer or if the buyer already had it in his possession for another reason – Civil Code Article 1463 -.

– In the case of intangible assets, it is sufficient to provide the buyer with the titles of ownership – quasitradition – – Civil Code Article 1464 -.

– It is sufficient for the thing to be understood as being entirely subject to the availability of a certain subject by the mere fact of handing over signs or things representative of that which is transmitted, such as keys or titles.

 

By operation of law

There are cases in which a legal provision invests a person with the status of a possessor without the need for physical apprehension of the thing.

Thus, for example, in matters of inheritance, it is provided that the possession of the inherited property is understood to be transmitted to the heir from the moment of the death of the deceased and, therefore, without the need for him to apprehend it materially – Civil Code Article 440 -. It is called civil possession.

 

Ability to acquire possession

Civil Code Articles 439 and 443

Possession, insofar as it requires the will to possess, requires only the natural capacity to understand and to want, without prejudice to the fact that the exercise of the rights arising from it must be subject to the general rules on the limitation of the capacity to act.

It can be purchased by the person who is going to enjoy it, and also by:

– his legal representative.

– its trustee.

– a third party without a mandate. In this case, the ratification of the person in whose name the act of possession has been carried out is necessary for the possession to be understood to have been acquired

Minors and disabled persons can acquire possession of property and rights, but they need the assistance of their legitimate representatives to use the rights of possession born in their favour.

  1. Loss of Possession

Civil Code Article 460

Possession may be lost for any of the following reasons:a. For abandonment or dereliction of the thing. It presupposes the lack both of lordship over the thing and of the will to exercise it, and demands an externalised will of dispossession.

  1. b. By assignment to another person. Here again, the loss of possession is voluntary, although, unlike abandonment, it is done in favour of a specific person. The title to the assignment may be onerous or free, but in any case it must be transferable, otherwise the assignor retains possession by way of mediation – for example, the owner of the thing that is being leased.
  2. c. For destruction or total loss of the thing or for being out of business. This is an involuntary means of loss of possession, and includes both the physical extinction of the thing and the deprivation of commerciality that occurs after the acquisition of possession.
  3. d. For the possession of another, even against the will of the former possessor It must be a possession incompatible with that of the previous possessor and must last for more than one year, because during the year following the dispossession the possessor can exercise the interdictatory action for the reestablishment of his possession status.

 

Possessory presumptions

Presumption of good faith

Civil Code Article 433 to 435

Good faith is always presumed, and the burden of proof, which may consist of bad faith on the part of the possessor, is on him:

– in proving that the holder knew of the defect which invalidated the title by which he acquired the right to possession. or

– in the case of supervening bad faith, in proving the existence of acts which show that the possessor was not unaware that he possessed the thing improperly.

The proof of bad faith must be clear and unequivocal.

Presumption of continuity in the possessory concept

Civil Code Article 436

Possession is presumed to continue to be enjoyed in the same capacity as it was acquired, unless proven otherwise. It is therefore up to the person claiming it to prove that the concept of possession has been reversed.

The holder invests his original title when, after the acquisition of possession, he possesses in a different concept than the one he acquired – for example, when the lessee starts to possess as an owner.

Presumption of continued possession

Civil Code Article 459 and 466

Until proven otherwise, the current possessor who proves possession in a previous time is presumed to have possessed during the intervening time as well.

Furthermore, a person who recovers possession unduly lost in accordance with the law is deemed, for all purposes likely to benefit him, to have enjoyed it without interruption.

Presumption of possessory legitimacy

Civil Code Article 448

The possessor as owner enjoys a presumption of possessory legitimacy, since the one who possesses as owner has in his favor the legal presumption that he possesses with just title, and he cannot be forced to exhibit it.

Presumption of possession of furniture within the property

Civil Code Article 449

The possession of a property implies the possession of the movable property and objects within it, as long as it is not stated or proven that they should be excluded.

Summary jurisdictional protection  of possession

Civil Code Article 441 and 446. Civil Procedure Act Article 250.1.4º

Possession enjoys special protection from the legal system, which is granted both to those who are deprived of it against their will and to those who are disturbed or disturbed in the peaceful enjoyment of it.

This possessory protection is given concrete form through the granting of special actions and a specific judicial procedure.

Every possessor has the right to be respected in his possession. If he is disturbed in it, he must be protected or restored to such possession by the means provided for in the laws of procedure.

In no case may possession be acquired violently as long as there is a possessor who opposes it. The one who is created with action or right to deprive another of the possession of a thing, as long as the holder resists the delivery, must request the help of the competent authority.

The protection of possession is therefore entrusted to judicial means, without violence being used to maintain or restore the possession status – prohibition of selfprotection.

Possessory protection is carried out by means of specific actions, traditionally called interdicts, which today are carried out by means of oral proceedings – Civil Procedure Law, Articles 437 to 447 -, whatever their amount.

The protection they provide is aimed at:

– the maintenance of the current possessory situation in the face of the disturbance of a third party – an interdict to withhold

– the restoration of the situation in which the possessor who has been the victim of a dispossession – order to recover – found himself.

The main features of the scheme are set out in the following sections.

 

Active legitimation

It is incumbent upon every possessor, even if he is clandestine or violent, which includes the immediate and intermediate possessor, the one who owns and the one who owns in a different concept, the one of good and bad faith, the one of things and the one of rights.

In the field of inheritance, the heir who succeeds to the possession of his deceased is entitled to act against the disturbance or dispossession that he may suffer before he actually has the inherited property in his possession – Civil Code Article 440 -.

 

Passive legitimation

It corresponds to the cause of the disturbance or dispossession, though:

– It reaches not only the material author of the dispossession but also the moral author who benefits directly from the disturbance. it is even enough to sue the latter.

– it is not necessary for the plaintiff to carry out an exhaustive investigation up to the subject who originally determined the antipossessive act, but it is sufficient to determine the inducer closest or immediate to the act of disturbance or dispossession.

 

Competence

Civil Procedure Act Article 52.1.1

The territorial competence corresponds to the court of the place where the property is located.

Requirements

The actor has to prove the following circumstances, which are the prerequisites for the success of the action:

– who had actual possession of the thing at the time of the disturbance or dispossession.

– who has been disturbed or stripped of that possession by the defendant.

– that the acts of disturbance or dispossession have been carried out within the year prior to the time when the interdict is exercised.

Dispossession consists of the performance of material acts or the alteration of the pre-existing factual state, leading to the total or partial deprivation of the enjoyment of the thing possessed, carried out against or without the will of the possessor and with animus expoliandi, meaning the consciousness that the dispossessor has that the act he commits is the result of an arbitrary and undue act, without a title that authorizes it.

The intention of dispossession is always presumed, until the contrary is proved, so that if the acts denounced, and proved in the process, are objectively constitutive of the possessory dispossession, the intention of the agent in carrying them out matters little, since the unlawfulness of the act is not eliminated by the simple allegation of being in the belief that a right is being exercised, the spirit being a defining element only in those cases of occasional or equivocal actions which, affecting the normal enjoyment of the possession of others, may or may not give rise to the provision of guardianship of possession according to the purpose for which they are carried out.

 

Expiration

Civil Code Article 460.4

The action lasts for one year from the act of disturbance or dispossession, since after that time the person claiming to be dispossessed has legally lost his or her possession.

This period is considered to be forfeit and therefore not subject to interruption, except exceptionally when certain prior acts or valid procedural acts that generically or specifically form part of the procedure are inexcusable.

Expiration can be appreciated by trade. It is up to the plaintiff to prove that such a temporary requirement has been met as a constituent element of the action, otherwise the claim will be rejected.

 

Immediate recovery of the illegally occupied property

Law on Civil Procedure Article 250.1.4, 437.3 bis, 441.1. bis 444.1

The following persons and entities are entitled to request the recovery of full possession of a dwelling or part of it, provided that they have been deprived of it without their consent

– the natural person who is the legitimate owner or possessor by another title.

– nonprofit entities with the right to own it. and

– the public entities that own or legitimately possess social housing.

The claim must be accompanied by the title on which the actor bases his right to possess.

The lawsuit can be directed generically against the unknown occupants of the property, without prejudice to the fact that the notification of the lawsuit is made to whoever is in the property at the time of the notification. In order to identify the recipient and other occupants, the person carrying out the act of notification may be accompanied by the agents of the authority.

If the claimant has requested the immediate surrender of possession of the dwelling, the decree of admission of the claim requires its occupants to provide, within 5 days of notification of the claim, a certificate justifying their possession status. If sufficient justification is not provided, the court orders by order the immediate surrender of possession of the dwelling to the plaintiff, provided that the title that accompanied the lawsuit is sufficient to accredit his right to possess.

There is no recourse against the order that decides on the incident and it will be carried out against any of the occupants that are in the dwelling at that moment.

If the defendant(s) do not reply to the claim within the legally prescribed time limit, a judgment is given immediately.

The defendants opposition may be based exclusively on:

– the existence of sufficient title to the actor to own the property. or

– the lack of title on the part of the actor.

The judgment upholding the claim allows its execution, upon request by the plaintiff, without the need for the 20-day waiting period generally provided for in the Civil Procedure Act, Article 548.

In the event that the illegal occupant is in a situation of social vulnerability, he must be transferred to the public services responsible for social policy, if necessary, so that they can take the appropriate protective measures, provided that the consent of the persons concerned has been given. This transfer is contemplated at the following moments -Law of Civil Procedure Article 150.4 and 441.1 bis, draft Law 5/2018-:

– in the notification of the resolution setting the date for the launch.

– in the notification if identification of the recipient or other occupants of the dwelling has been possible. or

– in the decision in which it is agreed that possession of the property will be handed over to the plaintiff and that the occupants will be evicted. 

 

Property of real estate
  1. Subject and social function

Civil Code Article 348

The Civil Code defines property as the right to enjoy and dispose of a thing with no other limitations than those established by law, adding that the owner has an action against the holder and possessor of the thing to claim it.

However, the Sunday powers are many more than the three indicated by the precept – to enjoy, to dispose of and to claim – and therefore it is more appropriate to understand the right to property as the fullest lordship one can have over a thing.

 

A.1. Powers of the owner

Among the powers that correspond to the owner are the following:

  1. Use, enjoyment and exploitation. The owner has the right to possess and enjoy the thing in a broad sense, which includes all the possibilities of obtaining utility from the thing or of dominating it materially. However, these powers may also be the subject of independent rights, as is the case with usufruct.
  2. Disposition. It includes both the power to alienate the thing and the power to tax it.
  3. Exclusion. This implies the right to exclude others from the enjoyment and possession of the property.
  4. Identification. The owner has the right to the physical individualization of the property, being able to carry out its delimitation by means of demarcation, enclosure and marking of boundaries.
  5. Vindication. The owner can claim and defend his property against the disturbances of third parties.

 

A.2. Domain limits and limitations

Are limits to the right of ownership these  to which the owner’s power extends, that is, the ordinary regime of restrictions to which he is subject. As they constitute the normal regime of ownership, neither a special act is required to impose them on each particular thing, nor is it necessary to prove them.

Because of the close relationship that some of these limits have with easements, we have chosen to deal with them together.

These are limitations of the domain, which reduce, in singular cases, the power that the owner normally has over the thing. Unlike limitations, they must be established by a special act relating to the thing whose ownership is involved and must be proved, since ownership is presumed to be free of encumbrances.

The main limitations of the domain are the real rights on other peoples things, which are dealt with in the section corresponding to each of these rights. Thus, for example:

– usufruct

– mortgage and other security rights

– easements

Prohibitions on disposal are also a limitation.

 

A.3. Special Properties

The Civil Code refers to other rules regarding the regulation of certain properties that it calls special, specifically:

waters – Civil Code Article 407 to 425. Royal Legislative Decree 1/2001 -.

minerals – Civil Code Articles 426 and 427. Law 22/1973 -.

intellectual property – Civil Code Articles 428 and 429. Royal Legislative Decree 1/1996 -.

 

A.4 Social function

Spanish Constitution Article 33 and 53

The Constitution has influenced the content of the right to property, establishing that the right to private property and inheritance is recognized, and adding that the social function of these rights delimits their content, in accordance with the law:

– This means that the laws, specifying this social function,  determine the powers included in the domain or establish the limits of its extension or intensity, as well as the charges, duties and obligations that the owner has to comply with by reason of his ownership and for the sake of the common good. In sum, the limits to the domain have their cause in the social function, since the social function supposes the subordination of the right of property to the general interest. The social function of property cannot be invoked as an abstract or undefined concept, since such function corresponds to a legal delimitation of the normal content of such right.

– On the other hand, the right to property is included among the rights and freedoms, but not as a fundamental right, but within the rights and duties of citizens. This means that it can only be regulated by law, which must respect its essential content, although it does not enjoy the enhanced protection afforded to fundamental rights – protection through a preferential and summary procedure and access to the remedy of protection.

 

 

  1. Acquisition of the domain

Civil Code Article 609

For the  Spanish legal system, property is acquired through:

  • the occupation.
  • the law.
  • donation, testamentary and intestate succession and by certain contracts through tradition.
  • the usucapion.

 

B.1.  Occupation

Civil Code Article 610.

It is the act of apprehending something that has no owner, with the intention of making it one’s own. By occupation, property that is appropriable by its nature and lacks an owner is acquired, such as animals that are the object of hunting and fishing, hidden treasure and abandoned movable things.

The possibility of occupying property is excluded, while property without an owner belongs to the General State Administration. The Administration acquires these properties by virtue of the law, without the need for any act, and may take possession of them as long as they are not owned by anyone, and without prejudice to the rights of third parties. If there is a holder in the capacity of owner, the administration must file the claim before the civil jurisdiction.

In the criminal field, the occupation of another person’s property with violence or intimidation is punished – CP Article 245.1. It is the possession, and not the property, the legal asset that protects this crime, and therefore the passive subject can be both the owner and another person who, by any other title, has the legitimate possession of the property and is dispossessed of it by the action of the author.

 

B.2.  Accession

Civil Code Article 353, 355, 358.

 

Accession is a form of acquisition of property by operation of law. By means of it, the acquisition of the dominion over what has been produced – discreet concession or by production – or built – continuous concession or by union – in a certain property by the owner of the same one takes place.

What is produced is the fruit. By them is meant all the profit or yield that, with its own substantiality, derives from the use or exploitation of a thing. They are divided into:

  • natural, which are the spontaneous productions of the land, and the offspring and other products of the animals.
  • industrial, which are those that produce the land of any species as a result of cultivation or work.
  • The following are included in the calculation: the rent of the buildings, the price of the land lease and the amount of the perpetual, life or other similar rents.

The construction carried out by the owner of the property does not pose any problem, being the owner of the building. There is a iuris tantum presumption – admitting proof to the contrary – that the building is understood to have been constructed by the owner of the property and at his expense.

The conflict arises in two ways:

  • building constructed by a person other than the owner of the property – building on another’s property
  • building with materials owned by a third party – building with materials owned by others

 

General rules

The general rules in this matter are:

a The accessory follows the main thing.

b What is attached to a property is incorporated into the same – surface only cedit-. This principle presupposes the principal character of the property, as opposed to the accessory nature of what is built on it. However, this general legal principle is considered by the doctrine as an anachronism given the entity and volume of modern constructions. For this reason, it gives way to the figure of the jurisprudential construction of the inverted access or extralimited construction. By virtue of the inverse accession, the property yields to the building to become an accessory element, with the latter assuming the principal character -accesorium cedit principali.

c The application of the principles of accession is due to the practical purpose of attributing the dominion over the product resulting from the construction -farm and building-. These rules of attribution have practical significance in cases where more than one subject intervenes in the construction -that is, builder and owner of the property, or builder, owner of the property and supplier of materials-, so that they are used to decide to whom such domain corresponds and, consequently, what rights correspond to the other intervening parties.

d The consequences of the distribution or attribution of the domain are a function of the good or bad faith of:

  • the owner of the estate.
  • who builds the building. or
  • whoever supplied the materials.

e The application of the principles of accession has in practice multiple legal limits that must be interpreted together with those in order to obtain the solution to each case. These are the limits that derive from urban planning legislation, from those resulting from the Law on Building Management – Law 38/1999 -, from legislation on horizontal property, or from legislation on subsidized housing, among others.

 

  1. Construction on other people’s property

The assumption is that a person builds, plants or sows on someone else’s land.

Good faith is the reasonable belief that one has title to build on another’s land, is presumed in the absence of proof to the contrary and ceases by the mere opposition of the owners of the land.

Case law has recognized the existence of bad faith on the part of the owner who is deprived of his property, when he has knowledge of the construction being carried out, without any opposition to it.

In the event of bad faith on both sides, the case is compensated and resolved as if both parties had acted in good faith.

 

National Regulation

Civil Code Article 361 to 364

Depending on the good or bad faith of both the owner of the land and the person who builds, plants or sows, there are different legal consequences.

 

  1. Construction with foreign materials

This is the case in which a person, who may or may not be the owner of the land, carries out plantations, constructions or works with other people’s materials. Two cases must therefore be analysed, each with different legal consequences.

 

Construction by the owner of the property

Civil Code Article 360

When the owner of the land, either by himself or by another, carries out plantations, constructions or works with other people’s materials, the owner of the materials has the right to remove them as long as he can do so without detriment to the constructed work, or without the plantations, constructions or works carried out perishing.

If there is any damage, these materials remain on the property, with the obligation of the ownerbuilder to pay the value to the supplier of these materials. In the event that the ownerbuilder has acted in bad faith, he must also compensate the damages caused.

 

Construction on other people’s property

Civil Code Article 365

It is the case that the construction, besides being made with other people’s materials, is carried out on other people’s land. There are also two cases:

a Good faith from the builder. He is responsible to the supplier of the materials. The owner of the property is liable to the builder, regardless of the actions he may take against the builder.

b Builder’s bad faith. The constructor is the only one obliged to pay the supplier the value of the materials, as well as the corresponding compensation. The owner of the land is exonerated from all responsibility towards the supplier of the materials, and can demand that the builder demolish the land.

 

  1. Reverse accession Overlapping construction

It responds to the fact that the builder, with his own materials, carries out the construction, exceeding the limits in such a way that part of it is on his own property, and part on another’s.

It is a legal figure of jurisprudential creation, in whose application the courts have been inverting the criterion of surface only cedit.

In this way, if according to the general principles of access, the property has the main character, being the building the accessory element, in the case of the inverted access it happens the other way around: the building is presented as the main one, relegating the accessory character to the property.

Therefore, if the value of the construction together with that of the builder’s property is higher than that of the partially invaded property, case law establishes that the main thing is the builder’s property and the accessory thing is the partially invaded property.

 

Requirements

The following are established, which must concur for the purposes of the defence of the constructor’s right over the building constructed on another’s property:

a Construction partly on own property, partly on someone elses property. Case law does not recognise the existence of reverse accession – nor, consequently, its legal consequences, which are more beneficial to the builder – in cases where the entire construction is carried out on other people’s land. On the other hand, reverse accession does come into play when the invasion takes place with respect to the subsoil of anothers property.

b Good faith of the builder. The builder must have carried out the building -partly on other people’s land- with the conviction of his ownership of it. In the event of bad faith, the Civil Code Article.  Good faith is understood by jurisprudence as a state of knowledge – and not of conduct – in the builder, who ignores the improper and untitled occupation of another’s land in the construction process. Other indications or attitudes that have helped jurisprudence to conclude the good faith of the builder are the scarce entity of the additional construction and, above all, the absence of timely opposition from the invaded owner. Good faith is always presumed.

c Indivisible character of the building.

d The value of the building carried out is higher than the value of the property occupied by the same.

 

Effects

The constructor has the option of taking over the ownership of the building partially built on the other’s property, by paying the owner the value corresponding to the occupied property, as well as compensation.

Consequently, the builder assumes here the most advantageous position, as owner of the main element, having on his side the option to pay the additional building and acquire the ownership of it.

The value of the property to be paid to the invaded owner is calculated in execution of the sentence, according to the value expertly awarded to the owner at the time of actual payment -not at the time of construction.

As for the compensation due, the aim is to assess the damage and economic loss that will affect the rest of the property because of the deprivation that has occurred – due to the project, the work carried out and the reduction in urban development possibilities.

 

  1. Natural access due to the effect of water

Civil Code Article 366 to 372

The Civil Code provides for the following cases:

a Flood. The adjacent owners acquire by natural access the riparian soil as a consequence of the gradual process of the rivers’ accretion by the gradual effect of the currents. On the other hand, the land uncovered by the natural decrease in water from ponds or lakes is not acquired.

b Avulsion. Neighbouring owners acquire by natural accession the trees dragged by the force of a riverbed, coming from riparian properties in another section of the river, unless the corresponding owner claims within one month. This is not the case if the transported material is a portion of riparian land, which remains the property of the owner of the property from which it was separated.

c Abandoned riverbed. The owners of the riparian lands acquire by natural access the riverbeds that are abandoned due to a natural variation of the same.

d Mutation of a riverbed. The natural variation of a riverbed means that the new soil through which it flows becomes public property.

e Islands that can form in rivers due to the successive accumulation of dragging of upper lands. They belong to the owner of the nearest bank, or to those on both banks if the island is in the middle of the river, and are then divided longitudinally in half. If a single island thus formed is far from one bank more than another, the owner of the nearest bank shall have full ownership of it.

