Real Rights: Classification, Types, and Legal Life

Posted on Dec 11, 2024 in Philosophy and ethics

Classification of Real Rights

The most common doctrine separates real rights into:

Provisional Real Rights: Possession.
Definitive Real Rights, which are divided into:
- Absolute: Property.
- Limited, which are subdivided into:
  - Of enjoyment: Usufruct, use and habitation, servitude, surface rights, and airspace rights.
  - Of conducting a monetary value: Pledge, mortgage, and antichresis.
  - Of first refusal: Retraction.

This classification is completed by adding a reference to rights over intangible assets: intellectual property.

Doubtful Types: Ius Ad Rem and the Number of Real Rights

It is doubtful whether a lien can be understood as a right of first refusal or even a guarantee.

Ius ad rem: These are real expectations of acquisition. The law protects the hope of acquiring a property right. The owner of this expectation has a right to acquire a property right but still does not hold it because they lack some of the elements that the law predisposes. In Latin, it means “right to the thing.” In this situation, there is the secured creditor who has a credit right with a preventive note on the Land Registry, affecting a specific immovable property. It has effectiveness against third parties and can be enforced against all. These situations are between personal rights or rights of credit and real rights about things. The holder of the expectation of a right to be real has a right endowed with real individual effectiveness.

Finally, on the number of real rights, there are several positions. Doctrine and jurisprudence are very divided. Lacruz advocates for numerus apertus, while Storch and Castan defend numerus clausus.

The reasons used to defend the numerus clausus are:

In real law, legal certainty must know what right one has, what the law compels one to do, or what one enjoys.
The public order of new legal certainty, the failure to create new real rights.
All possibilities of use or exploitation of a thing or operation of a thing are politically exhausted.

Legal Life of Real Rights: Birth, Modification, and Termination

Article 609 of the Civil Code states that property is acquired by occupation, is transmitted by law, by donation, by testate and intestate succession, and, in consequence of certain contracts, by prescription.

We distinguish between primary and secondary modes of purchase:

Primary: The first property is purchased regardless of any other person and therefore is free from any burden, such as occupation.
Secondary: The means of acquisition are those derivatives that are buying a property based on a previous right that another person had and therefore subject to the same characteristics, powers, and charges as the previous owner.

Returning to the enumeration of Article 609:

Occupation: Original mode. Real rights in re aliena (in a matter of others) cannot be acquired by occupation because another legal business must mediate, the work of the owner of the thing, which does not occur in the occupation.
Succession mortis causa: Both tested and intestate, it is a specific phenomenon of transmission by death of the heritage that applies to real rights and duties as obligations.

The extinction and loss of property rights can occur via three paths:

Loss of the thing: It has to be total. Partial loss entails a change of law objectively real, which continues to exist on the remaining part of the thing. It is immaterial if the loss was caused by accident, negligence, or intentionally. If a third party destroys the thing for negligence or willful misconduct, they will be subject to an obligation to compensate the damage, but the real right is extinguished. Also, the thing is lost when it is unfit to serve its economic fate, which results in the impossibility of the real right holder making the economic function of the building.
Consolidation: This occurs when the same person is the creditor and the debtor (Article 1192 of the Civil Code). A right is extinguished when one person holds both the ownership and the real right.
Resignation and neglect: Waiver means a unilateral legal transaction whereby the holder of a right extinguishes it spontaneously. Authentic translational waivers are not considered, meaning they lack an extinctive effect, and also bilateral ones, lacking the requirement of one-sidedness and making a transit to other distinct figures. For resignation to be effective, it does not need the knowledge or consent of the person favored. Abandonment is a form of waiver that is characterized by the dispossession of the thing. The mood to relinquish ownership can be the same after the loss of possession concurrently with the fact of having to leave.
Revocation: This takes place when, by virtue of a change of will that broadcast the thing allowed by law, it returns to its heritage. A paradigm is a donation. Revocation requires a prior positive will to transfer the title and make the transmission effective. Such revocation is destroyed by alienation, so there is no revocation if the domain has come to move.
Expropriation: Forced expropriation for reasons of public utility and social interest lies with the same on other property rights or legitimate interests. Its development is part of administrative law.

Possession

1. Classes. Possession in the Concept of Holder or Not

Article 432 of the Civil Code states: “The possession and rights to property may be taken in one of two concepts: either the owner or the holder of the thing or right to keep and enjoy them, the domain belonging to another person.” There are two ways, therefore, to have: in respect of the owner and holder of the thing or right, that is, as a titleholder.

The distinction between possession by way of owner or owner is not comparable to owner or landlord; it is replaced by the concept of ownership by the proprietor. So the owner of a thing is a holder in respect of the holder of the thing, but one who holds it in usufruct has this way of usufructuary, that is, they have the right of usufruct in respect of the titleholder.

