Specialties of Industrial Action on Property, Accession, and Occupation

Posted on May 23, 2024 in Law & Jurisprudence

Specialties of Industrial Action on Property

In the transmission of furniture, titles in the formal sense are not usually mediated, and therefore, it is difficult to prove the right of ownership. Hence, the title and possession are equal to the presumption. It is not only rebuttable; the title is a presumption strengthened so as to proceed. The replevin the plaintiff must prove, alternatively, one of the following circumstances:

  1. That the defendant is not in good faith, or
  2. The applicant lost the thing, or
  3. The plaintiff was “illegally deprived” of the thing.

Regarding the concept of “unlawful,” the thesis called Germanist understands that it only includes the cases of theft, while the civil includes any act aimed at the transfer of rights and verified without the consent of the owner (especially made with a breach of trust by the holder of the thing to take care, repair, manage, and so on.).

If the owner had acquired the thing in the stock market, fair, or market, or from a merchant legally established and ordinarily engaged in trafficking similar objects (and in good faith), there is the requirement of law so that the repossession does not come in any case because the “public shop” referred to in the Commercial Code has nothing to do with the “public sale” referred to in the following paragraph.

If the possessor has acquired the thing in good faith by public auction or if it were a thing pledged in Montes de Piedad authorized, and where appropriate the repossession, the owner will reimburse the price or the amount of commitment and interest due, respectively, to retrieve the thing.

Standing, Time of Exercise, and Practice the Legal Criteria for Delimitation Referred to in Articles 385 to 387 Cci.

Legitimation active:

384 ICC: owner and holders of real rights over the property (depending on LECI 2061, holders of rights to use and enjoyment of the property.)

Term year:

1965 imprescriptible CCi.

Criteria:

Article 385

The boundary shall be in accordance with the titles of each owner, and lacking enough titles, so it proves the possession in which they are the neighbors.

Article 386

If the titles do not determine the boundary or area belonging to each owner, and the matter is not resolved by the possession or other evidence, the boundary will be distributing the land subject matter of the dispute in equal shares.

Article 387

If the titles of the surrounding area indicate a greater or less area than that comprises all the land, the increase or the fault is apportioned.

ITEM 10: Accession

Conditions of Construction on Foreign Soil and/or Foreign Materials.

Planteables Assumptions:

  1. Building made by the owner of the land with foreign materials: 360 CCi: If in good faith, the owner must pay its value. If in bad faith: its value and damages. The owner of the materials is only entitled to withdraw if it in no way detracts from the work.
  2. Uplifting good faith belief that they used their own materials for building on foreign soil: 361 CCi: the owner of the land is entitled to take up the work, with compensation to which built the necessary expenses and the amount of useful expenses or increased value for the work had acquired the property (the choice of the owner of the land, but with a lien in favor of whom built). Instead of the above, the owner of the land can force the builder to pay the price of the land.
  3. Uplifting of bad faith using their own materials for building on foreign soil: 362 and 363 CCi: the uplifting loses what was built without the right to compensation, and the landowner may require the replacement of things to their original state at the expense of that built (including demolition and any compensation for damages caused by the time of occupation of the farm).
  4. Uplifting of bad faith using their own materials for building on foreign soil also owned in bad faith: The owner of the soil is in bad faith when the building was in his view, with his knowledge and patience, without opposition, when so is uplifting, there is the compensation of the bad faith of both resolving the conflict as if they had acted in good faith, and thus according to the criteria of Article 361 of the CCi.
  5. Uplifting on foreign soil and materials are also others: Relations between the land owner and the owner of the materials: 365 CCi: if the latter was in good faith, the owner of the land is liable for the value of alternative materials if those who had not used goods to pay and if the owner of the ground will not use the right to require the demolition in the case of art. CCi 363. Relations between the owner of the land and the relationship between the uplifting and inspirational and the owner of the materials, as previous sections in the respective cases.

Jurisprudential Rule of “Accession Inverted” and Requirements for Implementation.

The rule of “accession inverted” by the European Court is prepared to allow, in foreign soil, the builder to choose to purchase the land occupied instead of giving the owner of the soil the right to acquire the building (as required by CCi).

The requirements for this rule by this Court are:

  1. It is an overreaching construction, that is, only partially done on their own soil and partly on foreign soil.
  2. No land has divided the power of the building carried on foreign soil.
  3. The value of the building has to significantly overcome the invaded soil.
  4. The uplifting has to be in good faith. But the other condition is extremely difficult to prove the bad faith of the builder.
  5. The uplifting has to pay the owner of the land the value of the invaded area and the decrease in the value of the rest of the property, which may arise from the segregation.

ITEM 11: OCCUPATION

Occupation: Concept and Requirements.

According to CC 609 and 610, 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:

Just the legal, not being precisely the capacity to act. Like the 443 CC, it legitimizes minors to acquire possession, but with reduced demand logic, the natural ability to understand and will exercise the power of fact. Legal persons acquire the property by occupying their bodies and employees (CC).

Subject:

It must be appropriate in nature and lack ownership. That is not the subject of adverse possession; it may be things that are out of business (public domain, for example) or those that have no owner. As for real estate, it cannot be acquired by occupation because of the real estate property owner lacking belongs to the Central Government, according to the Heritage Act in Public Administration.

Hidden Treasure and Difference Finding

Concept:

CC 352 says that the treasure is the purpose of the law, any hidden and unknown deposit of jewels, money, or luxury items, whose membership does not appear legitimate.

Scheme:

351 CC says that the treasure trove belongs to the owner of the land where he was. If the treasure was found in the land of another, or the state, and by chance, half were applied to the discoverer. If the effects found were interesting for Science and the Arts, the State may acquire the treasure for the full price and according to the statement.

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

Article 44 Law Historical Heritage Español.

  1. Public property is 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.
  3. Museum. The discoverer and the property owner shall be entitled to prize money for half the value assigned to the 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 in place and sanctions.
  5. Exempted from the provisions of this Article are integral parts of the architectural structure of buildings registered in the Register of Assets of Cultural Interest. However, the finding must also be notified to the competent authority within thirty days.

The Difference Between Treasure and Discovery:

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.

Finding Treasure and Difference

According to Article 615 of the CC, finding a movable other than treasure must be returned to its previous owner. If this is not known, it should be immediately held by the Mayor of the village where they had verified the finding.

The mayor shall publish the finding in the usual way, two consecutive Sundays. If the thing cannot be preserved as furniture without damage or without costs that reduce its value, it will sell at public auction after eight days had passed since the second request without due by the owner, and deposited its price. If, after two years from the second publication of the find, the owner had not appeared, the thing was awarded, or its value would be found. This and the owner shall be required, each in his case, to meet expenses.

Under Article 616, submitted on time, owners will have to pay, by way of pressure, which had made the find, one-tenth of the amount or price of the thing found. If the value of finding pts exceeds 2000, the award will be reduced to one-twentieth as to excess.

Difference with the Treasure

In the discovery, in 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.