 

B.3.  By contract

Under Spanish Law, unlike others, for the acquisition of property we follow the Roman system that requires the concurrence of traditio or delivery along with the title. This is known as the theory of title and mode – Civil Code Article 609 and 1462 et seq. -. The transfer of property is not effected by the mere drawing up of the causal contract, if it is not followed by tradition.

The title is the act by which the will to alienate the right is established. The mode is the act by which the transfer of the legal possession of the thing is made to the acquirer. It is linked to the title on which it is based and gives it its legal basis. It is necessary that both coincide, since there is no transfer of ownership by the simple transfer of possession, if there is no legal transaction suitable for the transfer to serve as a cause for the acquisition. nor by the existence of a simple contract if there is no transfer of legal possession.

An example of a transfer of ownership without transfer of ownership is a lease contract, in which the tenant is put in possession of the rented property – there is tradition or delivery – but ownership is not transferred as the lease contract is not a title suitable for transfer of ownership.

A typical example of the opposite case, the existence of valid title and lack of traditio, is that of the sale of a property concluded by means of a private contract if it is not followed by the delivery of the property to the buyer. As long as this delivery does not take place or the private contract is not raised to a public deed, the seller remains the owner of the property and the buyer only has a compulsory right to the delivery.

Contracts suitable for transferring the domain can be of various kinds. The most general, and typical case is the purchase and sale, but the transfer of the domain can also be done by a dation in payment, or by a contract for life.

The tradition or delivery of the thing can be:

  • effective or real, by the acquirer entering into physical possession of the thing.
  • symbolic.
  • instrumental, by means of the granting of the public deed, which is equivalent to the delivery of the thing that is the object of the contract, if the same deed does not result or is clearly deduced to the contrary. it is the socalled instrumental tradition.

 B.4. Usucapion

Civil Code Article 1940 to 1960

Usucapion -or acquisitive prescription is the acquisition of the domain or other real right possessed by the continuous possession of the same, during the time and with the conditions established by the Law.

Certain capacity requirements must be met in order to purchase by usucapion. In addition, continued possession of a good or right is required.

As far as the requirements are concerned, a distinction must also be made between the various types of usucapion:

  1. Ordinary and extraordinary usucapion. The first is that which takes place in favor of an acquirer of good faith who also has a just title. The second is based solely on possession and requires neither just title nor good faith.
  2. Usucapion of furniture and real estate. The legal regime is different in each case, the most relevant difference being that relating to the time period, which is less in the case of movable and real estate usucapion than in the case of real estate.

 

Capacity

Civil Code Article 1931, 1933 and 1934. Navarra law 361

The following rules are established here:

– Persons capable of acquiring property or rights by other legitimate means may acquire them by prescription. The general rules on capacity to acquire therefore apply, without any special limitation on usucapion.

– The prescription won by a coowner or coproprietor benefits the others, which is a consequence of the general principle governing community of property, according to which any coproprietor may individually exercise rights and actions in defence of the community or for its benefit. It is necessary, however, that the possession of the coowner be exercised in his capacity as a member of the community. Communal property cannot be acquired by usucapion.

– The prescription produces its legal effects for and against the inheritance before it has been accepted and during the time granted for making an inventory and for deliberation. The fact that the inheritance is lying down does not prevent the statute of limitations from applying, so that whatever the situation of the inheritance, it does not affect the usucapion. No coheir, in his capacity as coheir, can be barred from claiming against the others, as long as it is not of a different nature from that of the inheritance.

In Navarre, it is established that the heir is only in possession of the hereditary assets from the moment he takes charge of them, but the time that the deceased possessed is used for the purposes of usucapion. Similarly, the acquirer benefits from the time that the testator has possessed, although the requirements for possession, necessary for the usucapion in question, must be met by the testator and the testator’s successor.

Continued possession

 Civil Code Article 1941

For both ordinary and extraordinary usucapion, the continued possession of the thing or right by the usucapient for a certain period of time is necessary, possession that must be in the concept of owner, public, peaceful and uninterrupted.

Ownership

 Civil Code Article 447

Only possession that is acquired and enjoyed as an owner can serve as a title to acquire the domain. If what is involved is a right other than ownership -for example, easement or usufruct, it is necessary to possess as the owner of such right: easement, usufruct, etc.

Therefore, in order to determine whether or not a possession is owner, one must look at the title or determining cause of the possession and the subsequent manner of exercising it. If the possession began in a different concept from that of owner, the usucapion can only begin from the moment the title has been reversed.

The holder by mere tolerance or by personal title, recognizing the domain in another person, cannot acquire by usucapion.

Public ownership

 Civil Code Article 444

Advertising must refer not only to the fact of possession, but also to the concept of possession. A possession is public when it is not clandestine, that is, when the acts of execution and exercise of possession are not hidden.

Advertising must also refer to the origin of the possession and must be a permanent quality that accompanies it during its course. Acts performed clandestinely do not affect possession.

Possession for usucapir is a fact that must be proven, so that it is accredited that there are clear and concrete acts of physical detention that allow to conclude that the property has been subject to the will of the possessor.

Peaceful possession

 Civil Code Articles 441, 444 and 1942

It is necessary that the de facto power over the thing is not maintained by force. In no case can possession be acquired violently, and acts performed with violence do not affect possession.

With reference to possession with the ability to usurp, it is expressly provided that acts of a possessory nature carried out with violence shall not be used for possession.

Uninterrupted possession

 Civil Code Article 1941 and 1960

For possession to be skillful for usucapion it must be continuous. Two rules are established to facilitate the consideration of possession as continuous:

– the current holder can compute the time needed by linking his to that of his testator. and

– The current holder who was in a previous era is presumed to have continued to be so during the intervening time, unless proved otherwise.

 

Requirements for ordinary usucapion

Civil Code Article 1940

Ordinary usucapion requires the possession of the thing or right with just title and good faith during the time determined by the Law.

Fair title

 Civil Code Article 1950, 1952 to 1954

Fair title is understood to be that which is legally sufficient to transfer the domain or real right whose prescription is involved. Therefore, the usucapient must have acquired it by virtue of a title that can produce that effect – for example, purchase and sale.

In addition, the title for usucapion must be true and valid:

– He is true who has a real existence. Therefore, the putative title, the absolutely simulated one and the false one are excluded.

– It is valid the one that would be enough to transfer the domain if the transferor was the owner.

For the purposes of usucapion, just title must be proven and is never presumed.

Good faith

 Civil Code Article 1950

The good faith of the possessor consists in the belief that the person from whom he received the thing was the owner of it, and could transmit his dominion, which should extend to those cases in which someone transmits real rights over a thing that is not his property.

Good faith is not a state of conduct, but of knowledge. The question of the ethical load of diligence that the third party purchaser must employ is centred primarily on the negative sense that the conceptual extension of good faith presents, that is to say, in the measure or degree of diligence that could have been demanded and which would have allowed the error or ignorance of the situation to be overcome and the existing discordance between the registry information and the Sunday reality in question to be known.

Good faith is compatible, for the purposes of usucapion, with the possible insufficiency or nonexistence of just title, because, although just title and good faith are closely related matters, it is possible that, on the part of the possessor, an error has occurred in the interpretation of the facts or documents.

Deadline

 Civil Code Article 1957 and 1958

Ordinary usucapion on real estate requires the course of:

– 10 years between presents. and

– 20 years between absences.

A person is considered absent if he or she lives abroad or overseas. If part of the time he was absent and part of the time he was present, every 2 years of absence is considered as one year until completing the 10 years of presence. The absence that is not a full and continuous year is not taken into account for the calculation.

 

Requirements for extraordinary usucapion

Civil Code Article 1959

For extraordinary usucapion to take place, possession is only required for the period of time that the Law establishes -which is longer than that of ordinary usucapion, but without the need for just title or good faith.

Ownership and other rights in rem over real property are prescribed for their uninterrupted possession for 30 years, without the need for title or good faith and without distinction between present and absent.

It is therefore not necessary to have a just title or good faith, although possession must have the same characteristics as for ordinary usucapion.

Extraordinary usucapion does not apply to easements, which can only be acquired by virtue of title – Civil Code Article 539 -.

 

Interruption of usucapion

Civil Code Article 1943 to 1948. Law 15/2015 Article 143

Possession may be interrupted, for the purposes of usucapion, naturally or civilly:

  • The natural interruption occurs when for any reason the possession is stopped for more than one year.
  • The civil interruption is produced by the summons made to the possessor, even if it is by order of an incompetent judge, as well as by an act of conciliation, provided that within a period of 2 months from its celebration, the claim for possession or control of the thing in question is presented to the judge.

Finally, any express or tacit acknowledgement by the holder of the owner’s right also interrupts possession and, therefore, usucapion.

The effect of the interruption of possession is that it puts a definitive end to the phenomenon of usucapion, without prejudice to the fact that the possessor may begin to usucapy again.

 

General effects

Usucapion produces the acquisition of the thing or right when the necessary requirements are met.

According to common doctrine, it operates retroactively, from the day the possession began, which has the consequence that the acts of exercise carried out by the user during the intermediate time are considered legitimate and that he makes his own all the fruits perceived during the time of possession, even if it was in bad faith.

Usucapion must be invoked by the person it favours in order to produce its effects in the legal order, without the judge being able to assess it ex officio, and the usucapient must provide proof of the facts constituting usucapion.

The proof of the existence of obstructive or impeding facts of the usucapion is incumbent upon the counterpart – Civil Procedural Act Article 217.3 -.

With regard to the possible extinction of the rights in rem of others constituted by the previous owner, it is established that the rights acquired for a consideration and in good faith that do not imply the power of immediate enjoyment of the right over which it was constituted are not extinguished by the usucapion of the same, without extinguishing either those that imply that power when the enjoyment of the same is not incompatible with the possession cause of the acquisitive prescription – Land Registry Act Article 36 -.

Consequently, a distinction must be made between:

  • Rights in rem that do not require possession, such as a mortgage, should be considered to be subsisting.
  • The rights in rem that determine the possession of the thing compatible with the possession of the usucapient, to which the same solution -subsistence must be applied.
  • The rights in rem that determine a possession of the thing incompatible with the possession of the usucapient, which are extinguished with the usucapion.

 

Effects in relation to the Land Registry

Two different rules are established to regulate the relationship between usucapion and the Land Registry, depending on whether or not the usucapient is a registered owner:

Usucaption in favour of the registered holder

Land Registry Act Article 35

Since registration Under Spanish Law is not, in general, constitutive, it may happen that the registered owner of a right in rem is not the true owner. In this case, the usucapion of the right in rem in favour of the registered owner is admitted and favoured -second tabulation.

For the purposes of the acquisitive prescription in favor of the registered owner, the registration is fair and it is presumed that the possession has been public, peaceful, uninterrupted and in good faith during the entire time of the entry and those of its predecessors from whom it brings cause.

 

Usucaption against the registered holder

Land Registry Act Article 36

A conflict may arise between the registrant and the holder who has usucapied against what is published by the Registry -against tabulation.

In these cases it is established that the registered owner who is a third party mortgage holder – an acquirer in good faith, for a fee, who has the cause of a registered owner and who is registered in the Land Registry – – Land Registry Act Article 34 -, prevails over the usucapient, unless the usucapion is consummated or can be consummated within the year following its acquisition, and one of the following conditions is met:

– It is demonstrated that the acquirer knew or had sufficient rational means and reasons to know, before perfecting his or her acquisition, that the property or right was in fact owned by a person other than the transferor. Good faith is therefore not sufficient, but a duty of care is imposed on the acquirer.

Express or tacit consent is given for the de facto possession of the usucapient during the entire year following its acquisition.

The usucapion begun is also prejudicial to the registered proprietor if he does not interrupt it in the manner and within the time limit indicated, and without prejudice to the fact that he may also interrupt it before its total consummation.

 


  1. Legal actions to protect the domain

C.1. Claiming action

Civil Code Article 348

It is a real action exercisable against any person -erga omnes, which is incumbent upon the owner against the one who possesses the thing unduly.

The requirements for your exercise are as follows:

  1. Actor’s dominance. The actor must rigorously prove his mastery. In principle, he should prove his acquisition title and tradition -if the acquisition was derivative, as well as the ownership of all previous transmitters. To alleviate this burden of proof, proof of continuous possession during the periods required for usucapion is admitted, such as immemorial possession.

In the event that the claimant’s right is registered in the Land Registry, he is exempt from the obligation to prove it – Land Registry Act Article 38.1 -.

  1. Defendant’s possession. The defendant’s possession is required to be current and undue. In the event that the defendant is a holder of a title, case law requires that, previously or jointly, the nullity of the defendant’s title be instigated, with the intervention in the process of all those who were part of its creation. However, this is not necessary when the nullification of the title and the cancellation of the entry are a consequence of the action deduced, since all the intervening parties are in the process, without this implying any inconsistency.
  2. Identification of the thing. A perfect description of the thing that is the object of the claim by the plaintiff is required, so that there is no doubt as to what is being claimed. To this end, the place, situation and boundaries of the property must be established with due precision, and it must be proved that these are the ones referred to in the titles and other means of evidence on which the actors base their right.

If the claim is successful, it results in a sentence against the defendant, who has to return the thing claimed, with the consequent liquidation of the possessed state.

 

C.2 Declaratory domain action

It aims at recognizing the dominance of the actor, in front of whom this right is discussed or attributed. Its purpose is to put an end to a situation of legal uncertainty. it is not intended to condemn the adversary but to declare by means of a judgment the existence of a certain legal relationship that has been questioned or disputed.

The exercise of this action requires the proof of the domain of the actor and the identification of the thing in the same terms as the claiming action, corresponding the passive legitimation to those who deny or answer the right of the actor.

It has no express legal basis, and its construction is eminently jurisprudential.

 

C.3 Legal action in denial  

It is aimed at declaring the nonexistence of liens on the domain, so that it can be exercised against anyone who claims to be the owner of any such rights. The right of ownership is presumed to be free and a limitation, such as a real right of easement, has to be clearly proven.  Therefore, it is up to the plaintiff to prove its domain and up to the defendant to prove the existence of the lien it claims.

As with the action for declaration of ownership, its basis is purely jurisprudential, except in Catalonia, where it is expressly regulated – Civil Code of Catalonia Article 544-4 to 544-7 -:

This is an action attributed to owners or holders of limited rights in rem involving possession to put an end to unlawful disruptions and immissions in their right, other than undue deprivation or retention of possession, as well as to require that no future and foreseeable disruptions of the same kind occur.

In the exercise of legal action in denial, it is not necessary for the actors to prove the illegitimacy of the disturbance.

Legal action in denial  is excluded in the following cases:

– When the disturbances or immissions that are intended to be stopped or future ones that are intended to be avoided do not harm any legitimate interest of the owners in their property.

– When the owners have to bear the disruption by provision of the Civil Code of Catalonia or by legal business.

The action may be exercised while the disturbance is still ongoing, unless, in the case of a usucapable right, the usucapion has been consummated.

The action to claim compensation for the damages produced prescribes after 3 years, starting from the moment the owners become aware of the disturbance.

 

The difference between the legal action in denial  and the confessional action is that the former aims to have the thing declared not subject to a right in rem of the defendant and to have it cease, while the latter is that which corresponds to the owner of the dominant property, holder of the right in rem of easement against the person who has disturbed it, and aims to have the right in rem recognized and the defendant condemned to cease the disturbance.

 

C.4. Suspension of new construction and demolition of ruined buildings

Civil Procedure Act Article 250.1.5 and 6

These are summary actions -traditionally called injunctions directed:

– to stop a work being built when the property of the actor is likely to be damaged – new work injunction. or

– to demolish or knock down a work, building, tree, column or similar object in a state of ruin and which threatens to cause damage to the person who is suing – ruinous work injunction.

Both actions, which are not limited to the protection of the right to property, are carried out through the procedures of oral proceedings.

The prerequisites for a new work injunction are the execution of a material work on the property of the defendant or the plaintiff that has not been completed and that causes damage to the possession of the property right or another real right already produced or potential, there being a causal relationship between the former and the latter.

It has a precautionary purpose consisting of stopping the work so that it does not consume or aggravate the damage. For this reason, the parties are not entitled to resort to a subsequent plenary trial in which both the right that the plaintiff considers to have been infringed and the right of the owner of the work to continue it can be discussed.

With respect to the interdiction of ruinous works, the repealed Civil Procedure Law/1881 Article 1676 established two actions, one to request the total or partial demolition of the work and the other to carry out urgent repairs. Currently, the second action has disappeared as an independent procedure, without prejudice to the fact that it can be requested as a precautionary measure, since the current Civil Procedure Law, Article 250.1.6, only refers to demolition.

The assessment of whether or not the state of ruin is present is based on factual assumptions, to measure which the reports of the technicians in the field must be given the utmost importance, which is why expert evidence is essential.

 

C.5. Delimitation and demarcation of bounderies

Civil Code Articles 384 to 388 and 1965

They aim to achieve the perfect individualization of the estate.

The demarcation consists of setting the limits of the inheritance, so that they are certain and safe.

The boundary marking is the signaling and externalization by means of milestones or landmarks of those limits.

The action of demarcation is imprescriptible. The procedure is a notarial file, for the demarcation of registered properties – Land Registry Act Article 200 -, and a special procedure of voluntary jurisdiction – Law 15/2015 Article 104 s. -, in the case of unregistered properties.

The requirements for exercising the demarcation action are:

– the ownership of a dominion or corresponding title constituting a right in rem or property and related rights in rem.

– that such ownership falls on adjoining properties.

– identification of the farm, as a matter of fact, and confusion of boundaries. and

– that the owner or owners of adjoining properties be cited.

The Spanish Supreme Court has declared as a jurisprudential doctrine that by means of the action of demarcation the physical situation of a property that is located in another greater one can be determined. Since it is not a claiming action, there is no obligation to identify the exact property in the event that the ownership of the property is not disputed. The alternative proposed by the expert is accepted as the location that is most beneficial for all.

Planning development of the property

The right to property in the field of urban planning is a statutory right. Its content is that which derives at all times from the law – in accordance with the social function of land ownership that it establishes – and from urban planning.

Both the State, the Regions and the municipalities have different competences and levels of intervention:

– The State is competent to establish the basic conditions of land ownership that ensure the equal exercise of rights and the fulfilment of duties in relation to the urban property of land – Spanish Constitution Article 149.1.1 -.

– The Regions exercise jurisdiction over urban planning – Spanish Constitution Article 148.1.3 -, although this competence must necessarily be developed in compliance with the laws that the State can approve in the exercise of its powers on matters that, although not strictly urban impact on the field of planning.

– The municipalities have the abstract reservation of intervening in all matters that affect them – LBRLey Article 2 -, which includes urban planning, through the approval of local plans and ordinances, as well as management, implementation and urban discipline, respecting the legislation of the State and the Autonomous Communities.

The diversity of State and Autonomous Community titles in urban and land planning matters makes it necessary to distinguish between Autonomous Community and State legislation, which in turn may be of a full, basic or supplementary nature.

 

State regulation

The state regulations are set out in the revised text of the Land Law – Royal Legislative Decree 7/2015: LS/15-, which constitutes basic legislation and is mandatory in all autonomous communities. Unlike the now repealed LS/98, this is not a town planning law, but a law relating to the land regime and equality in the exercise of the constitutional rights associated with it with regard to the interests whose management is constitutionally entrusted to the State. It must be applied with due respect for the exclusive powers conferred on the Regions with regard to town and country planning and housing and, in particular, public land holdings.

It should also be noted that the Valuation Regulations of the Land Law – Royal Decree 1492/2011 -.

In the absence of autonomous planning regulations, LS/76, the Planning Regulations – Royal Decree 2159/1978 -, the Regulations on Urban Management – Royal Decree 3288/1978 -, the Regulations on Urban Discipline – Royal Decree 2187/1978 -, the Regulations on Reparcelling – D 1006/1966 – and the Regulations on Compulsory Building and Municipal Land Registry – D 635/1964 – are applicable in addition.

There are also various nonurban state regulations that affect this area, among others, Law 38/1999 on building regulations or Royal Decree 1093/1997 on access to the Register of Urban Development Activities.

 

Regional  regulation

The Regions have assumed, through their statutes of autonomy, the competence in urban, land planning and housing matters – as the State Law has no competence in this area.

Some of the most significant Autonomous Community regulations in this area are as follows:

Andalusia

– Law Andalusia 7/2002, on urban planning

– Andalusia Law 13/2005, on measures for protected housing and land

– Law Andalusia 2/1989, on protected natural areas

Aragon    

– Aragon Legislative Decree 1/2014, which approves the rewritten text of the Town Planning Law.

