Real Rights in the Spanish Civil Code
Article 1280 of the Spanish Civil Code and Real Rights over Immovable Property
Article 1280 of the Spanish Civil Code (CCi) states that acts and contracts aimed at the transmission of real rights over immovable property shall be included in public documents. This raises the question of whether a contract not granted in writing can still transfer ownership.
If the contract is in writing and the transmitter holds the property, tradition (delivery) will occur in accordance with Article 1462.2 CCi, fulfilling the requirements of Article 1280. However, if the contract is not in writing and tradition occurs through other means (real or symbolic), Article 1280.1 does not prevent the transfer of ownership. This is because the writing requirement is not for the validity of the contract, but rather for evidentiary purposes.
Tradition and Registration
Article 38 of the Land Registry Act (LH) establishes a rebuttable presumption of tradition from registration. This means that the registration of the acquirer is presumed to be possession, and therefore, transfer of ownership from the previous registered owner is also presumed.
However, there are cases where the transferor has lost possession under Article 460.4 CCi. In these cases, the writing preceding the registration can be considered instrumental tradition, as the transferor is not the possessor. This leads to the debate of whether writing is an alternative way of acquiring property or if registration has replaced tradition as an integrator of the factual situation produced by the transfer of ownership.
General Causes for Termination of Real Rights
- Loss or destruction of the thing: This makes it impossible to exercise the power inherent to all real rights.
- Consolidation: When the owner of the real property right and the lien holder become the same person.
- Waiver: The real right holder can waive their right, provided it does not contravene public order or harm third parties.
- Prescription or adverse possession: As per Article 1930 CCi.
- Eminent domain: Expropriation by the State.
Possession
Concept of Possession and Possession in Concept of Owner
Article 432 CCi defines possession as the holding of a thing or right, either as owner or as holder, with the intention of keeping or enjoying it. The concept of possession refers to the intention with which the possessor holds the thing. If possession is acquired through a contract, the concept will be determined by the nature of the contract. For example, a buyer will possess in the concept of owner, while a lessee will possess in the concept of holder.
It is important to distinguish between possession and mere detention. Servants or employees who hold a thing on behalf of their employer are not considered possessors, as they lack the intention to hold the thing for themselves.
Modes of Acquiring Possession
Article 438 CCi lists the following modes of acquiring possession:
- Material occupation of the thing
- Subjection of the thing to one’s will
- Legal formalities established for acquiring such right
Occupation is a means of acquiring possession, but it only leads to ownership if the thing is res nullius (ownerless) and the acquirer has the intention to become the owner.
Another mode of acquiring possession is inheritance (mortis causa), governed by Article 440 CCi. The heir acquires the possession of the deceased, including any defects in the possession.
Co-possession and Conflicting Possessions
Co-possession occurs when two or more individuals possess the same thing with different concepts of possession (e.g., owner and lessee). Conflicting possessions arise when multiple individuals claim exclusive possession with the same concept.
Article 445 CCi provides rules for resolving conflicting possessions. Preference is given to actual possession, followed by the oldest possession, and then title. If all conditions are equal, the thing will be held in judicial deposit until the dispute is resolved.