Real estate law

[vc_row][vc_column][vc_column_text]Palma de Mallorca Real Estate Bonafinca offers you a compilation of Real Estate Law below so that you can know your rights and obligations when facing a real estate operation. Remember that the experts at Inmobiliaria Bonafinca are at your disposal to help you in everything you need.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_text_separator title=”Real estate law” title_align=”separator_align_left”][vc_tta_accordion style=”flat” spacing=”10″ gap=”10″ c_icon=”triangle” active_section=”5″ css_animation=”bounceIn” collapsible_all=”true”][vc_tta_section i_icon_fontawesome=”fa fa-balance-scale” add_icon=”true” title=”The right” tab_id=”1535987242496-b88a9cde-8c6a”][vc_column_text]The law is a set of rules of external conduct of the subject, in their relationships with others, enunciated by the competent bodies and coercively imposed on citizens and that tend to make possible the harmonious social coexistence of men.

The infringement of the law carries legal consequences. From this we can, in some way, characterize the legal rule:

Imperativity: the law is a mandate and, consequently, people have the duty and obligation to abide by it. And this is recognized in the Spanish Constitution itself, which in its article 9.1 indicates that citizens and public powers are subject to the Constitution and the rest of the legal system.
For greater abundance, we will also cite Article 6.1 of the Civil Code, which indicates that “ignorance of the laws does not excuse compliance”
Coactivity: the legal rule emanates from political power, in any of its manifestations (parliamentary monarchy, republic …) and this results in compliance with it being coercively imposed by force and through sanctions. This is basically the responsibility of the Judiciary.
Voluntary compliance: despite seeming contradictory, in light of the previous aspects, it is precisely this third party that gives character to the legal rule; its most important effect is to be respected and fulfilled.
CLASSIFICATION OF LAW

NATURAL LAW AND POSITIVE LAW

We call Natural Law the set of universal principles of Law, conceived by reason and based on the nature of man. It is a rational law derived from the moral law.

We understand by Positive Law the set of norms that, at a given moment, establishes and imposes on its members a determined sovereign organization and the acts that are the consequence and development of such norms.

OBJECTIVE LAW AND SUBJECTIVE LAW

The word Law is used in two different senses: one objective and the other subjective.

In its objective sense, Law is the set of legal rules. In its subjective sense, the Law is the power or prerogative recognized in these legal rules to a person (individual or collective) that allows them to impose a certain behavior on others.

The objective Law is, therefore, the Law as an ordinance or norm while the subjective Law is the Law as a prerogative or faculty.

PUBLIC LAW OR PRIVATE LAW

In the absence of a unanimous theory to draw a distinction between Public and Private Law, we understand in principle the following:

1.- Public Law protects general interests, while Private Law protects private interests.

2.- Public Law regulates the relations between the State and those administered and Private Law regulates the relations between individuals.

BRANCHES OF PUBLIC LAW

International Law, which regulates relations between States.
Political Law, which regulates the organization and operation of the State.
Constitutional Law, which includes the principles and bases by which a State is governed.
Administrative Law, which determines the activity of Public Administrations for the fulfillment of its purposes.
Criminal Law, which includes the rules established by the State for the sanction of punishable acts.
Procedural Law, which includes the rules of action before the Courts of Justice.

BRANCHES OF PRIVATE LAW

Civil Law, which regulates the relationships between individuals as regards their person and their property.

Commercial Law, regulates the relationships that arise as a result of the exercise of trade. The mercantile norms are basically included in the Commercial Code.

THE LEGAL STANDARD

Legal norms are statements that establish the way in which a specific social relationship is to be articulated. Actually, a legal norm that can be broken down into two:

The Norm that orders or prohibits a certain conduct.

The Rule that threatens a sanction failure to comply with the first.

SOURCES OF LAW

We understand by sources of law those acts through which the law itself manifests itself. We can distinguish written sources and unwritten sources.

WRITTEN SOURCES:

♦ The Constitution

♦ The Law

♦ The Regulations

♦ International Treaties

UNWRITTEN SOURCES

♦ The Custom

♦ The General Principles of Law

1.2 HOUSING IN THE SPANISH CONSTITUTION

Real Estate Law is that set of rules that regulate all matters related to real estate and real rights over them.

Real Estate Law can be defined as that branch of Law whose object is real estate and all its circumstances. For this reason, it is a discipline that groups together a large number of issues and subjects: contracts, both from a professional point of view (construction contract, employment contract …) and from the final point of view (real estate sale contract) , the land and, consequently, all the parallel regulations (planning, valuation …), expropriation, leases, horizontal property, Real Estate Registry Law …

The issue of housing in the Spanish Constitution must be developed in accordance with article 47 of the same:

Article 47: All Spaniards have the right to enjoy a decent and adequate home. The public powers will promote the necessary conditions and establish the pertinent norms to make this right effective, regulating the use of the land in accordance with the general interest to prevent speculation.

The community will participate in the municipal capital gains generated by the urban action of public entities.

PROFESSIONAL LAW OF REAL ESTATE MANAGEMENT

LEGAL RELATIONS WITH CLIENTS

INTRODUCTION

Real estate managers have their very remote origin, we can find an example of such activity back in Classical Rome, in which the services that were provided were considered as Operai Solitae, and enjoyed their own specificity in the form of a mandate contract that was sometimes Submed in the leasing of services and others as a particular mandate or unius rei
From then until now, it is evident that the traffic made it necessary with the passing of time and the development of real estate in cities, that the State also had to intervene in this area.
For this reason, the real estate agent was regulated as the first figure and the Central Board of the Official Associations of Real Estate Agents was created by decree of December 17, 1948, order of January 11, 1949, order of 10 of March 1949 and Decree of April 6, 1971.
On December 4 and through Decree 3248/1969, the Regulation of the Official Associations of Real Estate Agents, regulating the exercise of the profession, is approved.
Said Regulation was amended through Decree 55/5575 of January 10, 1975.

THE ACTIVITY OF REAL ESTATE MANAGEMENT

In real estate operations, it is necessary to carry out multiple operations that, in principle, the individuals or people who need to carry them out do not have the time or the necessary knowledge to be able to carry them out.
Therefore, the existence of professionals is necessary to guarantee the way in which a certain operation is carried out, it is the best of the possible ones and it will favor the interest of the client, since the most favorable results will be achieved, taking into account the circumstances of the specific case.
On the other hand, the presence of professionals in the real estate field, which is one of the most important in the economy of every State, and which serves as an economic barometer, favors the revitalization of the sector and its impulse, given that together with the mere commercial work there are other facets, such as market studies, statistics, etc., that will help its development.

1.3 THE OBJECT OF THE RIGHT. THINGS

CONCEPT

In a legal sense, things are entities that are subject to law.

In our Civil Code there is no precise and delimited concept of the Thing. We define, then, the Thing as any entity, material or immaterial, that has an autonomous existence and can be subjected to the power of people as a means to satisfy them a utility, generally economic.

According to this definition, in order for a Thing to be legally considered, the following conditions are required:

1º.- Utility: That the Thing can serve as a means to satisfy human needs, most of the time, utility of economic and patrimonial interest.

2º.- Individualization: That the Thing has a separate or autonomous existence.

3º.- Appropriability: That the Thing is likely to belong to a patrimony.

In developing this topic, we will use the terms “things” and “goods” interchangeably, as the Civil Code does.

CLASSIFICATION OF THINGS

There are three major classification groups. They are as follows:

1.- Because of its qualities:

√ Corporal and Incorporal

√ Expendable and Non-expendable

√ Consumables and Non-consumables

√ Divisible and Indivisible

√ Present and Future

√ Furniture and Real Estate

We develop this first classification:

Corporal things are those that are perceived with the senses, that is, those that have a concrete existence in Nature.

They are incorporeal those that are perceived with the understanding, that is to say, that they have an intellectual existence.

Things that are treated as homogeneous things in traffic are fungible, so they are perfectly substitutable with each other. For example: money. The non-fungible thing is a thing individualized by certain qualities of its own that give it a different value from others. For example: a painting by Dalí.

Consumable things are those that are destroyed with use, either immediately such as food or fuel or gradually such as clothing or cars. All the rest are non-consumable things.

Divisible things are those that can be divided without ceasing to be useful for the use to which it is intended and the resulting parts of the division have the same function as the whole.

For example: an amount of money, a piece of cloth. They are indivisible when the parts resulting from the division cannot fulfill the same mission as the whole. For example a car.