– D Aragón 52/2002, of regulatory norms in the matter of organization, urban planning and special regime of small municipalities

– Aragon Legislative Decree 2/2015, Revised text of territorial planning

– Aragon Legislative Decree 1/2015, Revised text of protected areas

Asturias  

– Legislative Decree Asturias 1/2004, Revised text of the legal provisions in force regarding land use and urban planning

– Law Asturias 5/1991, on protected natural areas

– D Asturias 278/2007, Regulation of land planning and urbanism

Balearic Islands  

– Balearic Islands Law 14/2000, on territorial planning

– Balearic Islands Law 12/2017, on town planning

– Balearic Islands Law 6/1999, on territorial planning guidelines

– Balearic Islands Law 7/2012, on urgent measures for sustainable urban development

Canary Islands    

– Canary Islands Law 4/2017, on land and protected natural areas

– Law 6/2001 of the Canary Islands on urgent measures in the field of territorial planning and tourism

– Canary Islands Law 19/2003, on general planning and tourism guidelines

– Canary Islands Law 2/2003, on housing

– D Canary Islands 183/2018, Planning management and implementation regulation

Cantabria             

– Cantabria Law 2/2001, on territorial planning and land development

– Cantabria Law 4/2006, on nature conservation

Castile-La Mancha           

– Legislative Decree Castilla-La Mancha 1/2010, Revised text of the Law on Land Use Planning and Urban Development

– D Castilla-La Mancha 248/2004, Planning Regulation

– D Castilla-La Mancha 242/2004, Regulation of rustic land

– Castilla-La Mancha Law 9/1999, on nature conservation

Castile and Leon

– Castilla y León Law 5/1999, on town planning

– Law Castilla y León 10/1998, on land use planning

– D Castilla y León 22/2004, Town planning regulations

– Castilla y León Law 4/2015, on natural heritage

– Castilla y León Law 4/2008, on measures concerning town planning and land

Catalonia

– Legislative Decree Catalonia 1/2010, Revised text of the Town Planning Law

– D Catalonia 305/2006, Regulation of the Town Planning Law

– Law Catalonia 12/1985, of natural spaces

Extremadura      

– Extremadura Law 11/2018, on sustainable territorial and urban planning

– D Extremadura 7/2007 Planning Regulation

Galicia     

– Law Galicia 2/2016, of the soil

La Rioja   

– La Rioja Law 5/2006, on land use planning and urban development

– La Rioja Law 4/2003, on the conservation of protected natural areas

Madrid   

– Madrid Law 9/2001, on land

– Madrid Law 9/1995, on land policy measures, land and town planning

Murcia    

– Murcia Law 13/2015, on territorial and urban planning of the Region of Murcia

Navarra  

– DFLeg Navarra 1/2017, Texto Refundido de ordenación del territorio y urbanismo

Basque country  

– Basque Country Law 2/2006, on land and urban planning

Valencian Region             

– Law Valencian Region 5/2014, on land use planning, town planning and landscape

– Law Valencian Region 11/1994, on protected natural areas


D.1.  Urban planning

Planning is the fundamental basis of all urban planning, since it prefigures what in time will be the space considered by it. Since it is impossible for the law to determine the content of the property right for each specific portion of the territory on a casebycase basis, a twophase technique is used, so that the laws establish the main lines of the system and refer to planning as its concretion in space.

By means of urban planning, an initial suitability for the construction of a plot of land is attributed, but this right is only consolidated through the fulfilment of a series of obligations and burdens that are imposed on the owner and that must be fulfilled within the time limits established in the planning itself.

The plans have the character of authentic legal norms of regulatory rank, insofar as they are subordinate to the law from which they originate.

 

General urban development plans

The general plans of urban planning – also called municipal plans or simply general plans – are the decisive piece of the urban system and are characterized by being an instrument of integral planning of the territory, both in its territorial and material aspect:

– In the territorial sense, because they must cover at least a complete municipal area, insofar as they must regulate all aspects of urban planning in their territory, so that their object is neither the urban development of a part of it – as may be a partial plan – nor the solution to a specific problem of the municipality – as may be a special plan for a historicalartistic complex, for example – but rather the planning of the territory as a whole, although with the corresponding nuances depending on the type of land.

– In a material sense, because the general plan must regulate all aspects of urban planning in its territorial area, based primarily on the classification of all its land.

As for its content, it corresponds to the general plan:

– classify the soil for the application of the corresponding legal regime.

– to define the fundamental elements of the general structure adopted for urban planning of the territory.

– establish the programme for its development and implementation. and

– to indicate the time limit to which all of its provisions must be understood to refer, as of which, and according to the degree of compliance with these provisions, they must be revised.

The concreteness of the general plans varies according to the type of soil:

a In the case of urban land, its regulation is detailed, so that it behaves like a detailed plan.

b In the land for development, they are limited to defining the fundamental elements of the general structure of urban planning, establishing a generic regulation of the different global uses and levels of intensity and setting the development programs in the short and medium term.

c On undeveloped land, it establishes the appropriate measures and conditions for the conservation of its natural elements.

 

Complementary and Subsidiary Planning Standards

Its function is to complete, when they exist, the determinations of the general plans of arrangement and to replace the absence of these, providing a minimum of arrangement on classification and use of the land, urbanization and building.

In general, they are of a provisional nature, although their duration is indefinite, so their arrangement is comparable to that of the general plan.

The purpose of the supplementary rules is to regulate aspects not provided for in the general plan which they supplement or develop points not provided for in the general plan.

The subsidiary rules have an essentially supplementary purpose with respect to the general plan. They define the detailed planning of the municipalities without such planning and, in turn, have a legitimizing effect on the general plan with respect to the approval of other urban planning instruments, such as partial plans.

 

Urban land delimitation projects

The project of delimitation of urban land is not integrated within the urban planning in the strict sense. It is not a plan, but the documentary expression of the result of applying the legal classification criteria to a specific physical reality.  Its sole purpose is to delimit the land that has become urban by fulfilling the legal requirements.

For this reason, it is not similar in nature to other planning instruments – specifically, the general one – since it does not try to regulate what should be classified as urban, but rather what, because the legally established conditions are met, is urban land, verifying a mere formal demarcation of that land.

 

Urban development action programmes and sectorisation plans

The general plans sometimes leave part of the land for development unregulated, deferring at a later date its specific planning in order to adapt it to new needs.

This function is carried out by the urban development action programmes and, where appropriate, by the sectorisation plans, which

– develop the systems of the general management structure.

– indicate uses and levels of intensity with expression of the type of use.

– map out the fundamental networks of the various services. and

– divide the territory into sectors for the development of the programme in successive stages.

 

Partial plans

Its function is to regulate in a detailed way the use and exploitation of the land for development. Their purpose is:

– In the land classified as scheduled for development, develop the general plan through the detailed and complete planning of a part of its territorial area.

– In nonprogrammed land for development, the development of urban action programs.

– The development of complementary and subsidiary planning standards, where appropriate.

When developing the general plan, partial plans are to be drawn up for the management of entire sectors defined in the general plan, so that each partial plan targets a sector determined by the general plan.

The partial plans that develop the determinations of the programs of urban development action must include the complete territory affected to each stage of execution of this program, or the totality of the land included in the program, if only one stage has been foreseen.

 

Special Plans

Its purpose is not the integral management of a certain spatial area in all its aspects, but rather that of only one of these, whether it be the management of enclosures and artistic ensembles, or an operation of internal reform, or the protection of the landscape and roads, or the conservation of the rural environment in certain places.

 

Detailed studies

It is an instrument of urban planning that aims, if necessary, to complete or adapt the determinations of the general planning – general plan, complementary and subsidiary rules of the planning or projects of urban land delimitation, as appropriate – or of the special plans for:

– establish or adapt alignments and flush.

– rearrange the volumes. and

– complete, if necessary, the communications network.


 D.2. Soil types

The Soil Act 2015 has dispensed with the classification of land, as the laws preceding it had done and continue to do today in the various autonomous communities. It merely distinguishes two basic situations in which all land can be found, depending on whether or not it has been transformed:

  • rural land situation.
  • situation of urbanized land.

The inclusion of a soil in one of these two situations depends exclusively on its actual state at any given time, either in the rural environment or in the urban environment, with all the soil necessarily being in one of them.

Notwithstanding the above, the classification of the land continues to be applicable in accordance with the provisions of the regional laws that define the classes of urban, developable and undevelopable land, assuming the vast majority of the criteria maintained by the repealed LS/98. Given the influence of the LS/98 on the current laws of the autonomous communities, the reference to the classification of the land must refer to that established by said law, to which we refer for this reason, despite being repealed.

 

Urbanized land

Soil Act 2015 Article 21.3

The land integrated in an urban network made up of a network of roads, facilities and plots of land belonging to the town or settlement of which it is part is in a situation of urbanized land, provided that it meets one of the following conditions

a To have been urbanized in execution of the corresponding management instrument.

b To have installed and operated, in accordance with the provisions of applicable urban legislation, the necessary infrastructure and services, through their connection to the network, to meet the demand for existing uses and buildings or planned by the urban planning or be able to have them without other works that the connection with the existing facilities. The fact that the land is adjacent to ring roads or intercity communication routes does not in itself mean that it is considered to be developed land.

c To be occupied by the building, in the percentage of the spaces suitable for it as determined by the legislation of territorial or urban planning, according to the arrangement proposed by the corresponding planning instrument.

Also included in the situation of urbanized land is that included in the traditional rural nuclei legally established in the rural environment, provided that the legislation on land use and urban planning gives them the status of urban land or assimilated and when, in accordance with it, have the equipment, infrastructure and services required for this purpose.

 

Rural land

Soil Act 2015 Article 21.2

The land preserved by the territorial and urban planning of its transformation through urbanization is in a rural land situation. It must include at least the land excluded from such transformation by the legislation of protection or police of the public domain, nature or cultural heritage, which should be subject to such protection under the land and urban planning by the values in them concurrent and as many others provided for in legislation or urban planning.

Land for which the instruments of territorial and urban planning foresee or allow its passage to the situation of urbanized land is also in a situation of rural land, until the corresponding urbanization action is completed.

 

Urban soil

LS/98 Article 8.a and 14.1

Land with the following basic urban services is considered to be urban land

  • wheeled access.
  • water supply.
  • drainage of water. and
  • power supply.

The same applies to land that is included in areas consolidated by the building in the form and with the characteristics established by urban legislation.

In turn, within urban land, two different categories are distinguished, depending on whether or not there is a consolidated development:

– Land consolidated by the urbanization, in which the owners have the duty to complete at their own expense the necessary urbanization so that their land reaches, if they do not already have it, the condition of a plot, although they are not obliged to make any cession.

– Urban land not consolidated by the urbanization.

 

Undeveloped land

LS/98 Article 9 and 20

The condition of undeveloped land -called rustic land in some autonomous communities is the land where any of the following circumstances occur:

  1. a. Be subject to some special protection regime incompatible with its transformation in accordance with the plans of territorial planning or sectoral legislation, because of its landscape values, historical, archaeological, scientific, environmental or cultural, natural risks accredited in the sectoral planning, or according to their subject to limitations or easements for the protection of public domain.
  2. b. That it is considered necessary to preserve them because of the values referred to in the previous point, because of their agricultural, forestry or livestock value or because of their natural wealth, as well as those others that are considered unsuitable for urban development, either because of the imperative of the principle of rational use of natural resources, or in accordance with objective criteria of a territorial or urban nature, established by urban planning regulations.

In turn, within the undeveloped land, two different categories are distinguished:

Specially protected soil, which is subject to special protection by the general plan.

Common or simple undeveloped land is that which does not deserve special protection, although it is preserved in any case, from the process of urban development.

 

Land for development

LS/98 Article 10, 15 and 18

All land that does not have the condition of urban or undeveloped land is considered to be developable land.

According to the repealed LS/98 the land for development was therefore residual, so that all the land in the municipality that had not been expressly classified as urban land or not for development would automatically be defined as land for development.

In turn, within the land for development, there are two different categories:

Delimited or sectored land for development, likely to be immediately or soon to be transformed.

Undelimited or sectorized land for development, without conditions for its development established by the general planning, for which it is necessary to promote the delimitation of a sector and the approval of the corresponding sectorization plan.

The transition from rural to urban land should be possible only for the land «required» to meet the needs that justify it, in order to prevent speculation and to preserve the rest of the rural land from urbanisation – Soil Act 2015 Article 20.1.a –

 

D.3.  Rights and duties of the owners

The urban planning regime of land ownership is statutory and results from its link to specific destinations in the terms provided by the legislation on land and urban planning. The Soil Act 2015 explains the powers and duties of the owner of the land without prejudice to the complements of the regional planning laws.

 

Powers and Rights

Soil Act 2015 Article 12 s.

Generically, the soil domain comprises two species of faculties – Soil Act 2015 Article 12 -:

  1. a. Those of use, enjoyment and exploitation of the same according to the state, classification, objective characteristics and destination that it has at each moment, in accordance with the applicable legislation due to the characteristics and situation of the property.
  2. b. Those of disposition, provided that their exercise does not infringe the regime of formation of estates and plots and of the relationship between them.

The above faculties include:

  • to carry out installations, constructions and, where appropriate, buildings, when the legislation of territorial and urban planning allows it and under the conditions established by it.
  • to build on the unit suitable for this purpose, and to carry out the necessary actions to maintain the building in a good state of conservation.

The Soil Act 2015 has excluded from the content of the land ownership right the power to develop without prejudice to the peculiarities or exceptions that the planning legislation of the autonomous communities may provide. Therefore, the owners are not – without prejudice to the preference that may be assigned by the autonomous law – owners of the right to develop, which corresponds by law to the owner of the initiative to promote the urban transformation of the land.

Specifically, the owners have the following powers:

  1. The owner of rural land – Soil Act 2015 Article 13 -:

– Those of using, enjoying and disposing of the land, in accordance with its nature, and must be devoted, within the limits provided for by law and by territorial and urban planning, to agricultural, livestock, forestry, hunting or any other use linked to the rational use of natural resources.

– By way of exception and in accordance with the procedure and conditions laid down in town and country planning legislation, specific acts and uses which are in the public or social interest, which contribute to rural planning and development, or which are to be located in the rural environment, may be legitimised.

  1. b. The owner of developed land Soil Act 2015 Article 14 :

– To complete the urbanization of the land so that it meets the requirements and conditions established for its construction.

– To build within the deadlines established in the applicable regulations and to carry out the necessary actions to maintain the building in a good state of conservation at all times.

– To participate in the execution of reform or renovation actions of the urbanization, or of endowment in a regime of fair distribution of benefits and burdens, when appropriate, or of distribution, among all those affected, of the costs derived from the execution and of the benefits attributable to it.

– Obtain, where appropriate, the corresponding administrative approval or authorization to carry out any of the actions on the urban environment.

 

The use of land with environmental, cultural, historical, archaeological, scientific and landscape values that are the object of protection by the applicable legislation is always subject to the preservation of such values, and only includes acts of alteration of the natural state of the land that that legislation expressly authorizes.

 

Duties and burdens

Soil Act 2015 Article 15

As a general rule, the right of ownership of land, whatever its situation, includes the following duties:

– Duty to devote the land to uses that are compatible with land and urban planning.

– Duty to preserve the soil in the legal conditions to support such use and, in any case, in the legally required safety, health, universal accessibility and ornamentation.

– Duty to carry out additional works for tourist or cultural reasons, or for the improvement of the quality and sustainability of the urban environment, to the extent of the legal duty of conservation.

– Duty to carry out improvement and rehabilitation work to the extent of the legal duty of conservation.

The competent Administration is empowered to, at any time, but always in accordance with the legislation on territorial and urban planning, impose compliance by order in which the works to be carried out must be specified.

On rural land or vacant building land, the duty to preserve it entails paying for and carrying out the works necessary to keep the land in a condition to avoid risks of erosion, fire, flooding, damage or harm to third parties or the general interest, including the environment. to guarantee public safety or health. to prevent the pollution of the soil, water or air and undue contaminating immissions in other assets and, where appropriate, to recover them. and to ensure the establishment and operation of the services deriving from the uses and activities carried out on the land – Soil Act 2015 Article 16 -.

Specifically, specific duties are established for both rural and urban land owners:

  1. a. In rural land, the owner has the duty to satisfy the patrimonial benefits established, where appropriate, by the legislation on territorial and urban planning, to legitimize the private uses of the land not linked to its primary exploitation, as well as to pay for the infrastructure connecting the facilities and constructions that are authorized with the general service networks.
  2. b. In rural land included in the scope of an action of urban transformation, the exercise of the right to participate in the implementation of the action of urban transformation involves assuming as a real burden the participation in the duties of the promotion in a regime of equitable distribution of benefits and burdens.
  3. c. In urbanized land, the duty of use means completing the development of the land with the requirements and conditions established for its construction.

 

D.4.  Actions of urban transformation

In accordance with the Soil Act 2015 there are two types of urban transformation actions:

Urbanization actions, which in turn, can be of two types: – new development actions, which involve the changeover from rural to urban land, and – urban renewal actions.

Endowment actions, which involve increasing public allocations of a developed land area due to greater buildability, density or new uses assigned by the development.

 

Duties of promoting urban transformation

Soil Act 2015 Article 18

The duties of promoting urban transformation are practically the same as the duties of land owners established by the now repealed LS/98. These duties are:

a Hand over to the competent Administration the land reserved for roads, open spaces, green areas and other public facilities included or assigned to the action.

b To deliver to the Administration the land free of charges corresponding to the percentage of the weighted average buildability of the action – or of its increase -, or of the superior scope of reference, that the regulatory legislation of the ordination establishes. The percentage, with exceptions, cannot be less than 5% or more than 15%.

c Costing and, if necessary, executing all the urbanization works, as well as the connection, expansion and reinforcement infrastructures.

d To deliver to the Administration the works and infrastructures that should be part of the public domain.

 

D.5.  Equidistribution and reparcelling

General planning, by assigning each surface a certain urban condition – residential use, industrial use, green area, etc. -, establishes differences between lands that previously had the same condition. In order to correct this inequality of treatment, the laws contain certain mechanisms that allow benefits and burdens to be shared proportionally among all owners who, in the end, will be placed on an equal footing. These are the mechanisms of equidistribution.

To carry out the equalization, the Law provides, in general, some assessment criteria, applicable to the procedures of equidistribution in the absence of agreement among the owners, in accordance with the provisions of the urban legislation of each autonomous community.

 

Equidistribution techniques

The instruments of equidistribution that have been used by the urban legislation are the techniques of the average use and the standard use. The former was provided for in the LS/76, while the latter was incorporated into our legislation with Law 8/1990, later integrated into the LS/92.

The technique of standard use provided for in the LS/92 was declared unconstitutional,  as it was considered that its regulation could not be redirected under the competence of the State to establish the basic conditions of the statute of real estate property – Spanish Constitution Article 149.1.1 -. Consequently, Soil Act 2015 avoids adopting the term aprovechamiento, using the term weighted average buildability to refer to what has traditionally been called aprovechamiento tipo.

However, after that ruling, the Regions assumed, without exception, the legal principles of this technique of equidistribution, sometimes integrating the very literal tenor of the state regulations.

Therefore, it can be said that the regional planning regulations have maintained the validity of the techniques of the area of distribution and of the standard use, despite the varied names they have received and the differences in nuances that are detected in various regional regulations, except in the area of consolidated urban land.

The main differences between both techniques of equidistribution are the following:

– While the average use is not applicable to urban land, the standard use is applicable to this type of land.

– The average use is expressed in abstract units of use, weighted by area and sector coefficients. The standard use is expressed in the characteristic use and typology resulting from the urban planning -buildable square meters, using weighting coefficients of each use and typology for the purpose of equidistribution.

 

Type of use

The standard use of the physical area known as the distribution area is obtained by dividing the total profitable use, expressed in square meters of buildable area of use and characteristic building typology, by the total surface of the distribution area – excluding the land affected by already existing public allocations -, always in relation to the use defined as characteristic, that is, with the predominant use in the area according to the corresponding arrangement.

The area of distribution is the physical area formed by those lands subject to the planning of the same type of use, so that the fewer areas of distribution a general planning instrument provides, the greater the equidistribution will be.

The materialization of this previously equalized content is carried out by placing on the land the use that corresponds to each owner, an operation that is called reparcelization.

Currently, the legislative landscape in the Regions is as follows:

a In some communities, the techniques of type and area use are integrated, maintaining their original denomination. This is the case in CastillaLa Mancha, Galicia,  Navarra and  Comunidad Valenciana.

b In others, on the other hand, the term «average utilization« is used to cover precisely the technique of standard utilization in its entirety. This circumstance occurs in Andalusia, Asturias, Canary Islands, Cantabria, Castilla y León, Extremadura and La Rioja.

In all these cases, the average use is applicable to urban land and is defined in reference to the characteristic use, so that, in essence, can be identified with the technique of use type regulated in state regulations.

c In the Balearic Islands no rules are established to determine the buildability or use. the concept of weighted average buildability and urban use of the sector is used.

d In Catalonia, the denominations of type or medium use are not used, but similar effects are achieved by establishing that the weighting of the urban development use in a field of urban planning action or urban development, whether they are sectors of urban planning or urban action parks, must comply with the following rules:

– If the scope of action includes several zones, the homogenised relative value of each zone must be established.

– The homogenized values must express the intensity of the uses, the rigidity to the demand of each one of the uses, its location and the admissible repercussion of the value of the urbanization or, in its case, reurbanization.

e In Murcia something similar happens to what has been pointed out for Catalonia, since its urban development regulations speak simply of urban use, without establishing any formula for its determination.

f The Community of Madrid uses the denomination of unitary use of distribution, which is the reference for the equidistribution of all the execution actions included in that area and whose value is the quotient of dividing the sum of the total urban development uses of all the sectors by the total surface of the distribution area.

g In the Basque Country, the references in previous legislation to the type and environment have been equated to the average urban development buildability.

