Easements and Other Real Rights in Property Law

Posted on Aug 21, 2024 in Law & Jurisprudence

The Easement

An easement is a real right of enjoyment, founded in Roman law, by which a tax is imposed on a person (personal servitude) or on a building. It represents the benefit of one property belonging to another owner. The legal institution of slavery comes from Roman law and is characterized by a relationship between two properties (except personal servitude).

The property in whose favor the easement is formed is called the dominant tenement, and the property that suffers the tax is called the servient tenement. Easements must:

  • Fall on reports of others
  • Take a profit or benefit of necessity
  • Be a right inseparable from the farm to which it pertains

An easement is an active or passive real right that limits ownership. Its creation may occur:

  • Autonomously by a power conferred by law (legal easements)
  • Without such regulation (voluntary easements)

Easements do not require a documentary form ad solemnitatem. However, as acts or contracts that aim at the creation, transmission, or modification of rights over immovable property, they should generally be included in a public document. Omission of this formality does not invalidate the easement, as parties may mutually compel its completion. The required forms for the legal act or transaction concerned (donation, will, etc.) must be met.

Easements are registrable securities. Any creation, recognition, modification, transmission, or cancellation of easements and other real rights should be registered. Limited rights, charges, or restrictions of domain, to be enforceable against third parties, must be entered in the registry of the property on which they fall. Additionally, easements are recorded in the registry of the dominant tenement.

Extinguishment of Easements

An easement is extinguished by:

  • The meeting in the same person of the status of the dominant and servient estate owners
  • Renunciation by the owner of the dominant estate
  • Lack of use for 20 years
  • Disappearance of the utility that originated the easement
  • Redemption by both parties
  • Arrival of the stipulated day or condition, if the easements were temporary or conditional

Regulation of Easements

Easements are regulated by the Civil Code. Among the legal easements, the easements of light and view and party walls deserve special attention due to their commonality.

Party Walls

These easements shall be governed by the following rules, local ordinances, and customs, as long as they do not oppose or are not covered in these. Sharecropping is the legal situation that exists when two farms are separated by a common element, which belongs to the owners of those.

Sharecropping easement is presumed until there is a title, outward sign, or proof to the contrary in:

  • The dividing walls of buildings adjacent to the common point of elevation
  • The dividing walls of gardens or yards situated in town or in the countryside
  • Fences, fences, and hedges that divide rural property

The owner of a party wall can raise it at their own expense, compensating for any damages occasioned by the work, even if temporary. If the party wall cannot withstand the higher elevation, the owner who wants to raise it is required to rebuild it at their own expense. If it is necessary to increase the wall’s thickness, the owner must provide their own land.

Each owner of a party wall may use it in proportion to their rights in the commonwealth. They may build support for their work in the party wall or insert beams up to half its thickness, without preventing the sharing of other mediators. This requires the consent of other stakeholders. If consent is not secured, experts shall determine the necessary conditions to ensure the new work does not prejudice those rights.

Easements of Light and View

The easement of light assumes the existence of holes to allow light from neighboring property, and the easement of view, the opening of windows or holes to enjoy views across the neighboring farm. Any work that impairs or hinders these legal easements is prohibited.

Forced Easements

Forced easements are imposed by law and can occur in two ways:

  1. Automatic: Operational since a particular case arose, such as receiving rainwater from higher estates.
  2. Possibility Granted by Law: Individuals can request the right to impose property taxes on others’ property, such as a right of way. This may or may not be granted to those who need it.

While being forced, servitude may be constituted by the agreement of the parties concerned, as has been repeated on several previous occasions.

Surface Rights

Concept of Surface Right

Surface right is a real right to develop or maintain, temporarily or indefinitely, a building or planting on land owned by another. This right is obtained through:

  • The exercise of building or planting on the land
  • The act of purchasing an existing building or planting on the land

Surface right can also be defined as a property right characterized by the separation of horizontal domain.

Pledge

A pledge is a security interest involving the transfer of possession of a thing to the creditor or a third party to ensure the fulfillment of an obligation.

Characteristics of a Pledge

  • Onus on property: Deprives the debtor of possession, which passes to the creditor or a third party.
  • Empowers the creditor: In case of default, the creditor can sell the pledged thing. However, they cannot keep it due to the prohibition of lex commissoria pacts.
  • Authorizes the creditor: If there is no agreement, the creditor can receive anticrética compensation.