Present things are those that exist at the moment of being taken into account. For example: a built house. Future are those whose existence is not current but can be rationally expected with more or less probability. For example: the harvest.

Movable and immovable things is the most important classification and to which the Civil Code gives more importance.

We will develop this distinction later.

2.- By connection relationships:

√ Singular and Universal

√ Main and Accessories

The things that constitute a unit, natural or artificial, with real existence in nature (a house) are singular.

They are universal, those that without appearing materially united, are reunited under a single name and are considered as a unitary whole (a library, an inheritance).

According to the dependency or subordination relationships they distinguish between main and accessory things. In this sense, the things that are accessory must be sacrificed and follow the legal regime and the destiny of the main ones.

3.- By the relationship of belonging or appropriation:

√ Appropriate and Not Appropriate

√ Marketable or prohibited or Restricted to Traffic

√ Of the Public Administrations or the Individual

√ Public or Private domain

Appropriable things are those that have full aptitude to be the object of patrimonial legal relations. The precepts of the Civil Code refer to them when it designates them as things that are in the commerce of men.

Inappropriate things are those that lack any suitability to be the object of private patrimonial rights. For example: waters, public things of use or service, etc …

Tradable things are those that are within the commerce of men.

Things of prohibited or restricted traffic are those that are not excluded from the possibility of rights and are not outside the trade are the object, however, of an absolute or relative prohibition to alienate. The prohibition can be for reasons of public health (sale of drugs), security (weapons and explosives), artistic heritage, etc …

Depending on the person who owns the property, the things belong to the Public Administrations (Town Halls, Central Administration, Autonomous Communities, Provincial Councils) or belong to a private individual (individual or private legal entity).

We distinguish goods from public domain assets from private property by the criteria of the destination or affectation of the assets, considering as public domain or common use, those intended for direct use by the public and those affected to a public service.

The following are public domain assets:

The assets of the Public Administrations intended for public use (roads, beaches, rivers …).

The assets of the Public Administrations destined directly to the fulfillment of public purposes or public services (Public buildings, hospitals, etc …).

They are assets of private or patrimonial property:

Those belonging to individuals, individually or collectively.

Assets belonging to Public Administrations that are not intended for public use or public service.

Assets that, having been in the public domain, are no longer intended for public use or service.

MOVABLE AND IMMOVABLE PROPERTY

Movable property is those that, lacking a fixed location, can be transferred from one place to another without detriment to their nature.

Movable property is classified as movable by nature and by analogy.

They are goods by nature the things that can be transported without prejudice to what they were united.

Income or pensions are movable property by analogy, provided they do not encumber a real property, and credit rights.

Real estate is those that have a fixed situation and cannot be displaced without deterioration.

Real estate is classified:

1.- By its nature:

The lands, roads and all kinds of constructions attached to the ground.

Trees and pending plants and fruits, provided that they were attached to the earth or formed an integral part of a property.

Everything that is attached to a property in a fixed way, so that it cannot be separated from it without damage to the material or deterioration of the object. (Wells, canals, sewers, etc.).

The mines and quarries.

Surface and underground waters, rivers, lakes, lagoons, etc …

2.- By its analogy:

Administrative concessions for public works (the operation of a highway, whether it is built by the Administration or by the concessionaire) are considered as such. Real rights over real estate (easements, mortgage, usufruct etc…) also have such consideration.

3.- By its destination:

Are those movable property that the owner allocates or joins to a property. For example: machinery for the exploitation of an industry.

The distinction between one and the other, apparently, is found in the mobility of things.

RUSTIC AND URBAN FARMS

Although the study of farms is the subject of other topics in this book, an introduction to this concept is of great interest.

Real estate by nature includes farms. A farm is called a piece of land surface that, physically or legally, appears individualized and over which the subject exercises ownership actions.

The estates are classified as rustic and urban and the distinctions between one and the other must be found in the existing jurisprudence.

In this sense, to determine if a farm is rustic or urban, it is not enough to consider whether it is built or not, but the situation, the destination and which is the main element and which is the accessory, whether the land or the building.

In short, four criteria must be met:

Situation: Place where the farm is located, in the field or in the town.
Construction: Ground or flight, that is, land or building.
Destination: Use or service to which the farm is dedicated (agricultural, livestock or forestry operation compared to housing, industry or commerce).
Accessority: Preponderance of the land or building and dependence on one another.
THE MONEY

The money is:

a) A movable thing: Because it is susceptible to displacement.

b) A fungible thing: Par excellence.

c) A consumable thing: Inasmuch as it is essentially a means of exchange, whose natural use consists in spending it even if it is not destroyed.

SECURITIES SECURITIES

Securities are a special category of things that are related to money and that although it is a subject of study of Commercial Law, it is also of interest to Civil Law.

Securities are those documents to which a patrimonial right is incorporated, in such a way that the exercise of the right is legally linked to the possession of the document.

The Civil Code and the Commercial Code also call them: securities, bills of exchange or credit documents.

THE FRUITS

The fruits are classified as natural or industrial fruits and civil fruits.

The natural fruit is the one that comes directly from the main one, whether or not man’s activity is involved in production.

The civil fruit is constituted by the compensation obtained, in cash or in kind, for the enjoyment of one thing of its patrimony by another person (rental of housing, dividend of shares).

THE EXTINCTIVE PRESCRIPTION. THE EXPIRATION OF RIGHTS

THE PRESCRIPTION

Among the natural facts that influence legal relationships, the passing of time is one of the most prominent.

Time can lead to the acquisition of certain rights or the extinction of a right.

In the first case we are faced with the acquisitive prescription, in the second case we are faced with an expiring prescription.

The difference between one and the other consists, mainly, in the scope of application.

The acquisitive prescription only applies to real rights susceptible to possession (as we will see in the corresponding topic) and the extinction prescription applies, instead, to all rights, both real and credit.

Now we are interested in developing the extinctive prescription and for this prescription to occur it is necessary:

1º.- The existence of a right that can be exercised.

2º.- Lack of exercise of the right or inertia of the holder thereof.

3º.- The passage of time determined by the Law.

In our Civil Code, the expiry prescription can act on real actions and on personal actions.

The ordinary periods for the prescription to occur in accordance with the provisions of the Civil Code are:

Real actions:

– Movable property: 6 years

– Real estate: 30 years

– Mortgage Action: 20 years

Personal actions:

– Ordinary: 15 years, if they do not have a specified term.

– Extraordinary:

5 years is applied to periodic benefits to avoid the debtor the bankruptcy and ruin of accumulating debts.
3 years: pay judges, lawyers, pharmacists …

The prescription of the actions is interrupted:

1º.- For bringing the action before the Courts.

2º.- Due to an out-of-court claim.

3º.- For any act of recognition of debt by the debtor.

THE EXPIRY

The expiration or decline of rights takes place when the law or the will of individuals indicate a fixed term for the duration of a right, in such a way that, after said term, it can no longer be exercised.

The expiration date differs from the prescription in the following notes:

1st.- The purpose of the prescription is to terminate a right because it has not been exercised. At expiration, the time during which this right can be enjoyed is set in advance.

2nd.- In the prescription, causes of suspension and interruption are admitted. In expiration, the extinguishing effect is radical and immediate.[/vc_column_text][/vc_tta_section][vc_tta_section i_icon_fontawesome=”fa fa-gavel” add_icon=”true” title=”Real rights” tab_id=”1535987318707-5eca5672-0a37″][/vc_tta_section]. REAL RIGHTS

1.1 THE REAL LAW

GENERAL CONCEPT

The classical doctrine on the notion of real law, sees in itself, a direct and immediate power that is exercised over the thing and that, consequently, generates a direct relationship with it.

Formerly, it seems, only real rights should have existed, which are the simplest and, at the same time, the most consistent with the materialism of those ages and times.

In the time of ancient Rome we find only one right: The exercise by the domestic head over people and things (women, children, servants, slaves, cattle, etc.).

This unitary power had the character of a real right, since the idea of obligation could not exist between the chief and his members whose personality was absorbed by him.

CLASSIFICATION OF REAL RIGHTS

Among the many criteria of jurists who have been carrying out studies on which have been recognized by the Law, we will follow the classification table admitted in Law and based on it, in successive topics we will develop each one of them in general.

1.2 OWNERSHIP AND DOMAIN.

ELEMENTS: SUBJECT AND OBJECT

Property is what belongs to a person, and in legal terms in its broadest concept. Property would be the appropriation of any good, (corporeal or intangible), and its legal relationship.