 

Equidistribution project

Royal Decree 3288/1978 Article 72.1

The equal distribution of benefits and burdens is materialized through what has traditionally been called reparcelization, which is technically defined as the grouping of all the properties included in a polygon or unit of action for its new division adjusted to the plan, with the allocation of the resulting plots:

– the owners of the primitive plots, in proportion to their respective rights. and

– to the competent administration, in the part that corresponds to the Land Law and the plan.

The material operation of reparcelling is documented through the corresponding equidistribution project that usually takes the name of

compensation project, when acting through the compensation system.

reparcelization project, when implemented within the scope of the cooperation system.

The techniques of the type and area of distribution serve to carry out the equidistribution of benefits and burdens, but it is the equidistribution project that concretes and details the scope of the equidistribution.

The Regions have maintained the general lines of regulation of the projects of equidistribution foreseen in the state regulations. The most generalized tendency is to unify the denomination of the different Types of projects of equidistribution defined by the state regulation, so that the project of equidistribution, or denomination that is adopted, once the common trunk is defined, varies of contents and procedure of approval according to the system of action in which we are.

– Other Regions like Andalusia, Aragon, Catalonia, Madrid y Navarra have established the reparcelization project as a unique instrument of equidistribution, fixing specific contents for each system of action

 

Competence

Royal Decree 3288/1978 Article 106 to 110

The initiative for its elaboration corresponds to the public administration as well as to individuals.

Its initial and final approval is the responsibility of the municipality, after the corresponding public information, regardless of who prepared it.

Phases

Whatever the name used, these equidistribution projects are characterized by the definition of two phases:

a One prior to the planning execution itself, in which what is relevant is the distribution of existing property or property contributed to the equidistribution.

b A second phase in which the standard use is attributed to each of the original properties and the final location of the resulting plot or the economic equivalent that replaces it is specified, if it is finally impossible to locate urban uses on land.

Content

Royal Decree 3288/1978 Article 82.

The typical content of an equidistribution project consists of the following documents:

– memory.

– list of owners and interested parties, with an expression of the nature and amount of their right.

– proposal for the award of the resulting properties, with an expression of the urban development that corresponds to each one and the nominal designation of the awarded ones.

– assessment of the rights, buildings or constructions to be extinguished or destroyed for the execution of the plan.

– interim settlement account. and

– plans, including the overlapping of the information and awarding ones.

 

Effects

Royal Decree 3288/1978 Article 122 to 126

The following real legal effects of equidistribution projects can be identified:

– The subrogation, with full real effectiveness, of the old ones for the new plots, provided that the correspondence between them is clearly established.

– The transfer of rights to the municipality in which it operates, in full ownership and free of charges, of all land that is compulsory to transfer.

– The allocation of the resulting properties, on a real basis, to the payment of the balance of the approved project settlement account assigned to each one.

 

D.6.  Right to build

Soil Act 2015 Article 12 and 15

 

Building is the final goal of the urban development process, configured not only as a right of the owners, but also as a duty, to the point that the acquisition of the capital gains generated by the development process is made dependent on its fulfilment. The Soil Act 2015 lists among the duties of the owners of the developed land to build within the time limits established in the applicable regulations.

The building activity is subject to a prior control by the Administration, which must check that it complies with the applicable standards. This control is based on the imposition of the duty to apply for the corresponding licence. The administration does not have discretionary power to grant it, since it cannot grant the building permit if the project does not comply with the Law, the plan or the regulations, nor can it refuse it if it does comply.

All acts of building and land use, such as earthworks, new construction, modification of the structure or external appearance of existing buildings, first use of buildings and modification of their use, demolition, etc., require a prior municipal licence.

The competence to grant licenses corresponds to local entities, and within these, generally to the mayor, although the urban legislation foresees that in special cases the competence is attributed to a supramunicipal authority, as is the case with construction on undeveloped or developable land that lacks development planning.

 

 

  1. Community of assets

Community of assets is given when the same good belongs simultaneously to several persons -communers, that is, when all of them are holders -coowners of the property right over it. Community property is also called condominium or coownership.

The community can fall under any type of rights, whether they are compulsory – for example, coownership of a lease – or real – for example, coownership of a usufruct.

Traditionally, two main forms of community have been distinguished:

– The socalled Germanic or common hand, in which the assets are considered to belong collectively to all the communal members, without quotas being attributed to each of them, so that it is not possible, in principle, to ask for division. In general, it is understood that the community of property and the hereditary community are of this species.

– The Roman community or by quotas, in which each member has the right to a part, not a specific one, which allows each one to alienate his part or to request the division of the common good.

The Civil Code allows the parties to establish the regulation of the community, by virtue of the principle of autonomy of will, and provides that, in the absence of such conventional regulation, the rules regulated in the Code itself – Civil Code Article 392 – apply. These rules actually establish a community regime by quotas.

 

Use of the common good

Civil Code Article 394 and 398

The Civil Code allows the simultaneous, but reciprocally limited, use of the commoners: each of them can use the common things, provided they have them:

– according to their destiny.

– so that they do not harm the interest of the community.

– does not prevent the rest of the coproprietors from using them according to their rights.

The co-proprietors can establish the rules of use they consider appropriate. In this respect, it is established that for the best enjoyment of the common thing the agreements of the majority of the participants are obligatory.

Administration of the common good

Civil Code Articles 393, 395, 397 and 398

The acts of administration are those that tend to the conservation, enjoyment and use of the thing. They are subject to the regime of majority participation – quotas – and the agreements adopted in this way are considered obligatory. For this purpose, until proven otherwise, all quotas are presumed to be equal.

If a majority is not obtained, or if the agreement is seriously prejudicial to those interested in the common thing, any of the participants can go to court to decide what is appropriate, including by requesting the appointment of an administrator.

Maintenance and conservation work carried out for the common good should be subject to this regime. In the case of works involving an alteration of the common thing, the majority is not sufficient, but the unanimous agreement of the coowners is necessary, since none of them may, without the consent of the others, make alterations to the common thing, even though such alterations may be to the advantage of all – Civil Code Article 397.

The contribution of each member to the charges and expenses generated by the common good must be in proportion to his respective share. In this sense, any of the coproprietors may oblige the others to contribute to the costs of preserving the common thing. This obligation can only be waived by the party renouncing his share in the ownership.

Similarly, the share of the profits it generates must also be proportional.

 

Provision on the common good

Civil Code Article 397

Acts of disposition are those aimed at the alienation of the common good or at constituting rights in rem or encumbrances on it.

While for the adoption of acts of administration the majority agreement of the communal farmers is sufficient, for the implementation of acts of disposition unanimity is required. This can be inferred from the precept that none of the coproprietors may, without the consent of the others, make alterations to the common property.

 

Quota provision

Civil Code Article 399

As far as the part corresponding to each member is concerned, each one can freely dispose of it, assign it or mortgage it.

 

Retraction of community members

 Civil Code Article 1522 and 1524

In the event that any of the coproprietors’ shares are sold, the remaining coproprietors have the right of withdrawal.

When two or more members of the community want to use the withdrawal, they can only do so on a pro rata basis of the portion they have in the common thing.

The deadline for the exercise of the right is 9 days from the registration of the sale in the Land Registry.

A presumption iuris et de jure of knowledge of the sale by the purchaser is established from the date of registration, so that, in principle, the period is counted from the day following registration. However, if the seller knew of the sale in detail before that date, the period shall be calculated on the basis of that knowledge.

 

Community representation

The community of property has no legal personality of its own.

However, it is understood that any of the participants may appear in court in matters that affect the rights of the community, either to exercise them or to defend them, in which case the sentence handed down in their favour takes advantage of the other community members, without prejudicing the adverse or contrary one. In order for this legal standing to be recognised, it is essential that the claim made in the name of the plaintiff alone must necessarily benefit the community of which he is a member.

 

Community extinction

Civil Code Articles 395 and 404

The community becomes extinct because of the following causes:

– By extinction of property – for example, destruction of the common good.

– For the gathering of all the dues in one person – whether it is a commune or a stranger who buys them.

– For the division of the common good. This last cause is dealt with in detail in the Civil Code.

 

Division of the common good

 Civil Code Article 400 to 406

Any member of the community may at any time request the division of the common good, which may be carried out in a manner agreed upon by the members or by any of them exercising the action of division.

There are two exceptions to this general rule:

– that the indivisibility of the common good has been agreed upon for a fixed period of time, which may be up to 10 years, extendable by a new agreement.

– the division of the common property makes it unusable for its intended use, in which case it can only be awarded to one of the coproprietors or sold to a third party.

The division aims at the cessation of the community situation, giving rise to one of the following assumptions:

– the distribution of the property – or the assets that constitute a patrimony – among the communal owners, attributing to each one the full and separate ownership of a part.

– the awarding of the property to one of the communal owners, with compensation to the others.

– the sale of the property and the distribution among the communal farmers of the price obtained for it.

There are three ways of indivisibility: physical indivisibility, uselessness and undesirability, being a concept of value that can be deduced from some facts. The indivisibility can result from the fact that the thing, in case of division, remains unusable for the use to which it is destined, or because it produces an abnormal unworthiness, or because it causes a considerable expense.

The division is governed by the following rules:

a The division of the common thing can be done by the interested parties, or by arbitrators or friendly composers appointed at the will of the participants. In the latter case, they must form parties in proportion to the right of each one, avoiding as far as possible any supplements to cash.

b If it is a building whose characteristics allow it, at the request of any of the coowners, the division can be carried out through the allocation of independent flats or premises, with their common elements attached, thus constituting a horizontal property regime.

c The division must not prejudice third parties, who retain the rights in rem -for example, mortgage, easements or obligations -for example, lease that they had on the thing.

d The creditors or assignees of the participants may agree to the division of the common property and oppose the division without their agreement, but they may not contest the completed division, except in the event of fraud, or in the event that it has been carried out despite their formal opposition to prevent it, and always with the exception of the rights of the debtor or the assignor to maintain its validity.

e The rules concerning the division of the community are applicable to the division of the inheritance – Civil Code Article 1051 to 1087 -.

 

The Usufruct

The usufruct gives the right to enjoy the property of others with the obligation to preserve its form and substance, unless the title of its constitution or the law authorizes otherwise – Civil Code Article 467 -. Therefore, usufruct can be defined as the real right to fully enjoy something belonging to another, without altering its form.

The following are characteristics of the usufruct:

– It is a real right, characterized by the notes of:

– Immediacy: you exercise directly and immediately on the thing.

– absoluteness: the usufructuary is protected erga omnes.

– reipersecution: taxes the property regardless of who owns it.

– It falls on someone elses property, which implies the recognition that the property belongs to someone else.

– It is a limited right, so it does not give its owner the same powers as the domain. The powers of the usufructuary are subject both to time limits – since it is normally for life – and to material limits – since it has to preserve the form and substance of the thing.

– It is restrictive of the domain, as it compresses, while it lasts, the powers that normally correspond to the owner.

 

The usufructuary and the knot owner are the subjects of the usufruct. The usufruct can be constituted in favour of one or several persons, in the latter case, the appeals can be made successively or simultaneously.

The usufruct can be constituted on both movable and immovable things, as long as they are within the trade and are susceptible to appropriation and enjoyment. It is also permissible for it to fall on intangible assets, insofar as they may be the subject of a special property right – for example, an intellectual work – as well as on receivables.

The usufruct can be on the whole of a thing, on a part of it or on a quota.

The Civil Code of Catalonia – Civil Code of Catalonia Article 561-11, 561-25 to 561-37 – regulates the usufruct in situations of coownership, providing that the nodes owning a quota of a property in condominium can carry out its division without the consent of the usufructuaries. They must, however, notify the latter of the division and the usufructuaries have the right to contest it if they believe that it harms their interests. Once the community has been extinguished by division, the usufruct takes shape on the part allocated to the former quota holder.

As special forms of usufruct, the Civil Code of Catalonia regulates the usufruct of forests and plants and the usufruct of money and shares in investment funds and other collective investment instruments.

In Navarre, it is established that usufruct may be constituted over all kinds of assets, even if they do not produce fruit, and over all or part of a patrimony – Compilation Navarre law 410 -.

 

  1.  Constitution

Civil Code Article 468 and 472

The usufruct can be constituted in the following ways:

  1. a. Under a legal provision. Currently the only case of legal usufruct at state level is that recognized in favor of the widowed spouse – Civil Code Article 834 s. -.
  2. b. By legal transaction, which in turn can be constituted by cause of death – by testamentary suffrage – or between living persons, either free of charge or for a fee. In turn, the constitution between the living can be done:

– by way of sale: when the constituent grants the right of usufruct to the purchaser and retains ownership. or

– by way of retention, drawdown or reservation: when the constituent disposes of the property and reserves the usufruct.

  1. c. By usucapion. The general rules on prescription apply, so that the time required for usucapion depends on whether the object of usufruct is movable or immovable and whether the usucapion is ordinary or extraordinary. Possession must consist of having the thing as usufruct.

Capacity

– Civil Code Articles 469 and 515 –

No special skills are required to acquire the usufruct. However, if the holder is a legal entity, the maximum duration of the usufruct is 30 years. If the legal entity ceases to exist before that date, the usufruct also ceases to exist.

The right of usufruct requires the right to dispose of the object of usufruct.

 

Simultaneous use

Civil Code Article 521

If the usufruct has been constituted simultaneously in favour of several persons, the following rules apply:

– The usufruct is governed by the rules of community property – Civil Code Article 392 s. -.

– The extinction of the usufruct constituted in favour of several persons alive at the time of its constitution occurs with the death of the last one to survive.

– In the case of testamentary usufruct, the right to accrue among the usufructuaries is regulated under the terms established for heirs – Civil Code Article 987 and 982.1 -: the right to accrue occurs when two or more persons are called to the same inheritance or portion thereof without special designation of parties and one of those called dies before the testator or renounces the inheritance or is unable to receive it.

– If the usufruct has been constituted by donation, no right to accrue is given unless the donor wishes otherwise. An exception is made in the case where the donation has been made jointly to a husband and wife, in which case there is a right to accrue, unless the donor has stipulated otherwise – Civil Code Article 637 -.

 

Successive use

Civil Code Article 781 and 787

It takes place when the usufruct is constituted in favour of several persons who follow one another in time. In this case there is not one single usufruct, but several, each of which begins when the previous one ends.

If the title of constitution is testamentary and several persons are called in succession, the usufruct only takes effect if it does not go beyond the second degree or if it is made in favour of persons who are living at the time of the death of the testator.

 


  1. Obligations of the usufructuary

The rights and obligations of the usufructuary are those determined by the title constituting the usufruct and, failing that, those established in the Civil Code, which we set out in the following sections.

A distinction can be made between obligations prior to the constitution of the usufruct, simultaneous to it, and final obligations.

 

Obligations prior to the constitution of the usufruct

Civil Code Article 491 to 493

They’re next:

  1. a. Take inventory. In order to protect the interests of the person who is to receive the thing when the usufruct expires, the obligation to form an inventory and to provide security is imposed on the usufructuary. The inventory is to be carried out with a summons from the owner or his legitimate representative, having the furniture appraised and the property described. As no specific form is required, it can be done in a public or private document.
  2. b. Make bail. Its purpose is to ensure that the obligations of the usufructuary are fulfilled. The deposit may be personal or real and, in any case, must be sufficient to ensure compliance with such obligations. The seller or donor who has reserved the usufruct of the assets sold or donated and the widowed spouse are exempted from the obligation to provide a guarantee in respect of the usufruct share granted to them by the law, unless they marry later.

Both the obligation to make an inventory and the obligation to provide a guarantee may be waived, regardless of the type of usufruct, provided that this is not to the detriment of anyone. Dispensation may be granted either by the naked owner or by the judicial authority at the request of the usufructuary. A dispensation made by the testator in his will is also possible. For a dispensation to occur, an express pronouncement is required.

 

Noncompliance

 Civil Code Article 494 to 496

In the event that the usufructuary fails to comply with the obligation to form an inventory or to provide security, the following consequences are established:

– The naked owner may deprive the usufructuary of the possession of the property, and may require that the property be placed under administration, that the furniture be sold, that the public bills or bearer or registered debt securities be converted into public debt entries or deposited in banks or public establishments, and that the capital or cash sums and the disposal price of the property be invested in secure securities. The interest and the proceeds of the property placed under management belong to the usufructuary.

– The naked owner may also retain the assets as administrator, with the obligation to deliver to the usufructuary its liquid product, deducting the amount agreed upon or indicated by the administration.

– In the case of movable property, the owner who does not want it to be sold because of its artistic merit or because it has an affectionate price can demand that it be handed over, guaranteeing payment of the legal interest on its appraised value.

– However, the usufructuary is allowed, even if he has not given a deposit and under simple oath, to request that the furniture necessary for his use be delivered, that he be assigned a room for himself and his family in a house integrated in the usufruct, and the instruments, tools and other personal property necessary for the industry in which he is engaged, the judge deciding in view of the specific circumstances of the case.

– Once the security has been provided, the usufructuary is entitled to receive all the proceeds from the day on which, according to the title of the usufruct, he should have begun to receive them, which means that fulfilment of the obligation to provide security has retroactive effect.

 

Obligations while in possession of the assets

Civil Code Articles 467, 481, 497, 500 to 502, 504, 505, 511, 512 and 520

The usufructuary is obliged to:

  1. a. To preserve the form and substance of the thing, unless otherwise authorized by law or by the constituent instrument.
  2. b. Bring the following facts to the attention of the owner:

– The need to make urgent repairs at the owner’s expense.

– Any act by a third party of which you become aware, which is capable of infringing on property rights. If you fail to do so, you must be liable for damages as if they had been caused by your fault.

  1. c. Take care of the usufructuary assets like a good father of a family. If, by fulfilling this obligation, the property naturally deteriorates through use, the knotty owner cannot claim anything from the usufructuary. If, on the other hand, this obligation is not fulfilled and considerable damage is caused to the owner, he can ask for the thing to be handed over, obliging himself to pay the usufructuary annually the liquid product of the same, after deducting the expenses and the prize assigned to him for its administration. In any case, the usufructuary is liable to the joint owner for any damage suffered by the things subject to the usufruct, whether through fraud or negligence.
  2. d. To carry out the ordinary repairs of the thing, being able the owner to require him to fulfill this obligation, and if he does not attend the requirement, to do it himself at the expense of the usufructuary. The usufructuary must pay the interest on the amounts that the owner has paid to make repairs or to pay the owner’s contributions. Extraordinary repairs are for the account of the knotty owner, and the usufructuary must give notice when the need for repairs is urgent.
  3. e. To pay the annual charges and contributions and those considered as taxes on the fruits. It corresponds to the node owner the payment of those that are imposed directly on the capital.
  4. f. To pay the expenses, costs and sentences of the lawsuits sustained on the usufruct.

 

Obligations at the end of the usufruct

Once the usufruct is terminated, the usufructuary must hand over to the owner the possession of the usufructed thing.

 


  1. Rights of the usufructuary

Civil Code Article 470

The rights of the usufructuary are those determined by the constitutive title and, in its absence or due to its insufficiency, those established by the Civil Code.

 

Use the assets

Civil Code Article 467

The usufructuary has the right to use the usufructed assets, obtaining direct and immediate possession of them.

As soon as the right of usufruct arises, the usufructuary acquires the right to the possession and enjoyment of the thing that has been usufructed.

 

Perception of the fruits

Civil Code Article 471 to 475

The usufructuary has the right to receive the fruits, whether natural, industrial or civil:

The natural and industrial fruits that are pending at the time of the start of the usufruct belong to the usufructuary, with no obligation to pay any costs to the owner. If they are outstanding at the end of the usufruct, he makes them his own, but pays the costs to the owner.

– The civil fruits are understood to be received per day, and belong to the usufructuary in proportion to the time the usufruct lasts. If the usufructuary has leased the land given in usufruct and this terminates before the lease, he only receives the proportional part of the rent to be paid by the lessee.

When the right to receive a regular income or pension, whether in cash or in kind, is used, each maturity is considered to be the fruit of that right.

– In the case of usufruct over bonds or bearer securities that produce interest, each maturity is considered to be the result of those rights.

– If the usufruct consists of the enjoyment of the profits of a holding in a commercial or industrial operation whose distribution has no fixed maturity, the profits are considered to be fruitful.

 

Right to rent the good

Civil Code Article 480. LAU Article 4

The usufructuary may lease the thing that has been usufructed to another, but all contracts he enters into as usufructuary are terminated at the end of the usufruct.

The housing leases agreed by the usufructuary are terminated at the end of the usufruct – LAU Article 13.2 -. Leases for other than residential use are governed in this point by the provisions of the Civil Code, unless otherwise agreed by the parties.

On the other hand, when the usufruct expires, the lease of rustic properties is considered to subsist during the agricultural year. Furthermore, these contracts may continue to exist for the time stipulated in the contract, even after the expiry of the right of usufruct, if the owner has been present at the granting of the contract. The continuation of the contract during the agricultural year, which is mandatory, does not constitute a new lease.

 

Powers of disposal

Civil Code Article 480 and 498. Land Registry Act Article 107.1

The usufruct is an alienable and mortgagable right in rem.

Disposal may be made either for a fee or free of charge, with the assignee acquiring the usufruct on the same terms as it was constituted. It should be noted that:

– The lifetime nature of the usufruct normally makes it dependent on the life of the transferor and not on that of the transferee.

