Community Property and Eminent Domain in Spanish Civil Code
Community Property and Eminent Domain
Community and Condominiums
Articles 392 to 406 of the Spanish Civil Code govern community property. Article 392 states that “when there is community ownership of a thing or right, it belongs in a situation of several people undivided.” In the absence of a contract or key principles, a community of property is governed by the provisions of this title. This provision discusses ownership of a thing and ownership of a right, meaning that the community is the ownership gender and species. The former may encompass all kinds of ownership rights, while the latter only applies to specific things that are the subject of ownership.
A community exists when a right is common to several subjects. It can be:
- Singular or universal: As it relates to certain unique rights of way or as a heritage.
- Conventional or incidental: According to whether unit-holders have formed it voluntarily or it has arisen from another fact, such as hereditary succession in favor of several heirs, or confusion or mix of movables.
- Regular or forced: Characterized by a self-division rule.
Fees for Community or Hand in Common
The first Roman community is also called the German community. In the former, the co-owners are united by the unity of the thing, and we have an equity interest. In the latter, there is a personal bond between the partners, subordinated to the actual relationship.
In the first, holders have a share that represents the extent of their right to freely dispose of it. In the second, a personal or family relationship exists between subjects, excluding the free replacement of any of them. This prevents the existence of a tradable quota, although the will of these participants may differ. They should act together, so agreements should be adopted in common hand.
Rights in Relation to the Common Thing
These rights include use, enjoyment, conservation, administration, legal defense, claim, alteration, and disposal of a common thing.
Article 394 provides: “Each part can serve as common things, provided you have them according to their destination so as not to prejudice the interest of the community, or prevented from using it as his co-partners right. Although the right of each owner is limited to an undivided share, it is not separate from the ownership of the property taken as a unit, for the duration of the undivided, with the result that no owner can have a precarious situation regarding the common thing or part of it.”
Article 393 states that the parties should share both the benefits and burdens in proportion to their quotas. These are presumed to be equal until proven otherwise. Each co-owner has the right to force participants to contribute to the cost of maintenance of the common thing and can only be exempted from this obligation by renouncing the party belonging to the domain.
For the administration of the common thing, resolutions are adopted by a majority, as stated in Article 398 of the Spanish Civil Code. It mandates that resolutions for the administration and better enjoyment of the common thing shall be adopted by the majority of members. A majority is reached not only when the agreement is taken by the participants representing the largest number but also when it represents the largest amount of interest that is the subject of that community.
Rights of Investors on their Share
Article 399 of the Civil Code states that every owner will have full ownership of their part as well as the corresponding fruit. They may alienate, assign, or mortgage it, and even substitute another in its use unless it involves personal rights.
However, the effect of the sale and mortgage in relation to the investors is limited to the portion awarded to the division upon leaving the community.
Finally, ownership is extinguished when proceeding to the division of the common thing. We must distinguish whether something is divisible or indivisible.
Eminent Domain
Eminent domain is an act of public law under which the State or an individual acting on behalf of the state acquires an estate after payment of compensation.
A record of eminent domain requires:
- A declaration of public utility or social interest.
- An agreement between the administration and the citizen.
- A fair price.
- Payment of compensation.
Processing and Basic Documentation for Eminent Domain
The process involves a base project ordered by a superior with the authority to do so and written by a competent professional. The project must contain:
- A descriptive memory of the object to be achieved, with its location, enumeration and analysis of possible alternatives, choice and justification of the most suitable choice, description of the parts it contains, and supporting calculations.