Dominion means to hold or dominate, therefore it could be accepted as the power exercised over what (things or goods) are promised.

The much debated difference between the civilistas, between property and domain, could be specified in that the DOMAIN has a “subjective meaning”, that is, the power that the owner has over the thing and THE PROPERTY has an objective meaning, that is, the relationship of ownership of the thing by the owner.

The right to property is regulated in Article 33 of our Constitution of 1978.

1º.- The right to private property and inheritance is recognized.

2º.- The social function of these rights will define their content, in accordance with the laws.

3º.- No one may be deprived of their assets and rights if not for justified cause of public utility or social interest, through the corresponding compensation and in accordance with the provisions of the law.

A) Elements

SUBJECT: It is the owner referred to one or more persons with sufficient legally recognized capacity to acquire or transmit, according to the title that accredits him, said acquisition or transmission and carry it out through the different legal means required by law.

OBJECT: It is the good (material or immaterial), thing or right, capable of being used.

For the SUBJECT, the property can be public or private:

PUBLIC PROPERTY, That which corresponds to the State or Public Corporations and which are intended to satisfy collective needs.

PRIVATE PROPERTY, That which may either belong to a single subject, individual or legal person, or it may belong to several subjects at the same time, such as co-ownership.

For the OBJECT, the property can be movable or real estate, subjecting each of them to a special regime.

B) Powers

Freely available:

Dispose of

Tax

Limit

Transform

Destroy

Free to use:

Use

Enjoy

To abuse

Exclusion:

Demarcate and demarcate

Enclosure

Claim

LIMITATIONS TO THE DOMAIN

If property in its ancient conception was considered a right by absolute nature, our Civil Code admits the existence of limitations, since the right should not allow abuse in the exercise of property.

Limitations can be classified as:

LEGAL: They are those imposed by the Law.

VOLUNTARY: Which can be imposed by the will of the owner who transmits the domain, or, on the contrary, that it continues to be so of the thing.

Among the LEGAL limitations are those of PUBLIC UTILITY and PRIVATE UTILITY.

PUBLIC UTILITY:

A) As a prototype of it “FORCED EXPROPRIATION”, which affects the entire domain.

B) Legal easements: which affect partial powers of the domain, such as those to enjoy or exclude, and which are condensed into administrative limitations, included in Administrative Law and which are dispersed in a multitude of laws that, for reasons of its purpose, affect the interest of security, health, national defense, housing, artistic treasure, etc …, such as urban police, roads, industry, land military, mountains, mines, waters, coasts, etc …

PRIVATE UTILITY:

A. NEIGHBORHOOD RELATIONSHIPS: Since the adjoining properties are a source of conflict and it is necessary to place reciprocal limitations on one of the owners’ home.

Our Civil Code regulates those that refer to:

1st. Damage caused by certain immissions, (excessive fumes), sewers, infective materials, etc.)

2nd. Those relating to distances with reference to plantations and construction.

3rd. Boundaries.

4th. Traffic Rights.

5th. Waters:

5º.1- Irrigation

5º.2- Drains

6th. Mediation.

7th. Lights and views.

B. SCORES AND RETRACTS: Score consists of the right of preference that a person has for the acquisition of a certain thing in the event that the owner wants to dispose of it and consequently, the power that assists him, so that, in the latter case, The owner states this, indicating the price and conditions of the sale.

Retraction consists of the right of preference that a person has for the acquisition of a certain thing, when the owner has alienated him, subrogating himself in the place of the buyer by means of payment at the same price that was delivered and originated contracting expenses.

Therefore, both rights are common in terms of their nature in terms of priority or preference rights, and they are different in the manifestation of said preference, since in the trial it is manifested before, and in the retraction, after the alienation.

C. PROHIBITIONS OF DISPOSING: Those that the person who transfers his property may impose on the acquirer any limitation as long as they are not contrary to the Law are considered.

The prohibition not to alienate, which in principle must recognize the legality of said pact protected by Art./1255 of the Civil Code and especially in mortis-causa transfers, following the will of the testator, always with the precaution of considering such clauses its validity, which is never unlimited.

The Mortgage Law in its latest reform admits the inscription in the Registry of the prohibitions imposed by the testator in acts of last will, in marriage agreements, dominations and other acts free of charge, provided that the current legislation recognizes its validity.

PROPERTY PROTECTION

If all rights must be normally protected by an action, it is the domain or property, who requires special protection and for this they are endowed and protect the right of property, namely:

THE CLAIMING ACTION, or old termination. It is given to repress a total disturbance to the property, tending to the recognition of the right of ownership and the restitution of the thing that is improperly retained by a third party. Art. 348 CC

THE NEGATORY ACTION. It is given to suppress a partial disturbance already made.

THE ACTION OR INTERDICT OF NEW WORK OR OLD WORK. For the purposes of preventing damage or harm that may be feared, either to obtain the suspension of a new work or construction process that partially damages property rights, or to demand protection measures through the emergency route when they are foreseen. damage to your property due to the poor condition of an adjoining building.

EXTINCTION

Among the different ways that exist to lose ownership, the generality or majority of the authors and jurists classify them as follows: VOLUNTEERS and INVOLUNTARIES, depending on whether or not they depend on the will of the owner or owner.

Voluntary modes:

ABANDONMENT: It is the waiver of the property right or any other real right that has been made voluntarily by the owner of the same.
ALIENATION: It is the transferring waiver of the property right, or what is the same, the transfer of the domain from one person to another and that can be carried out by intervive acts, or mortis-causa, and by gratuitous or onerous title.
>Involuntary modes:

DESTRUCTION: Of the thing, which has to be physical and total, since without an object the domain or any real right cannot subsist.
REVOCATION: That includes the loss of property that perfects at birth are resolved by a cause of ineffectiveness that occurred after their formation.
In our right, the following are considered causes of revocation:

The condition, either suspensive or resolutory.

The retro pact, which is a resolutive condition.

The revocation of donations for breach of the conditions or charges.

The revocation of donations for ingratitude.

The revocation of donations due to supervening or survival of children.

Other causes of extinction:

1º.- By Judicial Decree

2º.- By State Acts

3º.- By Forced Expropriation.

1.3 THE POSSESSION

CONCEPT

Outline the idea of what is natural possession as a state of fact whereby someone has a thing in their possession or enjoys a right.

Expanding its concept, we would understand as civil possession, that same tendency or enjoyment together with the intention of having the thing or right as theirs, therefore, it would be the power to have or enjoy a right that they do not own.

Following this doctrine, our legislation in its Art. 430 and following the Civil Code, admits possession as owner and possession as holder belonging to the domain, in this case, to another person.

All this seems to indicate that it identifies:

Possession as owner with civil possession and exercised with the intention of having the thing or right as one’s own.

The possession of the thing or of the right in a concept distant from that of the owner as natural possession (usufructuary, lessee, borrower, etc.).

ELEMENTS AND SCOPE OF THE POSSESSION RELATIONSHIP

SUBJECT: Both natural and legal persons can be subjects of possession.

PURPOSE: Only things or rights that are susceptible of appropriation can be the object of possession, therefore, those things that are outside the trade are excluded, such as common, public or sacred things, provided that they are affected to the public purpose or sacred.

WAYS TO ACQUIRE, LOSE AND RECOVER POSSESSION

WAYS OF ACQUIRING POSSESSION

1º.- BY material OCCUPATION of the thing or right possessed.

2º.- BY SUBJECTION of the thing or right to the action of our will.

3º.- BY OWN ACTS and legal formalities established to acquire such right.

WAYS TO LOSE POSSESSION

1º.- BY ABANDONMENT of the thing.

2º.- BY ASSIGNMENT made to another for onerous or gratuitous title.

3º.- DUE TO DESTRUCTION or total loss of the thing or to be out of business.

4º.- FOR THE POSSESSION of another even against the will of the old possessor, if the new possession had lasted more than one year.

The first two assumptions are for voluntary loss, while the next two refer to involuntary loss.

The first three also carry with them the loss of property, while the last implies a prescription for possession.

WAYS TO RECOVER POSSESSION

1º.- BY PRIVATE ACT, that is, by voluntary return.

2º.- BY ACT OF AUTHORITY, for example by virtue of the exercise of the injunctions.

POSSESSORY PROTECTION

It is necessary to distinguish the effects of the possession while it subsists and those that it produces in case of extinction due to the claim of the owner or another possessor of better right.

Among the first are:

POSSESSIONAL ACTIONS: Are those that protect the simple fact of possession, protecting the owner against any disruptor and without making any statement about this right.