– The usufructuary must be liable for the damage to the things that are usufructed due to the fault or negligence of the person who replaces him, so that the transferor becomes a guarantor for the transferee.

With regard to the mortgage, it is extinguished whenever the usufruct ends due to an event beyond the control of the usufructuary -for example, his or her death. If it is due to the will of the beneficiary – for example, due to resignation – the extinction does not prejudice the mortgagee, so that the mortgage continues to exist on the usufruct until the guaranteed obligation is fulfilled or the time that the usufruct would normally have ended without the event that terminated it expires.

 

Usufruct with power of disposition

Under Article 467 of the Civil Code, it is possible for the usufructuary to be granted the power to dispose of the thing that has been used. In this case:

– If the usufructuary makes use of this faculty, the thing disappears from the patrimony of the owner.

– If, on the other hand, the usufructuary does not make use of this faculty, once the usufruct is extinguished, the thing passes to the owner or his successors, but not to those of the usufructuary.

It is possible that the power of disposal of the beneficial owner may be conditioned by certain circumstances – for example, in case of necessity – in which case the regularity of the business depends on the fulfilment of the established requirements.

The knot owner is entitled to challenge the disposition made in bad faith or by pretending a nonexistent need, although the proof of the overreach or bad faith is entirely up to him.

 

Other rights

Civil Code Article 479 and 487

The usufructuary has the right to enjoy the increase received by the usufruct, the easements in its favour and, in general, all the benefits inherent to it.

He also has the right, at the end of the usufruct, to withdraw the useful and sumptuous improvements made, if this does not harm the thing. The doctrine of reverse accession does not apply in this case.

 

 


  1.  Special Uses

Certain modalities, usually called special usufructs, are regulated because of the uniqueness of the things on which they fall.

 

Usufruct on deteriorable assets

Civil Code Article 481

It is possible that the right of usufruct falls on things that, without being consumed, gradually deteriorate through use. In this case, the usufructuary has the right to use them according to their intended purpose and is only obliged to return them in the condition in which they are found at the end of the usufruct.

It must be borne in mind that the usufructuary is obliged to carry out ordinary repairs, which are those that require deterioration or damage arising from the natural use of the things and are indispensable for their conservation – Civil Code Article 500 -.

You are not, however, obliged to pay for the loss in value of the thing used over time and through normal use.

The usufructuary has the obligation to compensate the owner for any deterioration of the thing due to his intention or negligence.

In Catalonia, usufruct over deteriorating assets is regulated by providing that, if the usufruct falls on deteriorating assets, the usufructuary may use them according to their destination and must return them when the usufruct expires, in the state in which they are found, compensating the owners for the deterioration they have suffered due to fraud or negligence – Civil Code of Catalonia Article 561-4 -.

 

Use of consumables

Civil Code Article 482

The use of consumables, also called quasifruit, is the use of things that cannot be used without consuming them.

In this case, the usufructuary has the right to use them and must return them when the usufruct ends:

– If estimates had been given, the amount of your appraisal.

– If no estimates had been given, things in equal quantity and quality, or their current price.

– In the event that the usufructuary has not consumed the things in usufruct, he must return those same things.

 

Trees and plantations

Three different scenarios are considered: the use of vineyards, olive groves and other trees or bushes, the use of forests and the use of nurseries.

 

Use of vineyards, olive groves and other trees and shrubs

 Civil Code Article 483 and 484

It applies to land that is populated by trees or bushes that are exploited agriculturally and not by forests, so that they are not cut down to make use of them, but are cultivated to obtain their fruit – for example, apple or orange groves, etc. -.

The only speciality of this usufruct is that the usufructuary is empowered to take advantage of dead feet and feet that have been cut off or torn off by accident, imposing on him the obligation to replace them with others. However, when, as a result of an incident or extraordinary case, a considerable number of trees have disappeared so that replacement is not possible or is too costly, the usufructuary may leave the dead, fallen or trunk feet at the disposal of the owner and require him to remove them and leave the ground unharmed.

 

Mountain habitat

 Civil Code Article 485

This refers to those cases in which the exploitation of the trees is not limited to their fruits, but includes all their uses – for example, firewood, wood, esparto, etc. -.

The user of the mountain enjoys all the benefits that the mountain can produce according to its nature, so that it will be the nature of the mountain that determines the extent of the enjoyment.

If it is a carved mountain or wood for construction, the usufructuary can do the ordinary felling or cutting, adapting himself, as far as the mode, portion and times are concerned, to what the owner used to do and, failing that, to the custom of the place. In any case, the felling or cutting must not prejudice the conservation of the property.

Apart from the above cases, the usufructuary may not cut down trees by the foot except to replace or improve some of the usufructuary’s items, in which case the owner must be notified in advance.

 

Use of nurseries

 Civil Code Article 485.

In the case of tree nurseries, the user can make the necessary thinning so that the remaining trees can develop properly.

It is therefore more than a right of the usufructuary, it is an obligation imposed on him for the proper exploitation of the nursery.

 

Livestock use

Civil Code Article 499

The use of a herd or flock of cattle is regulated, distinguishing, as far as the replacement of dead animals is concerned, according to whether the risks are ordinary or extraordinary:

– Animals that die annually and ordinarily or from the predation of harmful animals – that is, from the ordinary risks of livestock farming – must be replaced with the offspring that are born.

– In the case of extraordinary risks – conflict or other uncommon event, accident or, in general, any fortuitous event – if the flock dies in its entirety, the usufructuary complies with delivering to the owner the spoils that have been saved. and if it is partial, the usufruct continues in the part that is preserved.

 

Use of mines

Civil Code Article 476 to 478

The Civil Code regulates the usufruct of a property in which there are mines, a hypothesis that currently has to be understood as referring to those properties whose owner has obtained from the Administration the authorization for the use of mineral substances or the corresponding administrative concession.

The usufructuary is denied the products of the mines denounced, granted or which are being worked at the beginning of the usufruct, unless it has been expressly granted in the constitutive title or the usufruct is universal.

However, you may remove stones, lime and plaster from the quarries for repairs or work that you are obliged to do or that is necessary.

Only in the case of a legal usufruct can the usufructuary exploit the reported, granted or working mines, making his own half of the resulting profits after reducing the expenses, which he must pay for half with the owner.

 

Usufruct of rights

Civil Code Article 469

The use of rights is permitted, provided that these are not personal or nontransferable. The following cases can be distinguished within the usufruct of rights.

 

Use of credits

 Civil Code Article 507

It is not the usufruct of credits that is regulated, but rather the usufruct that falls on a patrimonial universality of which a credit is a part – for example, the usufruct on an inheritance in which credits exist. Its legal regime is as follows:

  1. a. If the usufructuary has given a guarantee, he can claim the claims that are part of the usufruct himself. If he is exempt from providing security, or has not been able to provide it, or if the security provided is not sufficient, he needs authorisation from the owner or, failing that, from the judge.
  2. b. With regard to the destination of the capital collected, the usufructuary with a guarantee may use the capital as he sees fit. The usufructuary without a guarantee must put the capital at interest, in agreement with the owner and, in his absence, with judicial authorization, and in any case with sufficient guarantees to maintain the integrity of the usufructed capital.

 

Use of actions of a real character

 Civil Code Article 486

The usufructuary of an action to claim a property or right in rem, or a real estate property – for example, an action to claim – is entitled to exercise it and to oblige the owner to assign his representation to him for this purpose and to provide him with the evidence available to him.

If as a consequence of the exercise of the action you obtain the thing claimed, the usufruct is limited to the fruits, leaving the domain to the owner.

 

Quota use of an undivided domain

 Civil Code Article 490

The usufruct of part of a thing possessed in common is admitted, providing that the usufructuary can exercise all the rights that correspond to the owner, referring to the administration and the collection of the fruits and interests.

If the community ceases due to the division of the thing possessed in common, the usufructuary is entitled to the usufruct of the part that is awarded to the owner.

 

Use of an estate

Civil Code Article 506, 642 and 643

The usufruct over the whole of an estate must be limited to the assets existing within it at the time of its constitution.

With regard to liabilities, the rules established for donations apply:

– If there is an agreement that the usufructuary will take over the debts, he is liable for those that existed before the constitution of the usufruct.

– In the absence of an agreement, the usufructuary is affected by the payment of debts when the usufruct has been made in fraud of creditors, the fraud being presumed when the constituent of the usufruct has not reserved assets for payment.

– In any case, the assumption of debts by the usufructuary requires the consent of the creditors.

– Debts of the owner arising after the constitution of the usufruct are not payable by the usufructuary, unless otherwise stipulated.

 

Use of an inheritance

Civil Code Article 510

This is the usufruct constituted either by legal transaction mortis causa or by provision of the Law – usufruct of the widowed spouse.

In the case of the usufruct of all or part of an inheritance, the usufructuary is not obliged to pay the inheritance debts, unless otherwise stipulated by the testator. but the naked owner may choose between these options:

– require that sufficient assets of the estate be sold for payment. or

– to meet the debts himself, with the right to claim from the usufructuary the legal interest on the amount paid.

To avoid this, the usufructuary may advance the necessary sums, with the right to have them returned, without interest, on termination of the usufruct.


  1.  Extinction

Civil Code Articles 513, 514, 516, 1962 and 1963

The use is terminated for the following reasons:

  1. By death of the usufructuary. Since usufruct is normally a right for life, it is not transferred by death to the heirs of the usufructuary, except where this has been expressly provided for. In cases of transmission, the following limits apply: the call is effective as long as it does not go beyond the second degree or when it is made in favour of persons living at the time of the death of the testator – Civil Code Articles 781 and 787 -.
  2. By expiration of the term or fulfillment of the condition of resolution. If the usufructuary dies before the end of the term, the life character of the usufruct prevails and the right is not transmitted to his heirs. The usufruct granted for the time taken by a third party to reach a certain age remains in force even if the third party dies earlier, unless the usufruct has been expressly granted only on account of the existence of that person.
  3. For the reunion of the usufruct and the property in one person. This is what is known as consolidation of property rights.
  4. By the renunciation of the usufructuary, unless this is done to the detriment of a third party, in which case it is ineffective with respect to the latter.
  5. For the total loss of the object of the usufruct. If the loss is partial, the usufruct continues for the remaining part.
  6. For the resolution of the right of the constituent.
  7. By prescription, which is caused by the holder not exercising the powers of usufruct for 6 or 30 years, depending on whether it falls on movable or immovable property, respectively.

 

Effects

Civil Code Article 517 and 522

The effects of the extinction of usufruct are as follows:

  1. a. Once the usufruct has ended, the usufructed thing must be handed over to the owner, except for the right of retention, which is incumbent on the usufructuary or his heirs for the disbursements to be reimbursed. Once delivery has been effected, the deposit or mortgage must be cancelled.
  2. b. In the case of the perishing of a building, two situations can be distinguished:

– If the usufruct is constituted on a property of which the building is a part, the usufructuary has the right to enjoy the land and materials.

– If it is constituted only on the building, also the usufructuary has the right to enjoy the land and materials, although in case the owner wants to construct another building, he has the right to occupy the land and to use the materials, being obliged to pay to the usufructuary, during the duration of the usufruct, the interest of the sums corresponding to the value of the land and materials.

 


  1. Use and room

Civil Code Article 523 to 529

 

Rights in rem of use and habitation are two figures traditionally considered as a variant of usufruct – they have been called «reduced» usufruct. Their main feature is that they are intended to satisfy the needs of the user or inhabitant, but without being able to obtain benefits beyond that.

The use gives the right to receive, from the fruits of the thing of others, those that are sufficient for the needs of the user and his family, even if this is increased.

The room gives the person who has this right the faculty to occupy in another’s house the necessary pieces for himself and for the persons of his family.

As for their legal regime, both rights are governed by their constitutive title, which may be either a legal transaction between living persons – whether gratuitous or not – or a cause of death and, failing that, by the provisions of the Civil Code on the subject. Alternatively, the rules established for usufruct apply to them.

 

National Regulation

Civil Code Article 525 to 529

The regime established in the Civil Code is as follows:

  1. a. In the event that the user consumes all the fruits or the inhabitant occupies the entire house, they are obliged to pay the cultivation expenses, the ordinary conservation repairs and the payment of contributions, in the same way as the usufructuary. If he receives only part of the fruits or inhabits part of the house, they are not to contribute anything, provided that the owner is left with a part of the fruits or uses enough to cover the expenses and charges. If there are not enough, he must make up for the rest.
  2. b. The rights of use and room are nontransferable and unavailable, and cannot be rented or transferred to another person by any kind of title.
  3. c. The rights of use and habitation are extinguished for the same reasons as for usufruct and also for serious abuse of the thing and the room.

 

Community of Assets

Community of assets is given when the same good belongs simultaneously to several persons -communers, that is, when all of them are holders -coowners of the property right over it. Community property is also called condominium or coownership.

The community can fall under any type of rights, whether they are compulsory – for example, coownership of a lease – or real – for example, coownership of a usufruct.

Traditionally, two main forms of community have been distinguished:

– The socalled Germanic or common hand, in which the assets are considered to belong collectively to all the communal members, without quotas being attributed to each of them, so that it is not possible, in principle, to ask for division. In general, it is understood that the community of property and the hereditary community are of this species.

– The Roman community or by quotas, in which each member has the right to a part, not a specific one, which allows each one to alienate his part or to request the division of the common good.

The Civil Code allows the parties to establish the regulation of the community, by virtue of the principle of autonomy of will, and provides that, in the absence of such conventional regulation, the rules regulated in the Code itself – Civil Code Article 392 – apply. These rules actually establish a community regime by quotas.

 

Use of the common good

 Civil Code Article 394 and 398

The Civil Code allows the simultaneous, but reciprocally limited, use of the commoners: each of them can use the common things, provided they have them:

– according to their destiny.

– so that they do not harm the interest of the community.

– does not prevent the rest of the coproprietors from using them according to their rights.

The co-proprietors can establish the rules of use they consider appropriate. In this respect, it is established that for the best enjoyment of the common thing the agreements of the majority of the participants are obligatory.

Administration of the common good

 Civil Code Articles 393, 395, 397 and 398

The acts of administration are those that tend to the conservation, enjoyment and use of the thing. They are subject to the regime of majority participation – quotas – and the agreements adopted in this way are considered obligatory. For this purpose, until proven otherwise, all quotas are presumed to be equal.

If a majority is not obtained, or if the agreement is seriously prejudicial to those interested in the common thing, any of the participants can go to court to decide what is appropriate, including by requesting the appointment of an administrator.

Maintenance and conservation work carried out for the common good should be subject to this regime. In the case of works involving an alteration of the common thing, the majority is not sufficient, but the unanimous agreement of the coowners is necessary, since none of them may, without the consent of the others, make alterations to the common thing, even though such alterations may be to the advantage of all – Civil Code Article 397.

The contribution of each member to the charges and expenses generated by the common good must be in proportion to his respective share. In this sense, any of the coproprietors may oblige the others to contribute to the costs of preserving the common thing. This obligation can only be waived by the party renouncing his share in the ownership.

Similarly, the share of the profits it generates must also be proportional.

 

Provision on the common good

 Civil Code Article 397

Acts of disposition are those aimed at the alienation of the common good or at constituting rights in rem or encumbrances on it.

While for the adoption of acts of administration the majority agreement of the communal farmers is sufficient, for the implementation of acts of disposition unanimity is required. This can be inferred from the precept that none of the coproprietors may, without the consent of the others, make alterations to the common property.

 

Quota provision

 Civil Code Article 399

As far as the part corresponding to each member is concerned, each one can freely dispose of it, assign it or mortgage it.

 

Retraction of community members

 Civil Code Article 1522 and 1524

In the event that any of the coproprietors’ shares are sold, the remaining coproprietors have the right of withdrawal.

When two or more members of the community want to use the withdrawal, they can only do so on a pro rata basis of the portion they have in the common thing.

The deadline for the exercise of the right is 9 days from the registration of the sale in the Land Registry.

A presumption iuris et de jure of knowledge of the sale by the purchaser is established from the date of registration, so that, in principle, the period is counted from the day following registration. However, if the seller knew of the sale in detail before that date, the period shall be calculated on the basis of that knowledge.

 

Community representation

The community of property has no legal personality of its own.

However, it is understood that any of the participants may appear in court in matters that affect the rights of the community, either to exercise them or to defend them, in which case the sentence handed down in their favour takes advantage of the other community members, without prejudicing the adverse or contrary one. In order for this legal standing to be recognised, it is essential that the claim made in the name of the plaintiff alone must necessarily benefit the community of which he is a member.

 

          Community extinction

 Civil Code Articles 395 and 404

The community becomes extinct because of the following causes:

– By extinction of property – for example, destruction of the common good.

– For the gathering of all the dues in one person – whether it is a commune or a stranger who buys them.

– For the division of the common good. This last cause is dealt with in detail in the Civil Code.

 

Division of the common good

 Civil Code Article 400 to 406

Any member of the community may at any time request the division of the common good, which may be carried out in a manner agreed upon by the members or by any of them exercising the action of division.

There are two exceptions to this general rule:

– that the indivisibility of the common good has been agreed upon for a fixed period of time, which may be up to 10 years, extendable by a new agreement.

– the division of the common property makes it unusable for its intended use, in which case it can only be awarded to one of the coproprietors or sold to a third party.

The division aims at the cessation of the community situation, giving rise to one of the following assumptions:

– the distribution of the property – or the assets that constitute a patrimony – among the communal owners, attributing to each one the full and separate ownership of a part.

– the awarding of the property to one of the communal owners, with compensation to the others.

– the sale of the property and the distribution among the communal farmers of the price obtained for it.

There are three ways of indivisibility: physical indivisibility, uselessness and undesirability, being a concept of value that can be deduced from some facts. The indivisibility can result from the fact that the thing, in case of division, remains unusable for the use to which it is destined, or because it produces an abnormal unworthiness, or because it causes a considerable expense.

The division is governed by the following rules:

a The division of the common thing can be done by the interested parties, or by arbitrators or friendly composers appointed at the will of the participants. In the latter case, they must form parties in proportion to the right of each one, avoiding as far as possible any supplements to cash.

b If it is a building whose characteristics allow it, at the request of any of the coowners, the division can be carried out through the allocation of independent flats or premises, with their common elements attached, thus constituting a horizontal property regime.

c The division must not prejudice third parties, who retain the rights in rem -for example, mortgage, easements or obligations -for example, lease that they had on the thing.

d The creditors or assignees of the participants may agree to the division of the common property and oppose the division without their agreement, but they may not contest the completed division, except in the event of fraud, or in the event that it has been carried out despite their formal opposition to prevent it, and always with the exception of the rights of the debtor or the assignor to maintain its validity.

e The rules concerning the division of the community are applicable to the division of the inheritance – Civil Code Article 1051 to 1087 -.

 

Easements

 

Servitude or easements is a real right over something that belongs to another. It constitutes a lien imposed on a property for the benefit of another, belonging to a different owner, or for the benefit of a person or group of persons. Unlike limits of ownership, easements generally require a special act for their constitution.

 

Easements are classified according to whether they are established for the benefit of a property or a person, whether they imply an obligation to do so, whether they allow continued use, their external manifestation, or their form of constitution.

In addition to this general classification, the Civil Code typifies various categories of easements according to their purpose and particular circumstances. These easements, called legal because they are specifically provided for by law, are dealt with in detail below.

 

A.1. Property and personal easements

 Civil Code Article 530 and 531

A property easement is a lien imposed on a property -servant property for the benefit of another -dominant property belonging to a different owner.

Personal are those established for the benefit of one or more persons, or a community, to whom the taxed property does not belong. With respect to the latter, it should be noted that the Civil Code does not regulate personal easements other than those for pastures – Civil Code Article 600 to 602 -. the right to use pastures and firewood established for the benefit of the inhabitants of a village.

 

A.2. Positive and negative easements

 Civil Code Article 533

The term positive is used for the servitude that imposes on the owner of the servient property the obligation to let him do something or to do it for himself, and negative for the one that imposes on the owner of the servient property the prohibition to do something that would be lawful for him without the servitude.

The Civil Code seems to admit that the content of an easement consists of the owner of the servient estate performing a service in favor of the owner of the dominant estate -obligation to let something be done or to do it himself. However, the most widespread doctrine denies that the content of an easement may consist of a positive service and, consequently, interprets this precept as an allusion to accessory services, such as the obligation of the servient owner to pay for the works necessary for the use and conservation of the easement – Civil Code Article 599 -.

While in positive easements the owner makes immediate use of the servient estate, perceiving the utility of the easement by a direct action -for example, transit-, in negative easements the utility is produced by a specific abstention of the owner of the servient estate -for example, not building within a certain distance.

 

A.3. Continuous and discontinuous easements

 Civil Code Article 532

Those servitudes whose use is or may be incessant, without the intervention of any act of man, are continuous. Continuity does not imply an effectively uninterrupted exercise, but only potentially actionable at any time.

They are discontinuous those that are used at more or less long intervals and depend on man’s actions.

They’re continuous:

– the aqueduct easement.

– that of draining the dominant property through the servant’s property.

– the one with the lights and the view.

– the energy conduction one. and

– that of not building above a certain height.

They’re discontinuous:

– the right of way.

– that of grasses. and

– the one of water sack and trough.

 

A.4. Apparent and nonapparent easements

 Civil Code Article 532

Those that are announced and are continually in view by external signs, which reveal the use and exploitation of them, are apparent.