Constitution of a Pledge

The Civil Code requires two conditions for the constitution of a pledge:

  1. Delivery of the thing to the creditor or a third party
  2. Certainty of the date of the original document. If not met, its effectiveness occurs inter partes only.

Obligations of Parties in a Pledge

Once the pledge is constituted, there are obligations for both parties:

  • Creditor:
    • Safeguard the pledged thing as a keeper
    • Refrain from using the pledged thing unless the pledge includes interest. In this case, the creditor will compensate the debtor for any interest perceived or, in excess of two legitimately owed, charged to the capital.
    • Return the pledge when the obligation it guarantees is fulfilled.
  • Debtor:
    • Meet the primary obligation and pay interest (if they coincide in the same person as the principal debtor and collateral)
    • Pay the lender the costs incurred in the preservation and custody of the pledge
    • Ensure the quiet and peaceful possession of the pledged thing for the creditor

Effects of a Pledge

  • Creditor:
    • Obliged to watch over the thing, avoiding abuse
    • Cannot retain the thing to satisfy the claim, except if the debtor incurs another debt while the pledge is retained. In this case, the creditor may extend the deduction until both claims are satisfied.
  • Debtor:
    • Must undergo the pledge until full satisfaction of the credit
    • In case of default, the pledged asset will be sold through a judicial or notarial auction

Requirements and Extinguishment of a Pledge

To make a pledge, the pledgor must have free disposal of the property. For movable property, it must be in traffic and capable of possession. Pledges can guarantee any validly constituted obligation.

A pledge is extinguished by:

  • Fulfillment of the obligation or termination of the debt
  • Unilateral waiver of the warranty by the creditor
  • Loss of the pledged goods
  • Reaching the agreed-upon end date, if applicable

Antichresis

. ARRANTY under which the debtor deliver a thing to his creditor for payment of aunpaid credit with the fruits, natural or civil (interest), that things occur, restoring once debt has been paid. While part of the doctrine is considered a property right, this rating is rejected by some. Meanwhile, a contract antichretic is commonly known as the transfer of property in exchange for money. The same amount of money should be returned to recover the property. Theoretically, the interest of money pays for the use of the property unless otherwise stipulated. L PROCESS foreclosure specialists. It is regulated in Chapter V of the LEC 1 / 2000 in which Article 681 in the regulation are to proceedings to enforce payment of debts secured by a lien or mortgage. This article provides:action to enforce payment of debts secured by pledge or mortgage may be executed directly with the property pledged or mortgaged, subjecting its exercise to the provisions of this title. This process should also where the claim refers only to part of the capital, or when a creditor and debtor have agreed that payment of the claim is made by deferred payments, it is also necessary to consider that in this implementation process are the implementing extra cash. The Mortgage Realty: Characters. According to art. Lh 104, “The mortgage directly and immediately subject the assets to be imposed, regardless of their owner, to fulfill the obligation for whose security was established.” Mortgage is a security right, which subjects a property specifically to responsibility for performance of a debt, allowing for breach thereof, receive the amount of the sale of the property due cash benefit or pecuniary equivalent of debt consisting of money.Constitution: Pursuant to art. 145 for that mortgages are properly voluntary set is required: One. Which have been constituted in a public-Second. That writing has been written in the registry of property. In similar vein the art. 1875 C / c. “It is indispensable for the mortgage to be validly constituted, that the document of the establishment is registered in the Registry since registration Propiedad.Sólo born with actual and mortgage as a lien on the property, ie with respect to third parties. The unregistered mortgage does not exist to any third party claiming rights on the mortgage is agreed finca.Normalmente between the grantor and the creditor, but can also form “says the art. 138 Lh .- “by order of the owner of property on the establishment”. In other words, under this provision, it is possible the creation of mortgage by unilateral declaration of the component, even if not accepted by the creditor. But Art. 141 is clear that the need for acceptance to the mortgage is fully effective.Termination: The mortgage, being right accessory to a claim necessarily dies with him missing credit, also the right of independence garantía.Con the obligation secured by the mortgage is extinguished the various causes of extinguishment of real rights, and in particular the preferential foreclosure, which does expire immediately all charges later, because the property is sold as free of all charges made after it runs.