The concept of ownership must be interpreted in the broad sense, namely:

The holder of the right on which the thing rests or the holder of the thing owns it. The one who apparently possesses and is aware that they are.
The holder of the thing or right, or owner, who owns the thing that belongs to another, acknowledging that person. For example, one who has by way of usufruct is the beneficial owner, acting as such and is considered as such. Suppose one is the beneficial owner of a house that has an easement that goes towards a farm next door. The usufructuary has the right of way in respect of a non-starter and has possession of the easement by way of a non-starter. The usufruct is the way of possession in respect of the titleholder.

The holder has interdictal protection, that is, typical of possession (Article 446 of the Civil Code). Possession in the concept of the holder is feasible for usucapion. Possession in a different concept to the holder has injunctions to protect them, but it cannot be used to acquire ownership and other rights to acquire other real rights.

Whoever has no way of owner or holder can spend to own the concept differently. You can change the concept where it exists, but to produce this change, it is not enough that there is a mood of change. It requires two elements:

External element: External behavior.
Internal element: Internal conviction.

Thus, when a person has, by mistake, a thing in the concept of the holder, for the fact that they have learned by mistake, you cannot admit that they directly change the concept. Both elements will have to be present.

Article 448 of the Civil Code says: “The concept of owner keeper has in their favor the legal presumption that they have justly and not be forced to show it.” This provision establishes an important presumption for someone who has by way of headline, exempting the holder from the title display based on which they have, and it is also presumed to possess just title this way. It assumes that one owns in the way they do. It is a presumption in favor of the holder. Whoever maintains that they do not have to prove that the respondent has no right.

In any case, holding in respect of the holder does not mean they have to have title but would have as if ownership and possession by way of non-permanent means to possess the object as belonging to another person.

Possession as a Non-Title Holder and Servant of the Possession of Others

The non-title holder as the server is not possession, that is, a tool holder. This is the case in which one has it not by a representative but exercises their possessor possession by the server, which is a pure instrument of intelligent possession than that. The owner and non-owner is not an instrument, but it is a keeper.

2. Immediate and Mediate Ownership

This classification comes from Germanic law, although it also hosts our right:

a) Immediate possession: It is obtained directly, without mediation of possession. It is a possession of law, which preserves the owner and is not likely to have various degrees. For example, a lease.

b) Mediate possession: It is one that has a possessory through a mediator, through the possession of another. It is susceptible to various degrees. For example, subleasing.

For example, in a housing lease, the landlord delivers the house, moving the possession, keeping the material landlord possession (possession de jure), and gaining the tenant immediate possession (possession de facto). These are cases in those two possessions on the same object, and those of the holders are bound by a legal relationship that arises from the division of possessions that makes the holder receive such immediate possession of the other is the possessor mediate. Mediate possession may have several degrees, depending on the persons having possession mediately.

According to Article 463, acts relating to possession, executed or consented to by the persons possessing a thing as a mere holder to enjoy or retain any concept, do not require nor harm the owner, unless they have permitted express power to execute or subsequently ratifies. This means that when a holder has immediate possession, the acts of this when acting as such do not affect the holder mediate. However, if the holder immediately performs acts within the scope of the keeper mediate, it would affect this, and the possessor mediate may lose other than the holder immediately.

Servant of Possession

We can find a legal relationship between two people where one of them owns some property, and the other is using those assets. For example, an employment relationship. The chauffeur of a person using the car of their boss or company. Such use does not use that one could consider generating possession. No splitting of possessions; there is mediate and immediate possession. The leader retains the mediate and immediate possession. The worker is the servant of the possession, which is not the holder. The holder has to mediate through another keeper.

Possession in One’s Own Name or Someone Else’s

From Article 431 of the Civil Code, it follows that: “Possession is exerted on the things or rights by the same person who has them and enjoy them, or otherwise in his name.” This article concerns the possibility of holding oneself to oneself and the possibility that one has to be the effects of another.

Possession in its own name is one who has for themselves; it is indifferent to do as a starter or as a non-starter. Possession on behalf of others is one in which the holder acts as the representative of possession of the titleholder.

Some authors consider that in this kind of possession in the name of another, one should include the possession through a representative and servant of the possession. However, Albadalejo does not accept that the server can include the possession because it is more widespread. According to the position of which is the possession in the name of another, it is clear that we must include the representative. The holder on behalf of others is one who can exercise power as the possession is, but its effects are going to stop the representative is represented.

The holder and its characteristic is that the effects do not affect them but the represented. The server possession is not a keeper, so we cannot say it is a keeper in the name of another; it is an instrument through which the owner’s possession.

3. Vicious and Non-Vicious Possession

Vicious possession is that of the spoils gained by the previous owner, that is, without or against their will. Otherwise, it is not vicious.

Article 441 of the Civil Code states that: “In no case may possession be acquired violently as long as a holder opposes it. The action that is created or right to deprive another of possession of the thing, provided that the holder resists delivery, should seek assistance from the appropriate authority.”