They are not apparent, those that do not present any external indication of their existence.

These are apparent servitudes:

– the drainage ones, in case the conduction is visible

– the one with the roof slope.

– the power line or telephone line, provided that the cable is visible.

– the one in passing, if there is a visually perceptible path.

– the smoke outlet through a pipe or chimney. and

– that of lights and views, when enjoyed through a window, balcony or other opening.

They are not apparent easements:

– the ones from the pastures.

– the one of lights and views, unless they are enjoyed through a window, balcony or similar opening.

– the one with the nonvisible drainage.

– the nonvisible electrical or telephone conduction.

– the one of non visible aqueduct and

– the limitation of building higher or lower than the predetermined distance 

 

A.5. Legal, Voluntary, and Forced Easements

 Civil Code Article 536, 556, 562, 564 and 588

Legal easements are understood to be those that are specifically provided for or typified in the Law, with voluntary easements being those that are established by the will of the owners.

However, this classification is not very accurate, since a large number of the easements that are classified as legal are not really easements, but rather limitations of the domain – for example, the median line

It is more correct to contrast voluntary with forced servitudes. Voluntary easements are those that can only be imposed by virtue of a legal transaction.

Forced servitudes, on the other hand, are those whose constitution can be requested by the persons indicated by the Law and decreed by the authority, even against the will of the owner of the servient property

Even though compulsory servitudes may be imposed, those imposed in the interest of individuals or for reasons of private utility may be modified by agreement of the interested parties, when this is not prohibited by law and is not detrimental to third parties.

They are forced, among others:

– the dam and stop or breaker stirrup easement

– the right of way 

– the drainage easement 

Forced servitudes are provided for in situations where there is a pressing need for something that can only be satisfied by granting use of another’s property. The Law then allows those who suffer from this need to obtain – even against the will of the person being encumbered – a right that can satisfy this need.

 

A.6. Homeowner’s easement

The coexistence of two property rights on two different properties is, in principle, indispensable for the establishment of an easement. Therefore, an easement should be established only when there is a need to have dominion over a juxtaposed property, so there is no room for a socalled owner’s easement.

There are, however, certain exceptions to this principle:

– In Catalonia it is admitted the owner’s servitude – Civil Code of Catalonia Article 566-3-. -.

– In Navarre, it is not expressly required to belong to different owners.

– Easements constituted by the sole owner over different elements of buildings subject to the horizontal property regime or of future construction are allowed, although their effectiveness is conditioned by the sale to a third party of at least one of the elements.

 

A.7. Administrative easements

 Civil Code Article 553 and 555

These are those easements established in the public interest. They are not really easements because they are established for the benefit of the community.

They are the towpath easement and the watering place easement.

Voluntary easements

 

Voluntary easements are those that can only be imposed by virtue of a legal transaction, that is, those whose imposition by one of the owners is not provided for by law.

 

F.1.  Establishment

Voluntary easements can be established:

– by the will of those concerned.

– by the fate of the father of the family.

– by usucapion.

– for immemorial possession.

Since the right of servitude constitutes a lien on the proprietary rights of third parties, case law advises, in doubtful cases, to favour as far as possible the interest and condition of the servient property, since all matters relating to the imposition of liens are strictly interpreted, and because of the presumption of freedom of the property.

 

Will of the interested parties

The constitutive title may be any business or legal act creating the servitude, onerous or free, between living or by reason of death, by virtue of which the limitation of the property right carried out by the owner of the servient property is established, even if it is not recorded in documents.

The form of the act must be in relation to its nature. When it is a contract, the granting of a public deed is not a requirement for its validity, although the parties may reciprocally oblige each other to grant it – Civil Code Article 1278 to 1280 -.

In the case of the constitution of the right in rem among the living, a concert of wills is necessary that, in an unequivocal way, reflects the purpose of the grantors, operating, in case of doubt, the presumption of freedom of the property. However broad the degree of tolerance shown by previous holders of the potential servient estate may have been, a precise and decisive will is required to give rise to the birth of the right in rem.

It is also essential that the title to the property determines the extent and manner of its exercise, which cannot be altered by the sole will of the owner of the dominant property, and the obligations of the servant.

The interpretation of the scope of the title of voluntary easements should be made in accordance with the easement’s definition notes:

– It must provide a utility by serving an interest of the dominant property, so the burden it entails cannot be broader than the utility it provides.

– It must be appropriate to the interest, in the sense that there is no room for general or universal servitudes, but the exercise of the right must be concrete, which corresponds to the concept of partial power over the servient estate.

 

assigned by the father of the family

Civil Code Article 541

When there is an apparent sign of easement between two estates, established by the owner of both, if one of them is sold, such sign is considered as a title for the easement to continue actively and passively, unless, at the time of separation of the property of the two estates, the opposite is expressed in the title of sale of either of them, or that sign is made to disappear before the granting of the deed.

The following requirements have been identified for the constitution of the easement:

– The existence of two properties belonging to the same owner.

– A de facto state between the two estates from which it results by visible and evident signs that one estate provides another with a service that is determinant of servitude.

– That such form of externalization or demonstration signal has been imposed by the common owner of both properties.

– That the apparent sign persists when the transfer to any person of the property of any of the properties takes place.

– That in the corresponding public deed nothing is expressed against the continuance of the servitude or that the sign has not been made to disappear before the granting of the servitude. Such a statement to the contrary must appear in the title in a clear and evident manner.

– May the easement be of real use to the dominant estate. The mere existence and permanence of the sign on which the easement was founded is not enough. it only subsists as long as it maintains true usefulness.

Usucapion

Civil Code Article 537, 538 and 1941

Continuous and apparent easements are acquired, in addition to title, by the 20-year statute of limitations. Both characteristics must be present: continuity and appearance, so that only in this case will it be possible to establish them by usucapion.

To acquire easements by usucapion, the time of possession is computed:

– In the positive, from the day the owner of the dominant property, or the one who has taken advantage of the servitude, has started to exercise it over the servant’s property.

– In refusals, from the day when the owner of the dominant property has forbidden, by a formal act, the execution of the act that would be lawful without the servitude.

Possession valid to adquire by  usucapion must be in the form of an easement, public, peaceful and uninterrupted.

It is never possible to acquire easements by acquisitive prescription, since the «outward signs of servitude» are irrelevant to easements. Exceptionally, acquisition by immemorial prescription is allowed if the events giving rise to the discontinued easement occurred before the publication of the Civil Code.

Immemorial possession

The constitution of an easement for immemorial possession is an exceptional case. In principle, it is established that nonapparent continuous servitudes and discontinuous servitudes, whether apparent or not, can only be acquired by virtue of a title – Civil Code Article 539 -.

However, the acquisition of rights of way is allowed by virtue of immemorial prescription, that is, the beginning of the possession on which it is based goes back beyond where memory reaches.

The legal basis for this acquisition would be found in Las Partidas – Item 3 of Law 15 Title 31 – which, contrary to the provisions of the Civil Code, established that discontinuous easements – path, race or road could be won by immemorial possession.

This easement must have existed prior to the entry into force of the Civil Code (1889), since the legislation prior to the Civil Code governs the rights arising from acts carried out under its regime, even if the Code regulates them in another way or does not recognize them (Civil Code trans. 1).

The estimation of its attendance requires a very long and peaceful possession of remote origin that does not reach the memory of men and without any news of fact contrary to it.  That is to say:

– that they do not remember by themselves or by reference to their elders the origin of servitude. and

– who neither remember nor have heard of a state of affairs contrary to it.

In Aragon, the immemorial, peaceful and uninterrupted possession of non apparent easements produces, without any other requirement, the effects of the acquisitive prescription – Aragon Legislative Decree 1/2011 Article 569 -.

 

F.2.  Subjects and object

Civil Code Article 594 to 597

 

Property easements are configured on the basis of two subjects:

– the owner of the servient estate, who is to suffer the lien imposed on him by the easement. and

– the owner of the dominant property, who has a subjective right.

The power to impose easements belongs to the owner of the dominant property, although

– The naked owner can impose on the property, without the consent of the usufructuary, the easements that do not prejudice the right of usufruct.

– In cases of emphyteusis, when a person owns the direct domain of a property and another the useful domain, perpetual voluntary servitude cannot be established on it without the consent of both owners.

– To impose an easement on an undivided property, the consent of all the coowners is required.

The object of the servitude is the servient property, which must be perfectly delimited -principle of speciality.

It is not essential that the servitude fall on the whole of the servant’s property, but it can be contracted to a part of it.


F.3.  Faculties

Civil Code Article 542 and 598

 

The content of the easement right is determined by the type of easement involved:

– In positive easements, it implies a right to use or enjoy the servient property.

– In negative servitudes, it consists of the power to demand an omission from the owner of the servient property and the destruction of whatever has been done injuring or violating the servitude -TenPicazo.

The powers granted to the holder of the easement can be subdivided into main and accessory powers:

  1. a. With respect to the principal powers, the title and, if applicable, the possession of the easement acquired by prescription determine the rights of the dominant property and the obligations of the servant.
  2. b. With respect to the accessory powers, it is provided that when an easement is established, all the rights necessary for its use are granted.

 

F.4.  Modification

Civil Code Article 545, 547 and 551

There are certain causes that make it possible to modify easements:

  1. a. The agreement of the interested parties. Both voluntary and compulsory easements imposed in the interest of individuals may be modified by agreement of the interested parties when this is not prohibited by law or would be detrimental to a third party.
  2. b. The power of variation of the owner of the servient property, in cases of unnecessary sacrifice. If, by reason of the place originally assigned, or the form established for the use of the easement, it becomes too inconvenient for the owner of the servient estate, or deprives him of making important works, repairs, or improvements thereon, it may be varied at his expense, provided that he offers another place or form equally convenient and no prejudice is caused to the owner of the dominant estate or to those entitled to the use of the easement. The modification based on this cause may be obtained voluntarily – by agreement between the interested parties – or by force as a result of the exercise of the corresponding legal action.
  3. c. The external modification of the premises. The change in the situation of the properties may cause, by reducing the possibilities of their use, a decrease in the easement – analogical application of the Civil Code Article 546.3 – -Lacruz.
  4. d. Time and possession. The manner of rendering the servitude may be prescribed as the servitude itself, and in the same manner.

Easements that cannot be won by usucapion cannot see their form altered by the passage of time.

 

F.5.  Extinction

Civil Code Article 546

The easements are extinguished:

  1. By consolidation, which occurs when the ownership of the dominant property and that of the servant, in the case of easements, are united in the same person.
  2. For not using it for 20 years. The term begins on the day the use of the easement is stopped, with respect to discontinued use. and from the day an act contrary to the easement has taken place, with respect to continuous use.
  3. For loss of the thing, when the grounds come to such a state that it cannot be used from the bondage. However, the same shall be revived if the condition of the land subsequently permits its use, unless, when such use is possible, sufficient time has elapsed for the prescription, i.e., 20 years.
  4. By expiration, when the day arrives or the condition is met, if the easement is temporary or conditional.
  5. By resignation of the owner of the dominant property. The resignation must be clear, strict and deduced from unequivocal acts.
  6. By redemption or extinctive agreement between the owner of the dominant property and that of the servant.

 

  1. Water rights

In this section we explain the easements and limitations of the domain in the field of water, which are regulated both in the Civil Code and in special legislation.

 

Right to the natural course of water

Civil Code Article 552

This is not strictly speaking an easement, but a limit to the domain, a real restriction to the right of ownership.

By virtue of this, the lower landsthe servants – are subject to receive the waters that naturally and without man’s work descend from the higher landsthe masters – as well as the earth or stone that they drag along their course.

Neither the owner of the lower land can do works that prevent this servitude, nor the owner of the higher land can do works that aggravate it. The performance of such works entitles the injured party to claim in court the restitution of the state of affairs prior to the disturbance and the corresponding compensation for damages.

If the water is the product of a birth, is surplus to other uses or has been artificially altered in its spontaneous quality, the owner of the lower land may oppose its reception, with the right to demand compensation for damages, unless a voluntary drainage easement is constituted.

Since this is a legal limit to the domain, no title of acquisition is required for its exercise or to urge its reestablishment in court, by any of the affected parties.

Requirements

The following requirements have been identified for such an easement to occur:

– The farms concerned must be located in a descending line from one another. The existence of an easement does not require that the properties be adjacent or contiguous, since the owner of the servient property is not legally obligated to channel more than the waters that fall on his own property, and not also those that fall on the properties of third parties, even if they flow through his property.

– The farms must be of a rustic nature, never urban. This easement is not a suitable mechanism to respond to the problems generated by rainwater in an unpaved urban area that lacks rainwater drainage.

– The flow of the waters must be constituted by a natural course of the same, without the intervention, in much or in little, of the hand of the man. The water must originate from natural phenomena – rain, springs, aquifers – excluding cases where man intervenes in the production of the flow – for example, artificial irrigation. The natural course of the waters is not altered by the fact that, originating in natural spills from the upper land, they are then channelled.

 

When the above requirements are not met, only one property can be drained into a lower one by means of:

  1. The establishment, where appropriate, of a compulsory water supply system for the discharge of water.
  2. Forced drainage easement, if its requirements are met.
  3. A voluntary drainage easement acquired by virtue of title, since, since it is continuous and not apparent, it cannot be acquired by usucapion.

 

Dam and stop or breaker stirrup easement

Civil Code Articles 554 and 562

In cases where, for the diversion or intake of water from a river or stream or for the use of other continuous or discontinuous streams, it is indispensable for someone who is not the owner of the banks or land to install a dam, the latter may be urged to establish an easement of the dam’s abutment, i.e. to build it on someone else’s property, subject to the corresponding compensation, which will include the value of the land occupied by the work, and the damages caused to the owner of the servient property.

The owner has the same faculty that in order to give irrigation to his inheritance – or simply to improve it – he needs to raise a stop or partition. To this end, he may require the owners of the banks to allow their construction.

This easement may be imposed by the basin organizations, which must reduce, as much as possible, the tax it implies on the servient property.

 

Easement of aqueduct

Civil Code Article 557 to 561

Anyone who wishes to use the water available for his property has the right to have it passed through the intermediate plots, with the obligation to compensate the owners, as well as those of the lower plots on which the water leaks or falls.

It is an indispensable prerequisite for this servitude that the dominant property is separated from the place of the water intake by another means, since this is the reason that justifies the constitution of a real tax on the servient property.

The water easement is continuous and apparent, even if the passage of water is not constant or its use depends on the needs of the dominant property or a shift established by days or hours.

This servitude does not prevent the owner from closing and fencing off the servient property, as well as building on the same aqueduct so that it does not experience any damage or prevent the necessary repairs and cleanup.

Implicit in this is the right of passage through its margins for the exclusive service of the same. This is a right of passage that is accessory to the aqueduct and inherent to the easement.

On the other hand, the owner of the servient estate must tolerate the necessary works that the owner of the dominant estate intends to undertake.

 

Requirements

Civil Code Article 558-

In order to impose the constitution of this easement, the following requirements are established:

  1. Justify that the dominant property can dispose of the water and that it is sufficient for its intended use.
  2. Demonstrate that the step you are requesting is the most convenient and least onerous for the third party.
  3. Compensation to the owner of the servant property in the manner determined by the laws and regulations.

 

Rights of the holder

The jurisprudence has specified that the holder of the easement has the following rights:

– To the construction of the aqueduct, carrying out all the necessary works, as well as to its conservation and cleaning.

– To the consolidation of the margins of the aqueduct with lawns, stakes, walls or slopes of loose stone, but not with plantations of any kind.

– For the exclusive service of the easements, it has the right of passage along the margins of the aqueduct – Royal Decree 849/1986 Article 32 -, for the repair and necessary cleaning of the water pipes.

 

Forced aqueduct servitude

The Civil Code, Article 557, contains only a general concept of aqueduct servitude, which, along with the forms of practicing it to satisfy public interests and those that serve private interests -both in the area and channel of administrative activity, may include those forced aqueduct servitudes for the specific service of one’s own property with the water that can be disposed of, in accordance with Civil Code Articles 557 to 561, which is then considered a continuous and apparent territorial encumbrance.

Basin organizations hydrographic confederations – can impose forced aqueduct servitude if the use of the resource or its evacuation requires it. This easement is governed by the provisions of the Public Waterways Regulations and, in addition, by the Civil Code.

Below are its most outstanding features:

a This easement can be imposed for both public and private interest reasons.

They are considered sufficient grounds of private interest – Royal Decree 849/1986 Article 19.3 -:

– The supply of housing and the establishment or extension of irrigation, energy use, spas or industries, as well as the disposal of surplus or waste water.

– The drying up of lagoons and marshlands.

– The disposal of water from artificial lighting, runoff and drainage.

b The establishment of this easement requires a previous administrative file to justify the usefulness of the tax to be imposed.

The file is initiated by a request to the president of the basin organization to which the land on which the easement is intended to be imposed corresponds.

All costs incurred in the processing of the file are borne by the petitioner, except those arising from the opposition of the owner of the servient property to the establishment of the lien.

c The owner of the servant may object on any of the following grounds:

– For not providing proof of water availability on request.

– For not proving, in addition, the ownership of the land on which he intends to use it, for purposes of private interest, if the availability is derived from a title other than the concessionary, under the exceptional cases provided for in the Water Law.

– Because it can be established on other properties with equal advantages for the one who intends to impose it and lesser disadvantages for the one who has to suffer it.

d The establishment of a forced aqueduct servitude requires the previous payment of the corresponding compensation in accordance with the provisions of the legislation of forced expropriation.

e It is the responsibility of the person who has promoted and obtained the aqueduct easement to carry out all the necessary works for its construction, conservation and cleaning, and may temporarily occupy the land essential for the deposit of materials, with prior compensation or deposit.

f The forced servitude of water implies the right of passage through its margins for the exclusive service of the same.

g Its extinction takes place – Royal Decree 849/1986 Article 33 -:

– By consolidation, when the ownership of the dominant and servant properties are brought together in one person.

– Due to the expiry of the deadline set at the time of granting.

– For compulsory purchase.

– By resignation of the owner of the dominant property.

– For loss of the right to dispose of water.

The owner of the dominant property is obliged to restore things to their former state once the servitude has been extinguished – Royal Decree 849/1986 Article 31 -.

 

Easements for water extraction and watering

Civil Code Articles 555 and 556

These easements entail the obligation to give way to persons and livestock on the servient estates up to the point where they are to be used, and the compensation must be extended to this service.

The easements of water extraction and watering are administrative easements and can only be imposed by reason of public utility in favor of housing or population center, after the corresponding compensation without these easements can be imposed on cisterns or tanks or buildings or land fenced with walls – Royal Decree 849/1986 Article 43 -.

Trough and water extraction easements carry with them the obligation of the servient estates to make way for people and livestock up to the point where they are to be used.

The rules established for the granting of forced water servitude are applicable to the imposition of this type of easement.

 

  1. Rights of way

Civil Code Article 564 to 570

The owner of an estate is entitled to demand passage through neighbouring estates, subject to the corresponding compensation, when his property is located among other foreign estates and has no exit to a public road.

The right can concern both rural and urban properties.

It is a discontinuous servitude, so it can only be purchased:

– by virtue of title, and

– in the absence of the former, by a deed of recognition of the owner of the servient estate or by a final judgment.

– by prescription.

Acquisition by usucapion or by acts of mere tolerance is not possible, except in the Basque Country, where the right of way can be acquired by virtue of a title or by prescription of 20 years – Basque Country Law 5/2015 Article 14.1 -.

 

Requirements

Civil Code Article 564

The following circumstances must be met for the establishment of an easement to be required:

– That the property of the person who requests it is located among other properties belonging to others.

– That the estate has no exit to a public road.

The application of easement, given its nature as property and forced servitude, requires, even in the case of urban properties, that the basic elements required by the law be present, particularly regarding the location of the property and the lack of access to public roads, There is no need to set up a company when the dominant property already has an exit to a public road, even if this is indirect, or when the applicant wishes, for mere convenience, to fit out one of the rooms of his house as a garage

However, it is possible to establish an easement when access to a public road is excessively costly or uneconomical or when the exit is insufficient to meet the needs of the dominant property.  In any case, the scope of the above assumptions is very restrictive.

For its constitution is unavoidable full accreditation of the domain to which affects the passage of the dispute, ie, the ownership of the property of the property servant.

The constitution of a permanent way of passage implies the obligation on the part of the owner of the dominant property to compensate that of the servant, both for the value of the land he occupies and for the damages caused.

 

Passage of building materials and scaffolding

Civil Code Article 569

It is possible to constitute a temporary easement of passage in case materials have to be transported on another’s property or scaffolds or other objects have to be placed on it for the purpose of a work, and the corresponding compensation is paid.

The occupation of the servant’s property must be indispensable for the construction or repair of any building, or the execution of any work. although the need must be preached not of the work itself, but of the passage or the occupation. The concept should not be understood in an absolute sense but in accordance with the current technical requirements of a work, including cases in which, although it is technically possible not to carry out the passage through the neighbouring property, the work would be done with greater technical difficulty, and its cost would be much higher.

 

How to provide the servitude

Civil Code Article 565

Servitude must be provided in the way that is least burdensome to the servient estate and, in general, by the place where the distance from the dominant estate to the public road is less.