The legal means of defense of this right are the INTERDICTS to retain and regain possession, and they may be exercised by any possessor who has a possession, be it natural or civil, either as owner or in a different concept.

The injunction to retain is exercised when the possessor is disturbed from his possession by acts that manifest the intention of dispossessing him and is intended to cease said disturbance.

The injunction to recover is exercised when the possessor has already been stripped of the possession and is intended to be restored therein.

Among the latter, the Code regulates:

Regarding the fruits, expenses and improvements, deterioration and loss of the thing, with different criteria, depending on whether the possession is of GOOD FAITH or BAD FAITH.

IN GOOD FAITH. The holder has the following rights:

1º.- Make the fruits received their own as long as the possession is not legally interrupted.

2º.- To be compensated in case some natural or industrial fruits are pending, of the expenses made in the production and to receive the part of the liquid product of the harvest proportional to the time of its possession.

3º.- To be compensated in the necessary expenses that you have made in the thing possessed.

4º.- Retain the thing until these expenses are satisfied.

5º.- Be compensated for expenses or useful improvements made.

6º.- Withdraw the luxury improvements that have been introduced in the possessed thing.

OF BAD FAITH. They have the following rights:

1º.- To be compensated for the necessary expenses incurred, but without being able to exercise the right of retention.

2º.- Withdraw the objects in which they have been invested in the expenses made in luxury improvements, provided that the property does not suffer deterioration.

1.4 COMMUNITY OF ASSETS. CO-OWNERSHIP OR CONDOMINIUM

CONCEPT

There is a Community when the property of a thing or a right belongs pro-undivided to several people. From the literal text of Art. 392 of the Civil Code, two concepts seem to derive, namely:

Community of Assets and Rights.

Co-ownership or Condominium.

Understanding that, the Community can fall on all kinds of rights although its most proper objective is those of real context, while the Co-ownership or Condominium, can only fall on specific and determined things.

The Community can be singular or universal, depending on whether it falls on specific rights (example: community of a thing or a credit), or on a heritage (such as the community between joint heirs).

It can also be derived from the will of those who constitute it (conventional community such as that which occurs between the partners), or from a foreign event to that will (as it exists between joint heirs).

CHARACTERS OF THE CONDO

In three points the characteristics of the condominium can be summarized, namely:

1.- Plurality of the Subject.

2.- Unity in the object.

3.- Attribution of quotas, which determines the proportion in which the co-owners have to enjoy the benefits and bear the charges.

COMMUNAL RIGHTS

Rights can also be framed in five important points:

1.- To the common use of the thing.

2.- To the enjoyment and conservation of the thing due to its participation or quotas that belong to it.

2.1.- Receive from the benefits the part proportional to your quota.

2.2.- Oblige the other participants to contribute to the conservation costs.

2.3.- Manage the thing in common with the other participants, but respecting the agreement of the majority.

2.4.- To the defense in court and vindication of the common thing. In this regard, the doctrine of the Supreme Court admits that any of the participants can appear in court (not if they do it for themselves only without citing the other co-owners), therefore the sentence handed down in their favor will take advantage of their co-owners, without them prejudices an adverse or contrary judgment.

3.- None of the co-owners may, without the consent of the others, make alterations in the thing, although it may be advantageous for all.

4.- Each co-owner shall have the right to request at any time the division of the common thing, and if it were invisible, that it be awarded to one by means of compensation to the others or otherwise it is sold.

5.- Every co-owner will have full ownership on his part and that of the corresponding fruits, being able to alienate, assign or mortgage and even substitute another in its use.

COMMUNITY ADMINISTRATION

By the MAJORITY SYSTEM, understanding by majority the real shares in the condominium.

If the majority is not found, or the agreement taken is seriously detrimental to those interested in the common thing, the judge will provide at the request of the party what corresponds, including appointing an administrator.

EXTINCTION

The Community can be terminated by:

1º.- Due to the loss of property rights, which can take place due to:

1.1.- Resignation of all community members.

1.2.- Prescription.

1.3.- Due to the extinction of the thing or right that is the object of the community.

2º.- By gathering all the quotas by a single owner, which can be made by sale to one of the participants, or to a third party, as well as by inheritance or exercise of the withdrawal action.

3º.- Due to the division of the common thing, since the Civil Code establishes the principle that no co-owner is obliged to remain in the community and each of them can request at any time that the common thing be divided.

Although there are some limitations on the right to urge the division, we will list in this first cycle only a few cases of them:

a) That there is an agreement to keep the undivided thing, provided that it is for a specified time that does not exceed ten years.

b) That in the donation (contract), the donor has imposed the indivision of the thing, although, it may not do so for more than that maximum period of ten years.

c) That the thing is indivisible, in which case the material division cannot be requested but the right to demand the dissolution of the community is not lost.

WAYS TO MAKE THE DIVISION

1º.- By common agreement between the interested parties.

2º.- Practice it by arbitrators or friendly members, appointed at the will of the participants.

3º.- Practice it judicially.

1.5 THE HORIZONTAL PROPERTY

CONCEPT

When the Civil Code in its title III defines the concept of the COMMUNITY OF ASSETS, it makes express mention in its Art. 396 of the Co-ownership of apartments or premises of a building of independent use, and as it wants that in recent years it has been thriving urban expansion, the aforementioned article has needed a broad normative support that regulates all the problems of this type of Co-ownership and in that sense it is expressed in the EXPLANATORY STATEMENT, which has served as the basis for the creation of Law 49 / 1.960, of July 21 on HORIZONTAL PROPERTY, which modifies the wording of Article 396 of the Civil Code and its concordant of the Mortgage Law, for registration purposes.

With this Law, it is intended to give proprietary character to the flats and premises, since it considers them as (separate property) with attributions to the owner of each apartment or premises of the singular and exclusive property right over it, with the power to freely dispose in Your right.

The legal regime of horizontal property is IMPERATIVE, as expressed in the first transitory provision of the aforementioned Law, ordering that it will govern all communities of owners in any of the forms that were created and the content of their statutes may not be applied contrary to what is established in this Law to the point that it granted a period of two years from the publication in the BOE (July 23, 1960), for the communities of owners already established, to adapt their statutes to the provisions of this Law in all that is in contradiction.

WAYS TO ACQUIRE PROPERTY

There is no legal theory that establishes regulations for acquiring property by flats, but as more common cases we could cite:

1º.- That of hereditary succession of the property or by division thereof when its co-owners agree to transform the pro-undivided right that would correspond to them, into private property of the different floors or premises of said property.

2º.- The one of alienation, that is to say by sale of the property by floors.

3º.- The initial constitution of the property by floors prior to the construction of the property.

CONSTITUTIVE TITLE

By constitutive title it is necessary to understand the legal act that gives life to this property, through the legal individualization of each floor or premises, which is carried out through its description and assessment in relation to the building of which it is part.

In its regulation, the Horizontal Property Law accredits said title stating the need to:

a) Describe the property as a whole.

b) Assign a consecutive number to each floor or premises.

The description of the property will be comprehensive and in accordance with what is required in the mortgage legislation.

Each floor or premises must state its boundaries, extension, plant and accessories (garage, attic, basements, etc.).

The participation fee that corresponds to each floor or premises will be set.

The title may also contain rules of constitution and exercise of rights not prohibited by law, in order to use or different from the building:

Facilities and services.

Administrative and government expenses.

Conservation expenses.

Insurance, etc.

With all this forming a private statute that may even be registered in the property registry.

OBLIGATIONS OF EACH OWNER

1st.- Respect the general facilities.

2nd.- Keep your apartment in a good state of conservation, compensating the owner for the damages caused by his carelessness and abandonment or that of his people for whom he must respond.

3rd.- Consent in your apartment the repairs that are necessary and that the property service requires, as well as the easements that could affect it based on the general interest and that is approved by the 4/5 parties of the owners.

4th.- Allow entry into your flat or premises for the purposes previously prevented.

5th.- Contribute according to the participation quota established in its title to the general expenses of the property. The apartment or premises will be affected to the payment of the aforementioned expenses, this credit being in favor of the community preferential to any other, to the point that, in the deed that transmits the apartment or premises for consideration, it must declare that it is up to date in the payment of the expenses since the acquirer will be his ulterior responsible.

6th.- The owners will elect a president among themselves who will represent them in court or out of it. They will also appoint a Secretary who will reflect in the Minutes the matters discussed. In the case of appointment of an Administrator, he may not belong to the community of owners. Appointments will be for one year, tacitly extendable for equal periods.