And Article 444 states that acts done “secretly and without knowledge of the possessor of a thing, or violence, do not affect the possession.” The law rejects the vicious acquisition of possession, then why is the violent despoiler a keeper?.

The legislature makes a general consideration that one is not acquiring possession illegally or violently. The doctrine concludes that the despoiler is a possessor, though not all think so.

Diez Picazo says that he who acquires possession illegally or violently during the first year is a real keeper. The stripped loses possession but is not yet a despoiler holder.

Albadalejo says that the despoiler takes possession in the first year, but only the fact, and is also a vicious possession, a possession a little weaker than the foreground in normal.

A splitting of possessions is produced:

Possession of fact: The despoiler.
Possession of law: The despoiled.

Even the vicious holder is protected against others, against the original owner when they have tried to recover the illegal possession or violently, because Article 441 applies to all. Moreover, in certain cases, this also serves to hold usucapir viciously. Finally, it has the effect that after a year, it becomes normal possession; therefore, possession is healed.

However, vicious possession has weaker effects than possession that is not depraved:

It protects the owner against third parties who want to disturb that possession, but not against the previous holder. Although it is protected when the thing is to regain stripped clandestinely or violently. Article 441 serves for the dispossessed and for the despoiler and for those who are not.
This also allows usucapir possession. It is a possession that becomes normal possession when they reach one year.

4. Right and Wrong Possession

One has the right to possess justly and unfairly, which does not. It is different from vicious or non-vicious possession. The unjust possession from the fact they have no right to possession, the secret is not entitled, but not the only non-tiene.

For example, I forget the Civil Code at home. I see others in class, and I think it’s mine because it is equal. I have a non-vicious possession because I have not stolen it, but a wrongful possession, because the code is not mine, but I do. However, the error is not what distinguishes the two possessions.

In vicious possession, the holder knows that they are entitled to possess; there can be just error. The possession can be just and vicious, for example, the holder may strip the stripped despoiler and regain possession; this possession is fair but vicious.

5. Possession of Good Faith and Bad Faith

This is a classification that we can only do when possession is unfair. One person has in good faith when they think they have just possession. One has it in bad faith or the holder who believes they know that their possession is unjust.

Article 434 of the Civil Code provides that: “Good faith is always presumed, and the bad faith assertion of a test corresponds to the holder.” It is a distinction based on the belief or ignorance of a situation in good faith. The provision establishes a presumption of good faith that we all have. Bad faith has to be tested.

The Civil Code does Article 1950, a positive regulation of good faith. It must be a possession that has remained so ever since. The distinction to establish this good or bad faith can change during the possession; this is legally possible, but for it to have a value, there have to be acts of faith that change patently.

It is interesting in analyzing the faith of a person to see the effects of such possession, time limits for usucapir, etc.

6. Precarious Possession

Possession is in itself a precarious institution because it is overwhelmed by other real rights. It can be viewed from two perspectives:

Possession precarious broadly: The one with anyone who has no right to possess. It is weak, be overcome by having the right to possess.
Precarious possession in the strict sense: The one that acquires a previous owner reserves the right to recover when they decide. For example, a lease agreement or deposit. The possession of the borrower or custodian is a precarious hold strictly.

The precarious possession is acquired by the holder who loses the precarious when the previous holder unless the latter retains possession mediately.

Article 444 of the Civil Code refers to acts that can make one on property or rights held by others, merely tolerated and executed acts clandestinely or with violence. These acts do not affect the possession.

There are various interpretations; Albadalejo supports two:

Those actions that make a party will not affect the holder of the good or right to which those acts because the possessor in any case retain possession as a right. It’s the most convincing to him.
Do not lose possession of that power without letting that such possession is, consent to perform other acts or make use of his possessions.

7. Possession of Movable or Immovable Property

The possession of movable property is the same, but the effects and regulatory requirements are different.

8. Co-possession

Article 445 of the Civil Code states: “The possession, and indeed can not be recognized in two distinct personalities, apart from cases of undivided. If the conflict arises over the fact of possession, actual possessor shall be preferred, if they appear two keepers, the oldest, if the dates of the possessions note shall submit the title and, if all these conditions being equal, deposit shall be lodged in judicial or save the thing, while it decides on its possession or ownership by the relevant procedures.”

Possession can be unique and shared. There is co-possession when several people have joint ownership of the same object or right. It is in cases of undivided but not if there is a division of the quota or object.

There will be co-possession when possession of the subject lies with the whole object or right. If everyone has a part, it is possession of a part, but not co-possession, where all have everything.

Article 450.1 states that when the division occurs and gives order to the sharing, there are retroactive to the usurpation and is believed to have possessed nuclear various hand during co-possession.

Article 450.2 states that the interruption of possession of a co-owner affects everyone.