The criterion of least harm to the servient estate prevails over the criterion of least distance to the public road, i.e. the distance rule is subsidiary.

When the struggle is between several propertiesdetermining among them which one should bear the servitude of the dominant property the damage that the passage causes to each one of them must be weighed, choosing the lesser one.

 

Compensation

Civil Code Article 564

It must be prior, so that the right of easement is ineffective as long as the compensation is not paid.

The value of the land in that area must be taken into account when fixing it.

If the easement is temporary – for example, scaffolding – the compensation should consist of the payment of the damage caused by this encumbrance.

When the easement has been constituted by usucapion, it is not possible to claim compensation from the owner of the dominant property. In general, the specific precepts of legal easements do not apply to voluntary easements. Therefore, if there is no evidence that an easement was created by legal imposition of the Civil Code, Article 564 et seq., it cannot be extinguished by application of the Civil Code.

 

  1. Easements of lights and views

Civil Code Article 580 to 585 –

This easement allows the owner of a building to open windows or openings in its own wall overlooking an adjacent property, under certain circumstances, to receive lights or to enjoy views.

 

Tolerance holes

– Civil Code Article 581-

As a general rule, the owner of a nondividing wall, adjacent to someone else’s property, can open windows or openings in it to receive lights, which are called tolerance holes.

The following requirements must be met:

– They have to be up to the roofs.

– They can’t exceed 30 centimeters in square.

– In any case, they must have an iron grille tucked into the wall and a wire netting.

The owner of the property or property adjacent to the wall can close the holes if he acquires the partitioning and the opposite has not been agreed. He can also cover them by building on his land or by erecting a wall next to the one with the hole or window.

 

Right to Views

– Civil Code Article 582 to 585 –

No windows with straight views, balconies or other similar overhangs over the neighbour’s property may be opened if there is not a distance of 2 metres between the wall on which they are built and the said property. Neither can you have side or oblique views over the same property if there is not 60 centimetres of distance.

The distances are measured as follows:

– in the straight views, from the outside line of the wall or the overhangs – if any -.

– in the oblique views, from the line of separation of the two properties.

These limitations do not apply to buildings separated by a public road. The legal distances are not applicable when there is a general public transit area between the two properties, which has been ceded to the town hall in compliance with the provisions of the general urban development plan, even though the land has not yet been handed over and accepted by the town hall. Otherwise the purpose of the plot would be frustrated. It would not make sense to authorise segregation and accommodation under the urban plan, with the transfer of land for roads and pavements, if the opening of open spaces for these is later denied. Nor do they apply when there is a title that establishes the scope or extension of the easement.

The concept of straight views includes not only those that are exercised in an open window on a wall parallel to the dividing line, but also those that form a very sharp angle with it. Oblique views are those enjoyed from an open window in a wall that is perpendicular to the dividing line or that forms a very obtuse angle with it.

Since they imply a limitation of the exercise of the dominical powers, these limitations must be subject to a restrictive interpretation and application.

Closures of openings or cantilevers are permitted when, despite not respecting the legal distances, they are made of translucent materials that have the characteristics of being solid and resistant – for example, translucent concrete – which excludes the use of mere glass, in such a way that they prevent the vision of clear forms, even if they allow light to pass through. However, the doctrine of the admission of translucent material cannot be applied extensively.

If the signs of the easement are conspicuous and unquestionable, their external appearance gives them publicity equivalent to registration, taking effect against the purchaser of the adjoining property, even if the existence of the easement is not shown by the Registry.

 

Voluntary servitude of lights and views

– Civil Code Article 585 –

An easement may be voluntarily constituted, consisting of the right to open windows, balconies, or viewpoints to take in light and enjoy views through or over an outside property.

This servitude is negative when the holes are open in the wall of the owner of the dominant property, if they are tucked in or framed exclusively in that wall, with no overhang or projection on another’s property. The acquisition of this easement by prescription requires the performance of an obstructive act, such as a requirement not to build or an injunction to suspend construction.

It is positive when such holes are in the dividing wall or the owner’s own wall of the servant’s property or when it consists of flights or overhangs on the land of the servant’s property, insofar as in this way the owner of the servant’s property is imposed the obligation to let something be done – invasion or occupation of the right to fly.

Unless otherwise agreed, the owner of the servient property is prohibited from building within 3 meters of the dominant property. He may build or raise the building, with no height limitation, as long as he respects that minimum distance.

 


  1. Building drainage easements

Civil Code Article 586 to 588

Within this category are various easements that are related to the drainage of rainwater. Rather than an easement, the provision contains a limitation of ownership by reason of rainwater harvesting, a limitation established on a reciprocal basis.

 

As a preliminary, it should be noted that, in principle, it is the obligation of each owner to build his roofs in such a way that rainwater does not fall on the neighbour’s land, but on his own land, street or public site, and to collect it in such a way that it does not cause damage to the adjoining properties – Civil Code Article 586 -.

Failure to comply with this obligation entitles the injured owner to compel the offender to adopt the necessary measures to prevent the discharge of the water. He may also claim compensation for the damage suffered, without having to resort to the system of noncontractual liability.

 

Roof slope easement

Civil Code Article 587

It is a voluntary servitude by virtue of which the owner of the servient estate must receive the rainwater of the dominant estate on his own roof and floor. It is a particular derogation from the general rule prohibiting the drainage of rainwater on other people’s property.

It can be constituted by agreement or recognition of the owner of the servant property, by destiny of the father of the family and by prescription, since it is continuous and apparent.

The owner of the servient estate may build, provided he continues to receive the waters on his own roof or gives them another outlet, in accordance with local ordinances or customs and in such a way as not to encumber or prejudice the dominant estate.

 

Forced rainwater drainage servitude

Civil Code Article 588

If the yard or corral of a house is located among others, and it is not possible to give exit through the same house to the rainwater collected in that yard or corral, it may be required to establish a drainage easement, giving way to the water at the point of the adjacent property where it is easier to exit and establishing the drainage channel in the way that causes less damage to the servant’s property.

It is a forced servitude that requires prior payment of compensation.

 

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Local Taxation in Spain

Classification
The Local Finance Act groups municipal taxes into two blocks: the first is made up of compulsory municipal taxation, the second of voluntary taxation.
A.- Mandatory municipal taxes. They have the following common characteristics:
– must be applied by the town council, which may only vary or introduce tax benefits, elements to quantify tax debts and, in no case, regulate certain aspects of the management procedure.
This compulsory local taxes are:
a. Business Tax
b. Property Tax
c. Tax on Mechanical Traction Vehicles
B. Voluntary municipal taxes. They may be established or abolished by means of the municipal tax ordinances. The following are included in this category:
a. Tax on Construction, Installations and Works
b. Tax on the Increase in Value of Urban Land
c. Municipal Tax on Sumptuary Expenses

Management of municipal taxes
The administration of municipal taxes is the responsibility of the respective local councils, although the State Administration is exclusively responsible for the cadastral management of the Real Estate Tax and the census management of the Income Tax, although the latter may be delegated in certain cases.
The municipalities can manage their taxes:
a. directly by themselves; or
b. delegating all or part of their powers, in favour of the Regional Authorities Communities or local supramunicipal entities in whose territory they are integrated.

Local Surcharges and Allowances
The surcharges payable on the taxes of local entities and Regional Governments are considered resources of the local treasuries.
In each of the local taxes there are the allowances that are indicated when developing the specific concept. However, in general, it should be noted that local councils can establish a reduction of up to 5% of the tax payable by taxpayers who choose to have their periodic debts paid by direct debit to a financial institution, advance payments or carry out actions involving collaboration in the collection of income;

Infringements and sanctions
The regime of infractions and sanctions in the field of local taxes is in line with the general provisions of the General Tax Law, the complementary provisions resulting from the Local Finance Law and those that, where appropriate, are established in the local tax ordinances.

The Real Estate Tax (IBI)

The Real Estate Tax (IBI) is a direct tax of real character, of municipal ownership and compulsory levy that taxes the value of real estate. Its management is shared between the State Administration and the exacting local councils.

The basic regulations at the state level are those provided for in:

– the consolidated text of the Law regulating Local Treasuries (Ley Haciendas Locales)

– the consolidated text of the Law of Real Estate Cadastre (Ley del Catastro Inmobiliario)

 

Taxable event

The taxable event is constituted by the ownership of urban, rural and special property, of one of the following rights:

  1. administrative concession on the buildings themselves or on the public services to which they are attached;
  2. Surface right;
  3. usufruct;
  4. property rights.

       

        Real Estate

For the purposes of the IBI, real estate is considered to be that which is defined as such in the regulations governing the Real Estate Cadastre. As a general rule, the urban or rustic character of a property depends on the nature of the land. Thus, a distinction must be made between land of an urban nature, land of a rustic nature, and land that includes real estate with special characteristics. Likewise, the constructions are urban or rustic depending on the nature respectively urban or rustic of the land on which they are located.

 

 

Passive subject

Taxpayers are natural and legal persons and entities referred to in the General Tax Law Article 35.4, who hold the ownership of the right that, in each case, constitutes the taxable event.

       

Transmission condition

In the case of changes in ownership of the rights that constitute the taxable event for this tax, the properties that are the object of the rights are subject to the payment of all the tax quotas, under a regime of subsidiary responsibility.

Notaries must request information and expressly warn the parties in the documents they authorise about:

  1. the outstanding debts for the IBI associated with the property being transferred;
  2. the period of time available to present the tax return when this obligation subsists due to the failure to present the cadastral reference of the property.
  3. the effect of the goods on the payment of the tax liability;
  4. the liabilities that may be incurred in the event of failure to submit declarations, late submissions or submission of false, incomplete or inaccurate declarations .

       

Article 35.4 Entities

The co-participants or co-owners of the entities referred to in the General Tax Law Article 35.4 are jointly and severally liable for the tax liability in proportion to their respective shares, if they are registered as such in the Real Estate Cadastre. Otherwise, liability is in equal parts.

 

        Taxable income

The taxable base is made up of the cadastral value of the real estate, which is determined, notified and subject to challenge in accordance with the regulations of the Real Estate Cadastre.

 

        Settlement basis

The taxable amount is the result of a reduction in the tax base of certain properties by applying the rules set out below.

       

Scope of application

The reduction is applied ex officio, without the need for a request by the taxpayer, to the taxable base of urban property that is in one of the following situations:

  1. Its cadastral value has increased as a result of general collective valuation procedures due to the application of
  2. the first total paper of values approved after 1-1-1997;
  3. successive total presentations of approved values after the period corresponding to a previous reduction has elapsed.
  4. They are located in municipalities where a value report has been approved that has already led to a reduction in the values mentioned in the previous section and before the expiry of the period of the report they see their cadastral values altered as a result of procedures:
  5. of collective evaluation;
  6. of registration by means of declarations, communications, applications, correction of discrepancies and cadastral inspection.

In principle, this reduction is also applicable with respect to rustic properties under the terms set out above for urban properties, but the regulations on the payable base are suspended for this type of property until the date of application is established by law.

The reduction is only applicable to properties with special characteristics when the cadastral value resulting from the application of a new special value statement is more than twice the value previously assigned to the property as such. In the absence of this value, 40% of the value resulting from the new presentation is taken as such. This reduction is not applied with respect to the increase in the taxable base of the properties resulting from the updating of their cadastral values by application of the coefficients established in the LPG.

       

For the purposes of determining the net base, the following rules must be taken into account:

  1. In collective valuation procedures, it is the responsibility of the General Directorate of Cadastre, and can be appealed before the economic-administrative State courts.
  2. If the taxable base results from the processing of declaration, communication, application, correction of discrepancies and cadastral inspection procedures, it is the responsibility of the local council. However, this will be carried out by the General Directorate of Cadastre, unless the respective local council informs it that this competence will be exercised by it before the end of February of the year in which it assumes said competence.

Period of application

As a general rule the period of application of the reduction is 9 years from the entry into force of the new cadastral values.

However, there are some exceptions to this general rule, and a distinction is made according to the increase in cadastral values that occurs as a result of

– A general collective assessment procedure before the end of the period of a previous reduction. In this case:

– the right to the application of the rest of the previous reduction that was being applied is extinguished; and

– the calculation of a new reduction period starts.

– A collective valuation procedure of a partial or simplified nature, or as a result of a registration procedure by means of declarations, communications, applications, correction of discrepancies or cadastral inspection before the end of the period of a previous reduction, in which case:

– a new reduction period is not counted; and

– the reduction coefficient applied to the buildings concerned takes the value corresponding to the rest of the buildings in the municipality.

       

Amount

The amount of the reduction decreases annually and is the result of applying a reduction coefficient, unique for all the buildings in the municipality, to an individual reduction component, calculated for each building.

 

Reduction Coefficient

Year 1

0,9

Year 2

0,8

Year 3

0,7

Year 4

0,6

Year 5

0,5

Year 6

0,4

Year 7

0,3

Year 8

0,2

Year 9

0,1

Year 10

0

To determine the individual component of the reduction, as a general rule, the positive difference between the new cadastral value -only the first component in the case of rural properties- corresponding to the property in the first year in which the reduction is applied and its base value is taken, which, as a general rule, is the net base for the year immediately prior to the entry into force of the new cadastral value. There are certain specific cases based on alterations to the cadastral description before the new collective valuation takes place.

It can be said that this component is the positive difference between the new taxable base and the old taxable base, and that the coefficient corresponding to the year is applied to this component in order to determine the new taxable base.

Single component: new cadastral value – base value (settlement basis of the previous year)

Amount of reduction = individual component × reduction coefficient

       

When an increase in cadastral values occurs before the end of the period of an ongoing reduction and this is due to a partial or simplified collective valuation procedure, the positive difference between the new cadastral value and the base value must be divided by the last applied reduction coefficient. Such a division also occurs if the updating of the cadastral values by application of the coefficients established in the State Budget Law determines a decrease in the tax base.

Amount of reduction = (Individual component/Correction coefficient year n) × Reduction coefficient year n+1

       

Notification

The notification of the net base is made together with the notification of the tax base.

In collective valuation procedures, the notification of the net base must include the reason for the reduction applied. For this purpose, the base value that corresponds to the property must be indicated, as well as the amounts of the reduction and the net base for the following years:

– for general procedures: the first year of validity of the new cadastral value in the IBI;

– for partial and simplified procedures: the exercise in which it is notified.

 

       

Tax liability

For the calculation of the tax liability, it should be taken into account that:

  1. the full amount is the result of applying the tax rate to the payable base;
  2. the liquid quota is obtained by subtracting from the total quota the amount of the legally stipulated allowances; and
  3. there may be certain surcharges on the tax liability.

       

Tax rate

The Law differentiates the tax rates applicable to urban and rural real estate from those applicable to real estate with special characteristics.

       

  1. Urban and rural real estate

The minimum – and supplementary – legal rates, as well as the maximum rates applicable to this type of property are as follows:

 

Types of properties

Minimum

Maximum

Urban properties

0,4%

1,10%

Rustic properties

0,3%

0,90%

A number of circumstances have been envisaged in which local councils may increase the above tax rates by the percentage points indicated for each case:

Type of municipality

PERCENTAGE POINTS

Urban

Rustic

Capital of province or autonomous community

0,07

0,06

The urban collective surface public transport service is provided

0,07

0,05

Local councils provide more services than those to which they are obliged under Law 7/1985 Article 26

0,06

0,06

The land of rustic nature represents more than 80% of the total surface of the term

0,15

Within the above limits, local councils may set different rates for urban real estate, excluding those for residential use – to which a surcharge is applied – depending on the uses established in the cadastral regulations for the valuation of buildings, up to a maximum of 10% of the urban real estate in the municipal area that, for each use, has the highest cadastral value. To this end, the tax ordinance must indicate the corresponding value threshold for each or every use, above which the increased rates are applicable.

In municipalities where new cadastral values for rustic and urban property resulting from general collective valuation procedures come into force, municipalities may exceptionally establish, for a maximum period of 6 years, reduced tax rates that may not be less than 0.1% for urban property and 0.075% for rustic property.

If municipal boundaries are altered, local councils must apply the tax rate in force in the municipality of origin to rural and urban property that becomes part of their municipal boundaries, unless they agree to establish a different rate.

       

(b) Real estate with special characteristics . The tax rate applicable to this category of property is 0.6% and is of a supplementary nature.

The municipalities can establish a differentiated rate for each group of this category of goods existing in the municipality, which cannot be less than 0.4% or more than 1.3%.

       

Surcharges

The possibility of establishing and requiring certain surcharges on the tax liability in favour of

  1. Local councils can establish and demand a surcharge of up to 50% of the net tax liability for permanently unoccupied residential property. Within this limit, local councils may determine by tax ordinance a single surcharge or several surcharges depending on the length of the period of unoccupancy of the property.
  2. Metropolitan areas may establish a surcharge of up to 0.2% on the tax liability (taxable base of the surcharge) in respect of property located in their territory. This percentage must be unique for all these properties.

       

Tax period and accrual

The tax accrues on the first day of the tax period which coincides with the calendar year.

The facts, acts and businesses that must be declared or notified to the Real Estate Cadastre are effective in the accrual of the IBI immediately after the moment they produce cadastral effects.

       

Management

The tax is managed on the basis of the information contained in the Cadastre Register and other documents expressing its variations drawn up for this purpose by the General Directorate of Cadastre.

The Padrón  or  cadastral register is formed annually for each municipal district containing the information on real estate required to settle the tax. The data contained in it and in the other documents expressing its variations must be included in the collection lists, income documents and proof of payment of the tax.

       

Presentation to the Real Estate Cadastre of the declarations

Taxpayers must submit declarations leading to the registration in the Real Estate Cadastre of alterations to the property subject to cadastral registration and which are of significance for the purposes of the Real Estate Tax.

The Tax on Construction, Installations and Works (ICIO)

. Tax on Construction, Installations and Works

The Tax on Construction, Installations and Works (ICIO) is an indirect, municipal, voluntary establishment and management tax

       

Taxable event

The taxable event for the Tax on Construction, Installations and Works is constituted by the carrying out, within the municipal area, of any construction, installation or work for which a building or urban development licence is required, whether or not it has been applied for, and if so, whether or not it has been obtained yet, provided that it is issued by the executing municipality.

       

Cases  of non-subjection

Although the Local Finance Law does not expressly regulate the cases of non-subjection, case law and administrative doctrine have basically shaped them based on the analysis of the requirement or not of the corresponding license. Thus, we highlight, among others, the following cases:

  1. Illegal constructions or works, as long as their destination can only be demolition because they have been carried out without a license and are not susceptible to legalization.
  2. The demolition works because their purpose is not to build a specific building, but to leave the land free for any urban use.
  3. Building work on a municipal property parcel acquired by auction, in which the successful bidder undertakes to build in accordance with a programme and project of work previously drawn up and approved by the municipality, as the building licence had already been granted when the conditions of the auction and the project were approved.
  4. The urbanization works carried out in execution of an urbanization project do not need a town planning license, since the project itself is the act that legitimizes them, and it is an act of execution of the urban planning instruments that are immediately executive.

       

Passive subjects

They are ICIO taxpayers:

– As taxpayers, individuals, legal entities or entities of the General Tax Law Article 35.4 owners of the construction, installation or work, regardless of whether or not they are owners of the property on which it is carried out. For these purposes, the owner of the construction, installation or work is considered to be the one who bears the expenses or cost involved in carrying it out.

– When the construction, installation or work is not carried out by the taxpayer, those who apply for the licence or carry out the construction, installation or work are considered to be substitutes for the taxpayer. They are entitled to demand from the taxpayer the amount of the tax liability paid.

 

       

Taxable income

The taxable base for the Tax on Construction, Installations and Works is made up of the real and effective cost of the construction, installation or work, understood as the cost of its material execution regardless of the value of what is built or installed.

The following items are excluded from the tax base:

– VAT and other similar taxes specific to the special regimes;

– fees, public prices and other local public property services related to construction, installations and works;

– professional fees;

– the contractor’s business benefit;

– any other concept that does not strictly integrate the cost of material execution.

 

       

Tax liability

The tax liability for Construction, Installations and Works Tax is the result of applying to the taxable base the tax rate set by the municipality, which cannot exceed 4%. The local council cannot establish different tax rates for different types of construction, installations or works.

 

Accrual

The Tax on Construction, Installations and Works is a tax that is payable instantly at the time of commencement of the construction, installation or works, even if the licence has not been obtained.

 

Management

The power to manage the tax lies entirely with each local authority, which may require it as a self-assessment, if this is established in the respective tax ordinance.

Two types of settlements can be distinguished:

– Interim settlement on account. This is obligatory when the mandatory licence is granted or when, having not yet applied for, granted or refused the aforementioned licence, construction, installation or work begins. The tax base of this settlement is made up of

  1. the budget submitted by the persons concerned, endorsed by the relevant official body where this is mandatory; or
  2. the indexes or modules that the tax ordinance establishes for this purpose.

– Final settlement. Once the constructions, installations and works have been completed, in view of those actually carried out and their real and effective cost, the municipality, by means of the appropriate administrative verification, must carry out the definitive settlement, modifying, if necessary, the taxable base for the provisional settlement. The taxable person must be reimbursed or required to pay the corresponding amount, as appropriate.

The Tax on the Increase in Value of Urban Land (IIVTNU)

 

The Tax on the Increase in Value of Urban Land (IIVTNU) is a direct, instantly accruing, so non-periodic,  municipal tax, voluntarily established by the local councils, which are responsible for its management.

