Property Law in Spain

Posted on Apr 29, 2024 in Law & Jurisprudence

ITEM 11: OCCUPATION

47. Occupation: Concept and Requirements

According to Articles 609 and 610 of the Civil Code (CC), occupation is an original way of acquiring property (not limited real rights) by taking possession of things that have no owner, are appropriated by their nature, and seeking to become a homeowner. The requirements are:

  • Subject: Legal capacity is sufficient, not necessarily the capacity to act. Article 443 CC legitimizes minors to acquire possession, but with the logical requirement of a natural ability to understand and the will to exercise the power of fact. Legal persons acquire property by occupying through their bodies and employees (CC).
  • Object: The object should be appropriable in nature and lack ownership. This means that the subject of adverse possession may be things that are out of commerce (public domain, for example) or those that have no owner. As for real estate, it cannot be acquired by occupation because any real estate lacking an owner belongs to the Central Government, according to the Heritage Act in Public Administration.

49. Hidden Treasure and Finding: Concept and Scheme

Article 352 CC defines treasure, for the purpose of the law, as any hidden and unknown deposit of jewels, money, or luxury items, whose membership does not appear legitimate.

Article 351 CC states that the treasure trove belongs to the owner of the land where it was found. If the treasure was found in the land of another, or the state, and by chance, half would be given to the discoverer. If the effects found were of interest to Science and the Arts, the State may acquire the treasure for the full price, according to the statement.

Special Status of Assets Held by the Values of the Spanish Historical Heritage

Article 44 of the Law of Historical Heritage Español states:

  1. Public property includes all artifacts and materials that have the values of Spanish heritage and are discovered by earthmoving works, in any form, digging, etc. The discoverer shall notify the competent authority of the discovery within thirty days, and immediately in case of incidental findings. In no case shall the provisions of section 351 CC apply.
  2. Once the discovery is reported, and until the objects are delivered to the competent authority, the finder will apply the rules of legal deposit, unless supplying the public museum.
  3. The discoverer and the property owner shall be entitled to prize money for half the value that is assigned by legal appraisal. In the event that there were two or more discoverers and owners, this ratio will be maintained.
  4. Failure to comply with the obligations set forth in this Article shall deprive the discoverer, and if so, the owner of the right to the prize stated, and the objects will be immediately available to the competent authority, all without prejudice to the liabilities incurred and sanctions.
  5. Exempted from the provisions of this Article are integral parts of the architectural structure of buildings that are registered in the Register of Assets of Cultural Interest. However, the finding must also be notified to the competent authority within a period of thirty days.

Difference Between Treasure and Discovery

In the discovery, the owner or lawful possessor, under the circumstances, it is presumed that can be located. In the treasury, serving the same circumstances, it can be assumed with probability close to certainty that the owner cannot be located, nor, therefore, the chain of successors. Although the CC does not establish a requirement for ancient treasure, it is nonetheless one of the circumstances that allow us to deduce the impossibility of identifying the owner or person lawfully using the procedure used in the find.

49. Finding

According to Article 615 of the CC, if you find a movable other than treasure, you must return it to its previous owner. If this is not known, it should be immediately held by the Mayor of the village where the finding was verified. The mayor shall publish the finding in the usual way, two consecutive Sundays. If the furniture cannot be preserved without damage or without costs that reduce their value, it will be sold at public auction after 8 days have passed since the second request without due by the owner, and its price deposited. If after two years from the second publication of the find, the owner had not appeared, the thing or its value would be awarded to the finder. Both the finder and the owner shall be required, each in his case, to meet expenses.

Under Article 616, if the owner appears on time, they will have to pay, by way of pressure, to the finder, one-tenth of the amount or price of the thing found. If the value of the finding exceeds 2000 pts, the award will be reduced to one-twentieth as to excess.

Difference with Treasure

In the discovery, under the circumstances, it is presumed that the owner or rightful possessor can be located. However, in the treasury, according to these same circumstances, it can be assumed with probability close to certainty that the owner cannot be located and, therefore, not the chain of successors. Although the CC does not require the old treasure, it stands as one of the circumstances that allow us to deduce the impossibility of identifying the owner according to the procedure used in the find.