7th.- Corresponds to the Board of Owners:

7.1.- Name the charges.

7.2.- Approve the spending plans.

7.3.- Approve the execution of extraordinary works.

7.4.- Approve or amend the Statutes.

7.5.- Know and decide on other matters of interest to the community.

8th.- Attendance at the meetings will be personal or by legal or voluntary representation, if any flat belongs pro-undivided, a representative will be appointed, and if it is in usufruct, the attendance will be of the undivided owner, who will be represented by the usufructuary.

It will meet at least once a year, or when requested by the President or when requested by 1/4 of the owners or a number of them representing 25% of the participation quotas.

The President will convene at least six days in advance and the AGREEMENTS WILL BE:

Unanimously, when it implies approval or modification of the TITLE or BYLAWS.

In the first call the majority vote and in the second call the majority of the attendees, provided that they represent more than half the value of the fees.

The agreements of the board (Art. 17 of the Horizontal Property Law is amended by the Law of April 30, 1992 in procedural matters), will be reflected in a Minutes book filled out by the property registrar and in the form that is provided by regulation.[/vc_tta_accordion][/vc_column][vc_tta_section i_icon_fontawesome=”fa fa-hospital-o” add_icon=”true” title=”Real rights with domain limitation” tab_id=”1535987673996-4f8906c5-93de”][vc_column_text]PREAMBLE

If until now the real right of freehold has been studied, we will now do it with those real rights that cause a limitation to its owner. We will start with the real rights of enjoyment, distinguishing when said right falls on movable property and on real estate.

In those corresponding to the real right of enjoyment over movable property are:

♦ USUFRUCT

♦ USE

♦ ROOM

In those corresponding to the real right of enjoyment over real estate are:

♦ THE EASEMENTS

♦ THE CENSUS

♦ THE SURFACE

Ending with real property and security rights with:

♦ THE MORTGAGE

♦ THE GARMENT

♦ THE ANTICRESIS

CONCEPT

In a broad sense, usufruct is the right to use and enjoy the things of others.

Our legal system defines it as the right to enjoy the property of others with the obligation to preserve its form and substance, unless the title of its constitution, or the Law authorizes otherwise.

From this context, it follows that:

a) It is a subjective right, since it grants its holder a situation of power over some assets.

b) It is a real right, that is, it is exercised directly over things.

c) It is limiting, since it is necessary to set limits to the powers of enjoyment and especially the so-called temporary enjoyment generally for life.

d) Currently, it is a transferable right.

CONSTITUTION AND CONSTITUTIVE ELEMENTS

The usufruct arises from a legal business or from a legal provision.

Voluntary or business usufruct can be constituted “mortis-causa” (testamentary usufruct) or “inter-vivos”, either for consideration or free of charge.

The constitution by “inter-vivos” can be done by:

DISPOSAL OR SALE.

BY RETENTION.

In the first case, the constituent attributes the acquirer the right of usufruct and retains the property. In the second case, the property is alienated and the domain is reserved.

The constituent elements of the usufruct are:

The owner knot: What is the owner of the thing

The usufructuary: Who is the owner of the right, which can fall in favor of one person, several people or a legal person.

OBJECT: THINGS AND RIGHTS

Things: They are all those that are in the commerce of men and are capable of producing enjoyment.
Rights: They are all; provided that these are not very personal or non-transferable.

USUFRUCT CLASSIFICATION

ON THE REASON OF PEOPLE

Simple (one person).

Multiple (multiple people).

Simultaneous, or with current enjoyment of all (community of usufruct).

Successive, or when they enter the enjoyment one after another.

IN REASON OF THINGS

Own, if it falls on non-consumable things.

Improper, if it falls on consumable things.

Overall, it encompasses all the fruits of the thing.

Partial, includes part of the fruits of the thing.

Normal, it preserves the substance of the thing.

Disposition, which already conditions it when the usufruct is constituted.

Legal, established by Law, such as those corresponding to the father or mother with respect to certain assets of the children.

Voluntary, manifested by personal subjects:

* Inter-alive.

* Mortis-causa.

* Acquired by prescription.

IN CASE OF ITS DURATION

– Lifetime: (general rule in usufruct).

– In term.

RIGHTS AND OBLIGATIONS OF THE FRUIT USER

RIGHTS

Right to enjoy:

About the fruits:

1.- Natural

2.- Industrial

3.- Civil

About the accession (4)

1.- Natural fruits are the spontaneous productions of the earth and the breeding of animals.

2.- Industrial fruits are those produced by the properties for the benefit of cultivation or work.

3.- Civil fruits are the rent of buildings, the rental price of land and the amount of perpetual life annuities or other similar ones.

Natural and industrial fruits are perceived from the moment they are raised or separated. Civilians are paid day by day.

4.- The enjoyment of the action by document incorporated into the usufruct, such as the right to hunt on the farm.

Right to Improve:

Without altering its form or substance

Right to Dispose:

5.- Lease: The possibility of leasing.

6.- Dispose of: Power to dispose of.

In both actions to dispose will be limited until the term constituted in the usufruct.

OBLIGATIONS

Prior to Usufruct

Form Inventory: Valuing personal property, or describing the condition of real property.
Provide Bond: As exceptions to the provision of bond are:
To the usufructuary to whom it is dispensed.

The seller or donor who has reserved the usufruct of the expired or donated goods.

To beneficial parents regarding the assets of their children.

To the surviving spouse on the legal usufruct fee, if he has not remarried.

During the Usufruct:

Take care of the things.

Make the necessary repairs.

Pay charges and taxes that fall on the fruits or capital interests.

Pay the costs of lawsuits, procedural costs, etc.

Make the owner aware of any third party act that could damage or injure property rights.

At the end of the Usufruct:

Return the thing to the owner.

RIGHTS AND OBLIGATIONS OF THE OWNER

RIGHTS

♦ Carry out acts that tend to conserve the thing.

♦ Make works and improvements, as long as the value of the usufruct is not diminished, nor is the right of the usufructuary impaired.

♦ Dispose of the assets on which the usufruct is constituted.

♦ Dispose of your bare property by mortgaging it.

♦ Impose easements without the consent of the usufructuary and as long as they do not harm the right of usufruct.

♦ Inspect the performance of the usufructuary but without causing inconvenience.

OBLIGATIONS

♦ Deliver the thing to the usufructuary at the beginning of the usufruct.

♦ Not to exercise acts that could harm the usufructuary.

TERMINATION OF THE USUFRUCT

The causes of extinction are those listed in Article 513 of the Civil Code, namely:

Death of the usufructuary. Note: If it has been constituted on several persons, it will not be extinguished until the death of the last one.

Resignation of the usufructuary.

Prescription for the non-use of the right:

Six years in real estate.

Thirty years in real estate.

Loss of the thing.

Expropriation of the thing.

Consolidation by the meeting of usufruct and ownership in the same person.

Resolution of the right of the constituent, that is to say, that nobody can transmit to others more rights than those that one has over the usufruct thing.

Due to the expiration of the term for which it was established.

1.2 ROOM AND USE RIGHTS

CONCEPTS

The Rights of use and habitation are also real rights of enjoyment and limited domain.

THE USE

It was time, the right to use something without appropriating the fruits it produces.

Modern laws consider the right of use, as a kind of usufruct limited to the real needs of the user and his family and in this sense Article 524 of the Civil Code states that: “the use gives the right to receive the fruits of the things other than those that are sufficient to meet the needs of the user and his family, even if it increases.

THE ROOM

It gives whoever has this right the power to occupy someone else’s property, the necessary pieces for himself and for the people of his family.

DIFFERENCES WITH THE USUFRUCT

1º.- The usufruct can be legal or voluntary.

♦ El uso y la habitación no suele constituirse por disposición de la Ley.

2º.- The usufruct and the use can fall on all kinds of goods.

♦ The room only on buildings.

3º.- The usufruct is transferable.

♦ The use and the room no.

4º.- The use and habitation can be extinguished by abuse.

♦ In the usufruct no.

LEGAL REGIME

In the Civil Code they are governed by:

1º.- The constitutive title.

2º.- Failing that, by the provisions of the Law (Art. 523 Civil Code and following), established for usufruct.

RIGHTS AND OBLIGATIONS

RIGHTS

1º.- To perceive of the fruits of the thing, enough to satisfy your needs and those of your family.

2º.- Take advantage of the offspring, milk, wool, as long as they are enough for personal consumption and their own.

3º.- The roomer has the right to occupy the necessary rooms for himself in the house.