       

Taxable event

The taxable event of the IIVTNU is the obtaining of an increase in value:

  1. by land of an urban nature; or
  2. for the lands integrated in the real estate of special characteristics.

In both cases the reference value is the one they had for the purposes of the IBI. On the other hand, it does not matter whether or not the land is included in the Cadastre and the Municipal Register as belonging to one of these two categories.

The increase in value can be seen as a consequence:

  1. of the transfer of its property by any title, whether for valuable consideration or free of charge, inter vivos or mortis causa; or
  2. of the constitution or transfer of any right in rem of limited enjoyment of dominion over the said lands.

       

Cases  of non-subjection

The Local Finance Act includes the following cases of non-liability:

  1. Transfer of land considered rustic for the purposes of the IBI.
  2. Contributions of property and rights made by the spouses to the marital partnership, the awards made in their favour and in payment thereof and the transfers made to the spouses in payment of their common assets.
  3. Transfers of real estate between spouses or in favour of their children in compliance with judgements in cases of nullity, marital separation or divorce, regardless of the marital regime.

 

Cases  where there is no increase in value

Jurisprudence and doctrine has not been clear regarding the treatment of transmissions in which there is no increase in value -the loss of assets being credited-. In some cases it has been considered that the taxable event was always produced, being applicable for the calculation of the taxable base, in any case, the provisions of the Law of Local Treasuries Article 107.2 , while, in other cases it was understood that the taxable event of the tax was not produced and this could not be demanded. It is this second opinion that has been gaining strength.

The Constitutional Court has been resolving the issue by declaring the unconstitutionality and nullity of certain provisions of the Local Finance Law, insofar as they subject to taxation situations of no increase in value.

As a consequence of the doctrine established by the Constitutional Court, there is currently a Bill to amend the Local Finance Law, which adds a new case of non-applicability of the law to land transfers for which the taxpayer proves the non-existence of the increase in value, due to differences between the real values of transfer and acquisition of the land.

 

IIVTNU. Cases  where the fee to be paid is greater than the increase obtained

The Constitutional Court declares the unconstitutionality of the Local Finance Law, Article 107.4, regarding the determination of the taxable base, when the resulting fee to be paid is higher than the increase actually obtained by the taxpayer.

The Constitutional Court considers the question of unconstitutionality raised by the court that must resolve the appeal filed by a taxpayer who acquired a home that he later transferred for a capital gain. Since the tax liability resulting from the tax assessment made by the competent municipality is higher than the capital gain obtained, it filed an appeal for reversal and, subsequently, the corresponding contentious administrative appeal before this court.

The court brought the matter up on the grounds that the articles of the Local Finance Act relating to the tax base (Local Finance Act, Article 107) and the rate of full and liquid levy and quotas (Local Finance Act, Article 108) could be contrary to the principles of economic capacity and progressiveness, as well as the prohibition of confiscation.

The Constitutional Court considers that the situation in question is not that of the taxation of a situation of no increase in the value of land of an urban nature, nor is it that of a decrease. Rather, by applying the tax rate to the taxable income calculated in accordance with the tax regulations, the derived tax liability exceeded 100% of the wealth actually generated.

This is requiring the taxable person to fulfil his duty to contribute to the support of public expenditure by imposing an excessive or exaggerated burden. It is one thing to tax a potential income – the increase in value that presumably occurs over time in all land of an urban nature – and quite another to tax an unrealistic income, because, if that were the case, the provision in question would be contrary to the principle of economic capacity, a principle that breaks down in those cases where the economic capacity taxed is non-existent or fictitious (TCo 26/2017 ; 59/2017 ; 72/2017).

Any tax that subjects non-existent wealth to taxation contrary to the principle of economic capacity, or that exhausts taxable wealth under the pretext of the duty to contribute to the support of public expenditure, would also be incurring a confiscation result (TCo 26/2017). Therefore, in those cases in which the application of the annual percentage applicable to the cadastral value of the land at the time of accrual (Law of Local Treasuries, Article 107.4) results in an increase in value greater than that actually obtained by the taxpayer, the resulting tax liability, for the part exceeding the benefit actually obtained, corresponds to the illegal taxation of non-existent income contrary to the principle of economic capacity and the prohibition of confiscation.

The Tribunal therefore decides to consider the question of unconstitutionality and to declare that the Law of Local Treasuries, Article 107.4, is unconstitutional because it violates the principle of economic capacity and the prohibition of confiscation (Const Article 31.1), in those cases in which the fee to be paid is greater than the increase in assets obtained by the taxpayer.

The unconstitutionality cannot be extended to the Ley Haciendas Locales Article 108.1 (tax rate), since the declared defect is found exclusively in the way of determining the taxable base and not in the way of calculating the tax liability.

The situations that may be reviewed on the basis of this ruling are those that, at the date of publication of the ruling, have not become final because they have been challenged in time and form and have not yet been the subject of a final administrative or judicial decision.

 

IIVTNU. Proof of sale at a loss

To prove the existence of a loss in the transfer of the land, the values set out in the deeds of acquisition and transfer of the land can be used.

The Constitutional Court upholds the appeal for protection lodged by an entity that submitted a request to the municipality for the return of undue income for the amount paid under the IIVTNU. Along with the request, it provided the deeds of acquisition and transfer, which reflected a lower sales value than the purchase value.

Once the application was rejected, the corresponding contentious-administrative appeal was lodged, arguing that there was no increase in the value of the property transferred. To this end, documentary and judicial expert evidence was requested, the latter being inadmissible on the grounds that the judicial body considered it to be inappropriate evidence which, moreover, the party had been able to provide and did not do so. The contentious-administrative appeal was dismissed on the grounds that the Court had not established that the increase in value of the land subject to the tax had not occurred.

For the Constitutional Court, when it handed down its judgement, the judicial body already considered that the loss  could be proved, so that, according to its own criteria, the evidence requested was relevant and pertinent.

The violation of the right to effective judicial protection  is produced by the lack of valuation of the deeds of sale, the veracity of which was not contested by the city council, so that their valuation by the judicial body was in this case unavoidable.

 

 

 

       

Exemptions

The exemptions applicable in the IIVTNU are the following:

Increases in value brought about by the following acts are exempt in the IIVTNU:

  1. Constitution and transmission of easement rights.
  2. Transfers of property located within the perimeter defined as a historical-artistic complex or which has been individually declared of cultural interest, in accordance with the provisions of Law 16/1985, provided that the owners or holders of real rights can prove that they have carried out conservation, improvement or rehabilitation work on the aforementioned properties.
  3. Transfers made by natural persons on the occasion of the giving in payment of the habitual residence of the mortgagor or guarantor thereof, for the cancellation of debts guaranteed by a mortgage that falls upon them, contracted with credit institutions or any other entity that, in a professional manner, carries out the activity of granting loans or mortgage credits. Also exempt are transfers of dwellings in which the above requirements are met, carried out in judicial or notarial foreclosures.
  4. Donations, donations and contributions of land to entities benefiting from the tax incentive system for patronage.

 

IIVTNU. Exemption from the transfer of a property by dation in payment

After a marriage break-up without liquidation of the marital partnership, the transfer of a property on the occasion of a dation in payment is only exempt in the IIVTNU for the part of the tax debt of the spouse who has been registered in an uninterrupted way during at least the 2 years previous to the transfer or from the moment of the acquisition if this period is less than 2 years, in proportion to the percentage of ownership of the property.

As a result of their marital breakdown, two spouses have transferred a property through a dation in payment, although only one of them has been registered at the property’s address during the 2 years prior to the transfer of the property.

In addition, the consultant indicates that the other requirements for applying the exemption have been met, and that the marital partnership has not been liquidated.

The IIVTNU exempts the increases in value that occur as a result of transfers made by individuals on the occasion of the transfer in payment of the habitual residence of the mortgagor or guarantor of the same, for the cancellation of debts guaranteed by a mortgage that falls on the same, contracted with credit institutions or any other entity that, in a professional manner, carries out the activity of granting loans or mortgage credits (Local Finance Law Article 105.1.c). One of the requirements for the application of this exemption is that the transfer of the main residence of the individual who is the mortgagee or guarantor of a mortgage constituted on said residence must be carried out, considering the main residence, for these purposes, to be that in which the taxpayer has been registered continuously for at least 2 years prior to the transfer or from the time of acquisition if said period is less than 2 years.

The exemption is only applicable on the occasion of the dation in payment with respect to the tax debt corresponding to the spouse who does comply with the previous requirement, in proportion to the percentage of ownership of the dwelling. The exemption does not apply to the other spouse who does not meet the aforementioned requirement.

       

Passive subjects

 

 The status of the taxable person subject to the IIVTNU falls on:

  1. the purchaser of the land or person in whose favour the right in rem is constituted or transferred when the transfer of land or the constitution or transfer of the rights is made free of charge; and
  2. on the transferor of the land or the person or entity constituting or transferring the right in rem of enjoyment, where this is done for consideration.

If the taxpayer is an individual not resident in Spain, the person or entity that acquires the land, or in whose favour the right in rem is constituted or transferred, is the substitute taxpayer.

 

       

Taxable income

The tax base consists of the increase in the value of urban land shown at the time of accrual and experienced over the maximum period of 20 years. This increase is determined by applying to the value of the land at the time of accrual a percentage for the calculation of which the rules must be taken into account.

The Constitutional Court has declared the unconstitutionality and nullity of the Local Finance Law, Article 107.1, but only to the extent that it subjects to taxation situations of non-existence of increases in value .  For its part, the Supreme Court understands that this ruling declares this provision to be partially unconstitutional, considering it to be constitutional and fully applicable in all those cases in which the taxpayer has not been able to prove that the transfer of ownership of the land by any title -or the creation or transfer of any right in rem of enjoyment, limiting the ownership of the land in question-, has not shown an increase in value.

 

 

Land value

The value of the land at the time of accrual of the IIVTNU, according to the operation carried out is as follows:

Ground transfers. Its value at the time of accrual coincides with its cadastral value. However, when the value is the result of a valuation report that does not reflect changes in approach approved after the approval of the report, the settlement made by taking the cadastral value is provisional, and a definitive settlement is made later by taking the cadastral value obtained from the collective valuation procedures that take into account the changes. The value is that referred to on the date of accrual, applying, where applicable, the updating coefficients established for this purpose in the General State Budget Law.

If a piece of land does not have its cadastral value determined at the time the tax accrues, the local council can make the settlement when the cadastral value is determined, referring the value to the time of accrual.

The Constitutional Court has declared the unconstitutionality and nullity of the Local Finance Law Article 107.2.a , but only to the extent that it subjects to taxation situations of non-existence of increases in value.  

– Constitution and transfer of the right to raise one or more floors above a building or land or the right to carry out construction under the ground without implying the existence of a real right of superficies. The part of the cadastral value of the land is taken that represents, with respect to the same, the module of proportionality established in the transfer deed or, in its absence, that which results from establishing the proportion between the surface area or volume of the floors to be built in the above ground or subsoil and the total surface area or volume built once these have been constructed.

For built up land, the cadastral value to be taken into account is exclusively that of the land, not that of the construction.

Constitution and transmission of real rights of enjoyment that limit the domain. The value is taken to be that part of the cadastral value of the land which represents, with respect to this, the value of the said rights calculated by application of the rules set out in the ITP and AJD.

Forced expropriation. The value to be considered is the part of the price that corresponds to the land. However, when the value defined for transmission purposes is lower, the latter shall prevail over the justification.

       

       

Percentage

On the value of the land at the time of accrual, the annual percentage determined by each municipality must be applied, without it exceeding the following limits

Period (years)

Percentage

From 1 to 5

3,7

Up to 10

3,5

Up to 15

3,2

Up to 20

3,0

The percentage to be applied is determined by multiplying the annual percentage in this table that corresponds to the specific case, by the number of years in which the increase in the taxable value has been shown, which is the period between the date of the tax to be liquidated and the date of the accrual of the previous transfer that has been subject to the tax.

The generation period of the capital gain must be calculated by whole years computed by default, considering only the full years that make up the period, without taking into account the fractions of the year of the said period. Capital gains generated in a period of less than one year are not taken into account and those generated in a period of more than 20 years must be understood to have been generated in 20 years in any case.

 

       

Tax liability

The full amount of the IIVTNU is the result of applying the corresponding tax rate to the tax base. For these purposes, the local authorities may set a single tax rate or a rate for each of the generation periods, without the rate or rates set being able to exceed the 30% limit.

       

Allowances

The most relevant for us  is the allowance performed by cause of death in favor of descendants and adoptees, spouses and ascendants and adopters, which may be up to 95% on the full quota.

 

 

       

Accrual

The IIVTNU arises:

  1. When ownership of the land is transferred, whether for valuable or lucrative purposes, between living persons or by reason of death: on the date of transfer.
  2. When constituting or transferring any real right of limited enjoyment of the domain: on the date the constitution or transfer takes place.

In the particular cases of  Acts or contracts subject to conditions, once the condition has been qualified (Civil Code Article 1113 et seq.), it must be differentiated according to the condition:

  1. suspension: the tax is not due until it is paid; or
  2. Resolutory: the tax is required, subject to the condition that, once the condition is met, the amount is returned to the subject.

 

       

Tax management

The rule establishes a series of obligations for the taxable person, consisting of:

  1. to submit the return, where a self-assessment is not established, within 30 working days of the date on which the chargeable event occurs, which is 30 working days in the case of inter vivos acts and 6 months, which may be extended to one year at the request of the taxable person in the case of acts of mortis causa; and
  2. pay the tax, once the settlement is notified by the municipal administration.

When the local council, through the tax ordinances, has established the self-assessment, the payment of the tax debt must be made, within the 30 days or 6 months (extendable) indicated above.

   

Formal obligations of other persons

In addition to the obligations of taxable persons, others are established for the following persons:

– The following persons are obliged to notify the municipality of the occurrence of the taxable event, regardless of the formal obligations of the taxable persons and within the same time limit:

– in acts and contracts carried out for profit between living persons, the donor or the person constituting or transferring the right in rem in question;

– in acts and contracts performed for consideration, the acquirer or the person in whose favour the right in rem in question is constituted or transferred.

– The notaries must send to the respective town halls, within the first 15 days of each quarter:

  1. an index or list comprising all the documents authorised by them in the previous quarter containing facts, acts or legal transactions evidencing the occurrence of the taxable event, with the exception of acts of last will;
  2. a list of the private documents comprising such facts, acts or legal transactions that have been submitted to them for knowledge or legitimation of signatures.

They must include the cadastral reference of the property when the aforementioned reference corresponds to the property to be transferred.

In addition, notaries must expressly warn the parties to the proceedings in the documents they authorise of the following matters:

  1. the time limit for the taxable persons to submit the return; and
  2. the responsibilities they may incur for failure to file.
IIVTNU. Cases where there is no increase in value

 

Jurisprudence and doctrine has not been clear regarding the treatment of transmissions in which there is no increase in value -the loss of assets being credited-. In some cases it has been considered that the taxable event was always produced, being applicable for the calculation of the taxable base, in any case, the provisions of the Law of Local Treasuries Article 107.2 , while, in other cases it was understood that the taxable event of the tax was not produced and this could not be demanded. It is this second opinion that has been gaining strength.

The Constitutional Court has been resolving the issue by declaring the unconstitutionality and nullity of certain provisions of the Local Finance Law, insofar as they subject to taxation situations of no increase in value.

As a consequence of the doctrine established by the Constitutional Court, there is currently a Bill to amend the Local Finance Law, which adds a new case of non-applicability of the law to land transfers for which the taxpayer proves the non-existence of the increase in value, due to differences between the real values of transfer and acquisition of the land.

IIVTNU. Cases where the fee to be paid is greater than the increase obtainedo va aquí

The Constitutional Court declares the unconstitutionality of the Local Finance Law, Article 107.4, regarding the determination of the taxable base, when the resulting fee to be paid is higher than the increase actually obtained by the taxpayer.

The Constitutional Court considers the question of unconstitutionality raised by the court that must resolve the appeal filed by a taxpayer who acquired a home that he later transferred for a capital gain. Since the tax liability resulting from the tax assessment made by the competent municipality is higher than the capital gain obtained, it filed an appeal for reversal and, subsequently, the corresponding contentious administrative appeal before this court.

The court brought the matter up on the grounds that the articles of the Local Finance Act relating to the tax base (Local Finance Act, Article 107) and the rate of full and liquid levy and quotas (Local Finance Act, Article 108) could be contrary to the principles of economic capacity and progressiveness, as well as the prohibition of confiscation.

The Constitutional Court considers that the situation in question is not that of the taxation of a situation of no increase in the value of land of an urban nature, nor is it that of a decrease. Rather, by applying the tax rate to the taxable income calculated in accordance with the tax regulations, the derived tax liability exceeded 100% of the wealth actually generated.

This is requiring the taxable person to fulfil his duty to contribute to the support of public expenditure by imposing an excessive or exaggerated burden. It is one thing to tax a potential income – the increase in value that presumably occurs over time in all land of an urban nature – and quite another to tax an unrealistic income, because, if that were the case, the provision in question would be contrary to the principle of economic capacity, a principle that breaks down in those cases where the economic capacity taxed is non-existent or fictitious (TCo 26/2017 ; 59/2017 ; 72/2017).

Any tax that subjects non-existent wealth to taxation contrary to the principle of economic capacity, or that exhausts taxable wealth under the pretext of the duty to contribute to the support of public expenditure, would also be incurring a confiscation result (TCo 26/2017). Therefore, in those cases in which the application of the annual percentage applicable to the cadastral value of the land at the time of accrual (Law of Local Treasuries, Article 107.4) results in an increase in value greater than that actually obtained by the taxpayer, the resulting tax liability, for the part exceeding the benefit actually obtained, corresponds to the illegal taxation of non-existent income contrary to the principle of economic capacity and the prohibition of confiscation.

The Tribunal therefore decides to consider the question of unconstitutionality and to declare that the Law of Local Treasuries, Article 107.4, is unconstitutional because it violates the principle of economic capacity and the prohibition of confiscation (Const Article 31.1), in those cases in which the fee to be paid is greater than the increase in assets obtained by the taxpayer.

The unconstitutionality cannot be extended to the Ley Haciendas Locales Article 108.1 (tax rate), since the declared defect is found exclusively in the way of determining the taxable base and not in the way of calculating the tax liability.

The situations that may be reviewed on the basis of this ruling are those that, at the date of publication of the ruling, have not become final because they have been challenged in time and form and have not yet been the subject of a final administrative or judicial decision.

IIVTNU. Proof of sale at a loss

 

To prove the existence of a loss in the transfer of the land, the values set out in the deeds of acquisition and transfer of the land can be used.

The Constitutional Court upholds the appeal for protection lodged by an entity that submitted a request to the municipality for the return of undue income for the amount paid under the IIVTNU. Along with the request, it provided the deeds of acquisition and transfer, which reflected a lower sales value than the purchase value.

Once the application was rejected, the corresponding contentious-administrative appeal was lodged, arguing that there was no increase in the value of the property transferred. To this end, documentary and judicial expert evidence was requested, the latter being inadmissible on the grounds that the judicial body considered it to be inappropriate evidence which, moreover, the party had been able to provide and did not do so. The contentious-administrative appeal was dismissed on the grounds that the Court had not established that the increase in value of the land subject to the tax had not occurred.

For the Constitutional Court, when it handed down its judgement, the judicial body already considered that the loss  could be proved, so that, according to its own criteria, the evidence requested was relevant and pertinent.

The violation of the right to effective judicial protection  is produced by the lack of valuation of the deeds of sale, the veracity of which was not contested by the city council, so that their valuation by the judicial body was in this case unavoidable.

IIVTNU. Exemption from the transfer of a property by dation in payment

 

After a marriage break-up without liquidation of the marital partnership, the transfer of a property on the occasion of a dation in payment is only exempt in the IIVTNU for the part of the tax debt of the spouse who has been registered in an uninterrupted way during at least the 2 years previous to the transfer or from the moment of the acquisition if this period is less than 2 years, in proportion to the percentage of ownership of the property.

As a result of their marital breakdown, two spouses have transferred a property through a dation in payment, although only one of them has been registered at the property’s address during the 2 years prior to the transfer of the property.

In addition, the consultant indicates that the other requirements for applying the exemption have been met, and that the marital partnership has not been liquidated.

The IIVTNU exempts the increases in value that occur as a result of transfers made by individuals on the occasion of the transfer in payment of the habitual residence of the mortgagor or guarantor of the same, for the cancellation of debts guaranteed by a mortgage that falls on the same, contracted with credit institutions or any other entity that, in a professional manner, carries out the activity of granting loans or mortgage credits (Local Finance Law Article 105.1.c). One of the requirements for the application of this exemption is that the transfer of the main residence of the individual who is the mortgagee or guarantor of a mortgage constituted on said residence must be carried out, considering the main residence, for these purposes, to be that in which the taxpayer has been registered continuously for at least 2 years prior to the transfer or from the time of acquisition if said period is less than 2 years.

The exemption is only applicable on the occasion of the dation in payment with respect to the tax debt corresponding to the spouse who does comply with the previous requirement, in proportion to the percentage of ownership of the dwelling. The exemption does not apply to the other spouse who does not meet the aforementioned requirement.