TEMA 12: COMMUNITY PROPERTY

50. Guiding Principles of Community Property

The guiding principles that are relevant relate to the Roman community, which is reflected in the civil code. To the extent that such regulation is largely a right device, it can be altered by express agreement, without leave to be with a community of goods. The only limit set in DC are the precepts constraints that prevent the use of community property by agreement between the Germanic community. The requirements are contained in the CC, and are as follows:

  • Prevalence of private autonomy, although there is a duty to respect the limits set by the precepts of the Roman community imperatives.
  • Participation in the burdens and benefits in proportion to the quotas, which are assumed equal unless there is evidence to the contrary.
  • The arrangements for the administration and better enjoyment of the thing taken by a majority of interest or fees, not commoners, or fees and accurate comuneros.
  • Unanimous agreement to make “changes in the common thing” and included in this category refining the dispositions of the common.
  • There is individual freedom of each community, without the consent of the rest, to:
    • alienate their share, except the right to retract comuneros.
    • Renounce your fees, books conservación.
    • Promote the cost of division in the community through the division of things according to the quotas of each, or sale and subsequent distribution of the price.

51. Division of Community Property

The division of the community by dividing the common thing and the allocation of proportional shares of the respective shares are seen as an essential right of every commoner, and is also barred. The only exception to this law is the covenant of undivided referred to in the CC, unanimously, and a maximum period of 10 years extendable for a new unanimous agreement. The division can be made by the villagers themselves, by arbitrators or conciliators appointed by them, and if it is impossible, by the courts.

The fact that a thing is essentially indivisible is not an obstacle for the division of the community, only for this division to be verified by the division of the thing. According to Article 404 CC, in this case, and if the award of the thing to one of the community with appropriate compensation for the remaining part thereof is not achieved, the alienation of the common thing and the subsequent distribution of the price in proportion to the lease shall be carried out.

Major Problems Posed by the Interpretation of Article 401

Article 401 precludes the sale of the common thing when, if made, it proves unsuitable for the use to which it applies. This poses interpretation problems:

  • Some authors assert that the article prevents the division of the community by dividing the common thing when it is unusable for the intended use, but does not prevent the division of the community through the sale of the thing and its subsequent distribution of the price, as provided for the thing 404CC “essentially indivisible.”
  • Other authors assert that the article prevents the division of the community, either through the division of the thing or their sale, so it is an exclusion of the right division of the community, based on utility derived from the community. (An example would be the 4 land owners to retain ownership of 20 posts and 800 meters of telephone cable that connect the telephone line from the general tended to their respective plots, although the division could be done, Article 404 CC prevents the division of the community as the “common thing” would be unfit for use is intended, and therefore any right of veto would split the community members.

UNIT 13: HORIZONTAL PROPERTY AND REAL ESTATE JOINT

52. Horizontal Property Regime: Concept and Title Constitutive

Concept

In the regime of horizontal property (PH), the owner of each apartment or premises has the singular and exclusive right of ownership over a space capable of independent use, and co-ownership with other owners of flats of the remaining elements, belongings, and common services. (Horizontal Property Law – LPH)

Title Constitutive

The title constitutive is the document that establishes the PH regime. It may be granted by the building owner before initiating the sale, by unanimous agreement of the owners, or by court order, with the same requirements for further modification. (LPH)

The title constitutive necessarily has to include the description of the property as a whole and each local apartment or independent unit, along with the share corresponding to each of these in the common elements of the property (LPH). It can also include, although not essential, a statute that includes rules on the right and use of the building and private elements that do not hurt others if not enrolled in the RP. (LPH)

53. Overall PH Regime

1. In Private Elements

If it does not affect safety, the overall structure, or configuration of the building, modifications may take place by the owner without prior notification to the president (LPH).

2. In Common Elements

2.1 Works Necessary for Conservation

These works are mandatory, and any owner may require them. All owners must contribute in proportion to their share or the provisions of the Statute.

2.2 New Facilities, Better Services, or Those That Do Not Affect the TC and Are Not Required for Conservation

These can be prescribed and require a resolution adopted by a majority of owners and fees. Dissidents are not liable for the cost if the amount exceeds three regular monthly common expenses.