OBLIGATIONS

The obligations of the roommate are those legally contemplated for the right of usufruct protected by Art. 491 and following of the Civil Code.

EXTINCTION

The same causes contemplated for Usufruct (Art. 513 et seq. Of the Civil Code) and also “FOR THE SERIOUS ABUSE OF THE THING AND THE ROOM are grounds for extinction.

1.3 THE GUARANTEE RIGHTS

CONCEPT

By guarantee is understood any measure of reinforcement that is added to a credit right to ensure its good end.

In our Legal System, Real Guarantee Rights are:

THE GARMENT

THE MORTGAGE

THE ANTIRESIS

From this classification, our Civil Code, following the current of modern codes, considers:

– THE GARMENT, as a real “movable” security right due to its movable nature of the thing.

– THE MORTGAGE, as a real estate security right, depending on the nature of the property.

– THE ANTIRESIS, this is given a special and independent consideration to the pledge and mortgage.

Therefore, there are three basic notes that can be distinguished between GARMENT and MORTGAGE:

1º.- Prenda is supported by the possession of the thing, while Mortgage is supported by its registration in the Property Registry.

2º.- Pledge applies only to movable property and Mortgage on real estate.

3º.- Pledge carries with it the displacement in possession of the property, while in the Mortgage the property cannot be displaced.

CLASSIFICATION OF REAL GUARANTEE RIGHTS

MORTGAGE

Also called “Real Estate Mortgage” is a real right constituted as a guarantee of an obligation, on foreign real estate that belongs in the possession of its owners and that could be sold (auction) to satisfy with its amount that obligation when it is due and not paid .

MORTGAGE CLASSES

By its origin:

♦ Voluntary.- The one convinced by the parties.

♦ Legal.- The one established by the Law.

By the way:

♦ Express.- Those that have to be entered in the registry.

♦ Tacitas.- Registration is not required, but they are valid and effective.

By object:

♦ General.- If they affect all the debtor’s assets.

♦ Specials.- If only certain goods are taxed.

For the content:

♦ Ordinary.- They are those that ensure an existing and predetermined obligation.

♦ Security.- They are those that ensure an obligation of doubtful and indeterminate existence.

For the effects:

♦ Common.- Those that ensure the payment of the obligation, keeping the priority that is determined in the Registry.

♦ Privileged.- Those that take precedence over all the others.

MORTGAGE CONSTITUTION

PERSONAL ELEMENTS

That they are the creditor holder of the real mortgage right and the owner of the mortgaged property.

JURIDICAL CAPACITY

The constituent of the mortgage must be the owner of the thing and have a disposition over it, or be legally authorized to dispose of it.

REAL ELEMENTS

They include: The concept of the obligation that is guaranteed with the mortgage and the thing that is encumbered to ensure that obligation.

Mortgagable Things:

The real estate.

Alienable real rights, in accordance with the laws imposed on the same assets.

Non-mortgageable things:

Easements, unless they are mortgaged with the dominant property. However, the water easements could be mortgaged.

Legal usufructs, except for the widowed spouse granted by the Civil Code.

The use and the room.

However, the Mortgage Law establishes some rights that could be mortgaged with restrictions or special assumptions such as:

1º.- The right of usufruct, but the mortgage being extinguished when the usufruct ends due to an act beyond the control of the usufructuary. If the conclusion were by your will, the mortgage subsists.

2º.- The Nuda Property.

3º.- The Assets previously mortgaged.

4º.- The Voluntary Mortgage Right.

5º.- Surface Rights (pastures, water, firewood, etc.).

6º.- Administrative Concessions (mines, railways, canals, etc.).

7º.- The Goods sold with Retro Pact.

8º.- The Right of Withdrawal.

9º.- The Litigious Assets.

10º.- The Goods subject to Resolutory Conditions.

11º.- The Apartments or Premises under the Horizontal Property regime.

EXTINGUISHING THE MORTGAGE

Due to the same content in the constitution document that determines the extinction of the mortgage, but also, it can be extinguished for reasons that are independent of the guaranteed debt, namely:

By Renunciation of the Mortgage Right.

By Agreement between the Parties.

For Loss of the Mortgaged Property.

By Consummation exercising the Mortgage Action by corresponding Executive Procedure.

For the Execution made to a previous or preferential Mortgage.

By bringing together in the same person the Owner and the Holder of the Mortgage Right.

To End the Term, or the Resolutory Condition.

By Denunciation of the Mortgagor or Owner of the Encumbered Thing.

By Prescription.

Due to the Expiration of the Registration.

For Seat Cancellation.

NOTE.- Third parties are not affected by extinction, as long as the registration in the Registry is not canceled.

THE ANTIRESIS

It is a form of real guarantee on real estate whose essential characteristic is not only to pass on the value of the obligation to the creditor, but also the total or partial use of the fruits of the thing. Article 1881 of the Civil Code, determines that these fruits are applied to the payment of interest, if they were due, and after or when they were not debits to the satisfaction of the capital of your credit.

RIGHTS OF ANTIRETIC CREDITOR

1º.- Receive the fruits of the property.

2º.- You do not acquire the property due to lack of payment within the agreed term, but in this case, you may legally request the payment of the debt or the sale of the property.

3º.- In the case of sale, you have the right of preference over the price obtained with the sale of the thing.

OBLIGATIONS OF THE ANTIRETIC CREDITOR

1º.- Pay the contributions and charges that weigh on the farm, the conservation expenses, which will be deducted from the fruits to be received.

2º.- If you are in possession of the property, you will have the obligation to take care of it with the diligence of a good family man.

RIGHTS OF THE DEBTOR OR OWNER

You can have all the rights to the farm, that is:

– Constitute a mortgage.

– Rights of enjoyment, such as usufruct and others.

EXTINGUISHING THE ANTIRESS

The Code expressly authorizes the waiver of the antichresis stating that the creditor can, in order to get rid of the expenses of the estate, oblige the debtor to enter the enjoyment of it again.

THE GARMENT

It is a real right of guarantee, over personal property, established as guarantee of an obligation by virtue of which, the thing is delivered to the creditor in order that it remains in its possession until the full payment of the credit, and in case of default, urge the sale of the thing pledged and with its amount satisfy the obligation that had been guaranteed, therefore:

It is a real right, because it falls on a specific and determined thing.

It is a real right of guarantee because it ensures the fulfillment of an obligation.

It is movable because it always falls on movable property.

It is indivisible, because it guarantees all the debt.

CONSTITUTION OF THE GARMENT

The most common means is CONTRACT.

ELEMENTS

Your personal items are:

On the one hand, the PIGNORATICIO CREDITOR, who is the owner or creditor.

On the other hand, the DEBTOR OR A THIRD PARTY, who encumbers his thing with a pledge to ensure the effectiveness of that credit.

Its actual elements are:

The things that are pledged, and

The obligation that the pledge insures.

Therefore, they are essential conditions that things:

Be furniture.

Be in the men’s trade.

Are susceptible to possession.

Its formal elements are: The delivery of the thing, except for the garment without displacement.

It is constituted by contract, but for it to take effect against a third party it is necessary that the certainty of the date of its incorporation be recorded by public document.

THE GARMENT WITHOUT DISPLACEMENT

It is established in order to provide an adequate form of guarantee for all movable property that is difficult or impossible to move, such as agricultural pledge as a means of consolidating agricultural credit.

MOBILE MORTGAGE

It is a real right of guarantee, which by means of the registration, holds things or goods of a movable nature, which continue to be in the possession of their owner to the payment of a previously contracted obligation.

They are personal elements:

THE CREDITOR

THE DEBTOR

And it falls on:

Commercial establishments.

Automobiles and other motor vehicles.

Aircraft.

Industrial machinery.

Intellectual property.

Industrial property.[/vc_column_text][/vc_tta_section][/vc_row][/][/][vc_row][vc_column][vc_text_separator title=”Contract and Obligations” title_align=”separator_align_left”][vc_tta_accordion style=”flat” spacing=”10″ gap=”10″ c_icon=”triangle” active_section=”45″ collapsible_all=”true”][vc_tta_section i_icon_fontawesome=”fa fa-file-text-o” add_icon=”true” title=”Contract and Obligations” tab_id=”1536075862656-24c53165-e9b4″][/vc_tta_section].1 THE CONTRACT

CONCEPT

The Civil Code in Title II of Book IV in its Art. 1254 and following, establishes a general regulation for obligations and contracts, but does not define what the contract is.

