Understanding Horizontal Property Ownership and Usufruct in Real Estate
Meaning, Nature, and Horizontal Property Regime
Horizontal property ownership is unique because it combines two ownership types: exclusive ownership of individual apartments and common ownership of shared building elements. This system, regulated by Law 8/99, of April 6, which amended Law 49/1960 of June 21 on Condominiums, has specific rules. Further modifications were introduced by acts in ’92 and ’98. As a distinct property form, it operates under specific regulations, superseding general community property norms.
Condominium Establishment and Key Distinctions
Establishing a condominium requires a constitutive title, as stated in Article 5 of horizontal property law. This public document, registered in the Property Registry, details the entire building, including each floor and the landowner. Within a condominium, it’s crucial to differentiate between:
- Proprietary Elements: These are independently used spaces under the exclusive ownership of individual owners.
- Common Elements: These include shared spaces like stairs, garages, elevators, and storage areas, as identified in the constitutive title. These elements are for everyone’s use.
The constitutive title outlines elements as either exclusive or common. However, a proprietary element can become common and vice versa.
Understanding Shares and Usufruct
A share represents the percentage of ownership an individual holds in the property, referring to their private space. The condominium bylaws, determined by neighbor agreements (requiring a specific quorum), outline the burdens and benefits for each owner.
Usufruct: A Right to Enjoy Another’s Property
Usufruct is the legal right to fully utilize and benefit from someone else’s property without altering its fundamental nature. It’s a real right, distinct from ownership. The usufructuary (the right holder) doesn’t own the property but enjoys its use and benefits. This arrangement doesn’t make them a co-owner; they have a temporary right to the property’s utility.
The law emphasizes that usufruct is not ownership but a right derived from it. The usufructuary can use and benefit from the property but must preserve its condition and cannot dispose of it. The owner, holding bare ownership during the usufruct, retains the right to reclaim full use and enjoyment when the usufruct ends.
Key Characteristics of Usufruct
- The usufructuary enjoys the property and its fruits but must maintain it.
- The owner (bare owner) retains ownership but relinquishes use and enjoyment during the usufruct.
- Usufruct is temporary, ending upon a predetermined event (e.g., the usufructuary’s death).
Defining Usufruct
The classic definition of usufruct, attributed to the Roman jurist Paulus, is:”Ius alienis rebus utendi fruendi substantia rerum saves” (The right of using and enjoying the fruits of things belonging to others, provided that their substance remains). Modern doctrine, as articulated by Albadalejo, defines it as:”The right to enjoy another’s property fully, without altering its nature”
Article 467 of the Civil Code states:”Usufruct gives a right to enjoy another’s property with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise authorizes”
Subjects and Object of Usufruct
Subjects
- The Owner (Bare Owner): Holds the property’s title but relinquishes use and enjoyment to the usufructuary.
- The Usufructuary: Holds the right to use and benefit from the property. Any individual or legal entity with legal capacity can be a usufructuary. The Civil Code limits the usufruct term for legal entities to 30 years (Article 515).
Object
Usufruct can be established on almost any asset—movable or immovable, tangible or intangible—as long as it’s lawful, transferable, has utility, and can provide the usufructuary with some benefit. This could include a farm for cultivation, an apartment for habitation, or even intellectual property rights. However, it cannot be established on something strictly personal or non-transferable.
Termination of Usufruct
Article 513 of the Civil Code outlines the causes for usufruct termination:
- Death of the usufructuary
- Expiry of the term for which it was constituted
- Fulfillment of conditions precedent stipulated in the title
- Merger of usufruct and ownership in the same person
- Resignation of the usufructuary
- Total loss of the property subject to usufruct
- Resolution of the right constituting the usufruct
- Prescription
Quasi-Usufruct
Governed by Article 482 of the Civil Code, quasi-usufruct applies when the enjoyment involves consumable goods. Since consumables are depleted through use, the usufructuary, upon consuming the good, must return its value to the owner or provide a similar item. Whether this constitutes usufruct or a transfer of ownership is debated. In practice, quasi-usufruct is a historical remnant from Roman law, where it applied to inheritances. While present in Article 482, it holds limited significance today.
Right of Use and Habitation
. are limited real rights (limiting the powers of the owner) And enjoyment (possession of the thing). They are similar to the usufruct, and specifically distinguish it within the following :——– who use the holder of this right has the right to enjoy and enjoy but not entitled to receive all fruits but the thing that generates only is entitled to the fruits that are necessary to meet user needs and family room —– the right gives its holder the room, the right to occupy a strange house the rooms necessary for themselves and their personal rights are familia.Estos, ie not be passed and all are compatible as apply the rules of usufruct. Today these rights are not very important but the gain in the case of occurrence of the dissolution of marital property and in cases of divorce, separation, nullity. Some say that it is included in these rights if some say no.