2.3 New Facilities, Services, or Improvements Affecting the TC

These require unanimous agreement, except for actions or works that have a special regulation.

54. PH Special Arrangements for Disabled or Elderly

Do Not Affect the TC

If the cost does not exceed three ordinary monthly common expenses, the community has an obligation to undertake them, and all owners must contribute to the cost according to their actual condition and respective local or floor. (10.2 and 10.5LH).

If You Exceed 3 Ordinary Monthly Common Expenses

This requires a majority agreement that will force all property owners to contribute in accordance with their shares (11.3LH).

Affecting CT

If the arrangements affect the TC, a majority vote of owners and quotas is required, which binds all owners in accordance with their shares. Votes may be counted as favorable votes of the absent properly informed and cited according to the law, who do not express their disagreement within 30 calendar days by the secretary communications ensuring proper evidence of the reception. Validly accepted agreements require all owners to contribute to the expense. (Article 17.1 LPH)

55. Special Regime: Other Regulatory Action Affecting Whether TC or Not

1. Common Telecommunication Infrastructures, Common or Proprietary Solar Power, or to Access New Collective Energy Supplies

A. It requires the affirmative vote of 1/3 of the owners and participation fees, failing to get most of those votes tallied not attend or oppose in 30 working days of notification in 30 days.

B. The cost of installation and subsequent maintenance cannot be imposed on those who did not vote specifically for the board, while the new infrastructure will be common to the remaining effects.

C. Those who wish to contribute and then access the service can do so by paying the amount they had returned, updated with the legal interest. (17.2 LPH)

2. Systems Other Than Those Mentioned in the Previous Section Aimed at Improving Energy Efficiency or Water the Property

A. Requires the affirmative vote of 3/5 owners and quotas, forcing everyone in spending.

B. If the teams “have a proprietary advantage” just 1/3 of the owners and quotas, and system cost will be identical to the previous case (17.2 LPH).

C. To plug the electric cart in a single garage space, you just need advance notice to the community, running the cost incurred by stakeholders (Article 17 º LPH regulation 3)

3. Establishment or Abolition of Elevator, Concierge, Reception Desk, or Other Common Services of General Interest

A. It requires the affirmative vote of 3/5 of the owners and participation fees, and can be counted as favorable votes as absentee owners properly cited and notified law, and not express their dissent to the secretary communications ensuring proper evidence of its receipt within 30 calendar days (Article 17.1 º paragraphs 2 and 4 LPH)

56. General Scheme of the Agreements and Their Challenge to the Regime of PH

1. Agreements Affecting the TC or the Statutes (17.1 LPH)

General Rule:

Unanimity, may be counted as favorable votes of absent cited properly informed and legally, if not to show their disagreement within 30 days by the clerk to allow communication have proof of receipt.

Exceptions:
  • Works to facilitate access to elderly or disabled (most owners and quotas, with the possibility of counting the votes from absent) (17.1 LPH)
  • Agreements relating to common telecommunication infrastructures, common or energy deprivation solar, or to access new collective energy supplies (most 1/3 of owners and shares and without the possibility of counting absentee ballot) (17.2 LPH).
  • Arrangements for equipment to improve energy efficiency or water (3/5 or 1/3 of the owners and fees as appropriate). (17.3 LPH)
  • Establishment or abolition of a lift, porter, concierge, security, or other common services of general interest (3/5 and quota owners can compute the absentee ballot) (17.1 LPH paragraphs 2 and 4)

2. Other Agreements (17.4 LPH)

The first call requires most owners and quotas, and the second most owners notice and fees of attendees. Also, if you cannot be achieved and the majority, the judge ex parte, in the month following the second meeting, will decide in equity)

3. Challenge (18 LPH)

A challenge can be raised by homeowners who saved their vote, absent, or who were improperly deprived of their right to vote (except NPL challenger).

  • If the agreement is contrary to mandatory law, it does not expire within or prescribed (as Jurisprudence)
  • If the agreement is contrary to a non-mandatory law or statute, it expires within 1 year (since its adoption, or if the appellant has no pity on the board, from the notification requirements of the LPH)
  • If harmful to the community or any owner, the limitation period is 3 months.