On the one hand, Art. 1,089 lists it among the sources of obligations, on the other, Art. 1,254 says that the Contract exists as long as one or more persons agree to be bound by another or others.

ESSENTIAL ELEMENTS OF THE CONTRACT

The Civil Code establishes that there is no Contract if the following requirements are not met:

1º.- Consent of the contracting parties.

2º.- True object that is the subject of the contract.

3º.- Cause of the obligation that is established.

CONSENT

For there to be consent, it is necessary to have the capacity to contract, so that those people who:

They are non-emancipated minors.

The crazy, insane, and deaf-mutes who cannot write.

OBJECT

The object must be “It is true that it is a matter of contract.”

They can be objects, all the “Things” that are not outside the commerce of men and all “Services” that are not contrary to the laws or good customs.

The object of the contract must meet certain requirements by legal imperative, namely:

♦ Possibility, of the Thing or Service.

♦ Legality, for the “Things”, which it requires is not outside the commerce of men and for the “Services”, which are not contrary to the laws and good customs.

♦ Determination, the “Thing” must be determined in terms of its species, understanding it as not possible to be confused with a different one.

♦ Cause, which must be fair, lawful and moral. Contracts without cause do not produce any effect, so for example, a judge could not protect the claim of a creditor who demanded the payment of an obligation, if it was not founded on a just and legal cause.

VICES OF THE ELEMENTS OF THE CONTRACT

Consent: There will be a vice, when the consent has been formed in a defective way. Art. 1265 Civil Code is expressed in the sense that the consent given by ERROR, VIOLENCE, DOLO or INTIMIDATION will be null.

♦ The error occurs when when carrying out a business, it would not have been wanted to carry out if the reality had been known exactly, or it would have been otherwise, this error is called: OWN ERROR.

♦ Violence occurs when an irresistible force is used to extract consent.

♦ Delinquency occurs when, with insidious words or machinations on the part of one of the contracting parties, the other is induced to enter into a contract that, without them, he would not have made.

CLASSIFICATION OF CONTRACTS

CONSENSUAL, REAL AND FORMAL

Consensual: They are perfected by mere consent

♦ Real: The delivery of the thing accompanies the consent.

♦ Formal: They are those that for their full constitution and effectiveness are required in a special way (Public Deed).

UNILATERAL AND BILATERAL

♦ Unilateral: They are those that create obligations in charge of one of the parties exclusively, such as the loan.

♦ Bilateral: They are those that create reciprocal obligations between the contracting parties.

MONEY AND FREE OR PROFITABLE

♦ Onerous: When the sacrifices made by the parties are compensated in the benefit they obtain, such as the sale and purchase, which, due to the obligation to deliver something, requires the consideration of paying its price.

♦ Free and lucrative: When the benefit of one of the parties is not accompanied by any sacrifice in return (donations).

COMMUTATIVE AND RANDOM

♦ Commutative: They are those onerous contracts that the equivalence relation is set in advance by both parties (Purchase-sale).

♦ Random: They are, on the contrary, when one of the parties or both reciprocally, are obliged to give in equivalence to the other, in the case of an uncertain event, or that has to occur indefinitely.

PREPARATORY, MAIN AND ACCESSORIES

Preparatory: When they are preliminarily established applicable to the conclusion of a subsequent contract (promise, mandate).

Main: Those that fulfill the purpose proposed by the parties (sale, lease, etc.).

Accessories: That have their existence as a consequence of another previous contract, mortgage, pledge).

INSTANTANEOUS, DURABLE AND PERIODICALLY RUN

Instantaneous Execution, are those that generate obligations of a single deal in the purchase-sale contract the delivery of the thing.

Durable: those that generate obligations that imply permanent conduct (in the deposit contract, keep the thing deposited).

Periodic execution: those that generate obligations whose fulfillment implies carrying out repeated acts for a certain time (in the life annuity contract, paying the rent every month).

PRE-CONTRACT

According to the most abundant jurisprudence of our Supreme Court, the pre-contract is a contract by which the parties undertake to enter into another contract in the future (already prepared contract) that they currently do not want or cannot conclude.

TERMINATION OF CONTRACTS

The Civil Code (Articles 1290-1299), regulates termination as the legal remedy for the repair of an economic damage that the contract causes to certain people, the contract is valid, but because of that damage the injured people are granted the RESCISSORY ACTION, as long as the injured party lacks other legal recourse to obtain reparation (Art. 1294 Civil Code).

The Law establishes the following contracts subject to TERMINATION:

1º.- Those held by the guardians without authorization from the Family Council, provided that the minors or disabled have suffered an injury to more than ¼ of the value of the things.

2º.- Those held on behalf of the “Absentees”, provided that they have suffered the injury referred to in the previous point.

3º.- Those entered into in fraud of creditors, when they cannot collect in another way what is owed to them.

4º.- Contracts that refer to ligitinous things, for example to alienate the thing whose property is in dispute.

5º.- Any others that are specially determined by the Law.

As the termination supposes to deprive of effectiveness to a valid contract, it is logical that the legitimizing action must be exercised by the injured party and his successors. The termination requires the return of the things that were the subject of the contract with their fruits, or the price with their interests and the term to exercise the action will be four years.

2. PREPARATORY, MAIN AND ACCESSORY CONTRACTS.

2.1 CONTRACT OF SALE

(Art. 1445 CC). By the contract of sale, one of the contracting parties is obliged to deliver a certain thing and the other to pay for it a certain price, in money or sign that represents it.

♦ It is consensual, since it is perfected by mere consent.

♦ It is onerous, because it determines financial displacements or sacrifices for each of the parties.

♦ It is reciprocal, because the obligations bind buyer and seller.

♦ It is commutative or equivalent, since the obligation assumed by one party is considered the equivalent of the one that another party undertakes.

ESSENTIAL ELEMENTS OF THE PURCHASE AND SALE

ABILITY

(Art. 1457 CC) As a general rule, all persons authorized by this Civil Code to contract and be bound by may enter into the contract of sale.

Notwithstanding, the Law determines the following prohibitions: (Art. 1459 CC)

1º.- The guardian in the purchase of the goods of the person who is under his or her guardianship.

2º.- The agent, the assets of whose administration or alienation they were in charge.

3º.- The testamentary executors of the assets entrusted to them.

4º.- Public employees on the purchase of State assets, whose administration they were in charge of.

5.- Persons in charge of or related to the Administration of Justice, over property or rights subject to litigation before the Court where they exercise their functions.

OBJECT

Both bodily and intangible things will be the object of the sale, meeting the following conditions:

1º.- Present or future existence.

2º.- The thing has to be determined

3º.- It must be a matter of lawful trade.

PRICE

(Art. 1445 CC) It must be true, in money or sign that represents it.

In the transfer of property in the sale, it can be agreed that the sale price is postponed, while the seller fulfills his delivery obligation and as a guarantee in his favor, it is usually agreed that, despite the transfer made, the Buyer does not acquire the domain until he has paid the full price.

This legal figure is called: “PURCHASE-SALE WITH RESERVATION OF OWNERSHIP AGREEMENT”.

EXCEPTIONS TO THE CONSUMPTION AND PERFECTION OF THE PURCHASE SALE

As exceptions to the consummation and perfection of the sale, they are:

1º.- The earnest money (Art. 1454 CC). The buyer can deliver a sum of money as a down payment, also called ARRAS. This contract will not be understood as perfect since it is admitted that they may be lost or terminated, the buyer agreeing to lose them or the seller to return them duplicates. The earnest money therefore has a penalizing purpose.

2º.- When a sale is made under suspensive condition, in which case the sale is not completed until the condition is fulfilled.

PURCHASE AND SALE EFFECTS

The sales contract originates the birth of general obligations for the seller and the buyer, which are the delivery of the thing and the payment of the price, respectively.

DELIVERY OF THE THING

The seller is obliged to deliver the object of the contract, as it was when the sale was perfected, with its fruits, if produced, from that same day.

The thing is understood to have been delivered when it is placed in the “power and possession” of the buyer (Art. 1462 CC).

When the sale is made by public deed, the granting of this will be equivalent to the delivery of the thing.

If it is furniture, delivery will be made by:

♦ The delivery of the keys to the place where the things are stored or kept.

♦ By the sole agreement or agreement of the contracting parties if the thing sold cannot be transferred to the buyer at the time of sale or if the buyer already had it in his possession for some other reason.

♦ If the thing is “intangible”, delivery shall be understood as the fact of placing the ownership titles in the possession of the buyer.

PLACE

The parties are free to fix it.

EXPENSES

They are paid by the seller of the seller and the transfer charges are paid by the buyer, unless otherwise agreed.

WEATHER

If there is no condition, the delivery obligation arises at the moment of the perfection of the contract.

2.2 THE EXCHANGE

(Art.1538 CC) The exchange is a contract by which each of the contracting parties is obliged to give one thing to receive another. In reality, in the swap there is a barter of property rights.

It has the same characteristics as the sale and is substantially different due to the lack of a certain price.

At present, the swap regarding the legal figure that arises when the owner of a plot transfers his property to another so that he can build a building on it, in exchange for the delivery of certain homes, commercial premises or parking spaces, is gaining importance.

2.3 PROMISE OF SALE

Having conformity in the thing and the price, the promise to buy and sell will entitle the contracting parties to mutually claim the fulfillment of the contract.

2.4 OPTION

It is a contract by which one party grants another, within a limited and fixed term, to decide on the conclusion of a main contract.

While the term to choose lasts, the grantor of the right of option is bound by the contract, therefore, he will not be able to alienate or encumber the object of the option.

When exercising the option, if the grantor refused, it is up to the Judge to study the contract to make it effective.

EXTINCTION

The option contract is extinguished by:

1º.- Its fulfillment.

2º.- For the resolution in case of non-compliance.

3º.- Due to the expiration of the period indicated for its execution.

2.5 RETRACT

It is that contract by virtue of which, when making it, the seller reserves the right to recover the thing sold, by delivering the price and necessary expenses made in the thing and compliance with the agreement.

2.6 LOAN AND LOAN.

By the loan contract (Art.1740 CC) one of the parties gives something to the other to use for a certain time and return it.

If the thing is money or another fungible thing that must be returned as much of the same kind and quality, it is called a LOAN.

If the thing is non-expendable, it is called COMFORT.

THE SIMPLE OR MUTUAL LOAN

Since the loan, also called MUTUAL, falls on things that are consumed by use (money), Art. 1753 CC specifies that the borrower acquires the property of the same and is obliged to return “as much” of the same spice or quality.

One of the characteristics of the loan is that, normally, it is free, interest is not owed unless it had been expressly agreed.

Contrary to the loan, the COMODAT falls on non-expendable items and is only based on use for a specified time, after which it must be returned.

In reality it is a loan for use, whose characteristics are FREE AND TEMPORARY DONATION.

THE PRECARIOUS

The institution of the precarious is in a right incardinated within the regulation of the COMODATO.

2.7 THE MANDATE

(Art. 1709 CC). By the mandate contract, a person is obliged to provide a service or do something, on behalf of or commissioned by the other.

For a long time, Doctrine and Jurisprudence have identified MANDATE with REPRESENTATION, and the mandate was not conceived without a power of representation.

At present, the separation of the two is already the dominant doctrine, endowing the mandate as sufficient power to carry out an assignment. Representation constitutes another legal relationship (eg partnership, employment contract…) in which the attorney-in-fact is attributed to issue a declaration of will in front of third parties on behalf of the principal.

The mandate can be general, which includes exercising all the principal’s businesses, or special for a specific business. It may also be express or tacit, either because the mandate has been carried out by public or private document, or because it has been given orally.

The mandate expires:

By revocation of the principal.

By resignation of the agent.

Due to the death, interdiction or bankruptcy of the principal or agent.

2.8 MEDIATION OR BROKERAGE

The provision of services by mediators or brokers is not regulated in the Civil Code, but is corrected by jurisprudence and custom.

The Supreme Court has defined the activity of the mediator as a contract, by virtue of which one person instructs another to inform him about the opportunity to conclude a legal business with a third party, or to serve as an intermediary, taking the appropriate steps to obtain the agreement of wills aimed at its realization, in exchange for a fee, (STS 2.5.63).

The mediator is not bound to any of the parties by ties of dependence, subordination or representation, only after the conclusion can he assume the representation, entering, in this activity, in the field of mandate, representation, etc.

The mediator’s right to remuneration arises from the mediation contract when the main business is carried out, understood as being carried out to perfection. The mediator does not have to wait for the consummation of the same, unless otherwise agreed.

The action to demand collection prescribes at 15 years of age, understanding that if the mediator is a mediation professional, the 3-year prescription typical of professionals must be applied.

EXTINCTION

By conclusion of the business or matter.

By resignation of the offeror, also called revocation of the order (1).

By resignation of the mediator, also called withdrawal.

(1) The exclusivity that has been given to the mediator does not mean anything more than the obligation not to give another the same assignment. Regarding the revocation of the order, it is necessary to take into account “good faith”.

2.9 THE DONATION

(Art. 618 CC). “The donation is an act of liberality, by which a person freely disposes of one thing in favor of another, who accepts it.”

It is therefore:

♦ An act of liberality.

♦ It is a free act.

♦ It is a device act, accepted by the donee.

The cause of the donation, for the Supreme Court, is constituted by the mere liberality understood as the purpose of the donor in the enrichment of the donee and consequently, the correlative impoverishment of the donor’s patrimony.[/vc_column_text][/vc_tta_section][/vc_tta_accordion][vc_empty_space][/vc_column][/vc_row][vc_row][vc_column][vc_text_separator title=”The property registration” title_align=”separator_align_left”][vc_tta_accordion style=”flat” spacing=”10″ gap=”10″ c_icon=”triangle” active_section=”45″ collapsible_all=”true”][vc_tta_section i_icon_fontawesome=”fa fa-building” add_icon=”true” title=”The property registration” tab_id=”1537979731988-3418cded-1e2c”][/vc_tta_section].1 THE REGISTRY

CONCEPT

All real estate management is based on the PROPERTY REGISTRY.

The security provided by the Registry in the transfer of the domain or in the encumbrance of the Real Rights is fundamental, when it comes to the transfer of real estate.

It is the acquirer who, by virtue of the principle of publicity granted by the Registry, who will have made a perfectly safe acquisition with the exact knowledge of life from his registration of that property or right that he wishes to acquire, knowing:

The well inscribed.

Who is qualified to transmit it.

If there are inherent liens.

The Mortgage Law in its Article 1 says that the Property Registry has the purpose of the Registration or Annotation of ACTS and CONTRACTS related to the domain and other Real Rights over real estate, so it is the basis of the legal text, the Registry: “As the administrative institution whose essential purpose is the official ADVERTISING of legal situations relating to real estate.”

THE INSCRIPTION

In a broad sense, Registration is synonymous with Registration (Art. 41 R. Mortgage), however in a strict sense, registration is its own entry in which it reflects the life of a property or right in terms of its constitution, modification , transmission or extinction of the domain or real right.

BASIC PRINCIPLES OF PROPERTY REGISTRATION

1º.- Generally, the inscription is VOLUNTARY. The existence of a real right regarding its constitution, modification, transmission or extinction, is carried out outside the registry. This only record everything that has happened in civil life, hence the registration is only a voluntary and declarative fact.

Registration is not necessary for the document to be valid, hence the voluntary nature of its registration, except for the Mortgage, which must be registered by imperative of the Law, since it is an essential requirement for it to be validly constituted.

Article 6 of the LH regulates that the registration of titles in the Registry may be requested indistinctly:

a) By which you acquire the right

b) By the one who processes it

c) By whoever has an interest in ensuring the right that must be registered

d) By any representative of any of them.

2º.- The inscription produces an instantaneous effect of ADVERTISING. What will allow the exact knowledge of a Title and therefore to the reading of the corresponding entry to know its history so that the interested party could never claim ignorance of the registered title.

3º.- The inscription responds to a principle of PRIORITY. In such a way that the first one who registers a right prevails over the other rights registered later since it is an accepted legal norm that whoever arrives before the Registry “PRIOR INTEMPORE” has preference in law “POTIOR IURE”, understanding as who the date prevails first of its registration and not that of the registered title.

4º.- With the inscription, the Registry becomes a faithful historian of all the incidents that chronologically affected the registered title, and these successive annotations duly ordered is what Art. 20 LH calls “SUCCESSIVE DETRACT”.

OTHER FORMS OF REGISTRATION

Apart from the inscription itself to which we have mentioned, there are other forms of inscription such as:

The preventive record.

The marginal note.

PREVENTIVE ANNOTATIONS

They are entries of temporary validity tending to publicize those real estate affected in some judicial litigation and to ensure the final result of that trial, or that publicize the existence of a right in the process of registration.

The LH strengthens the preventive annotation in the cases reflected in its Art. 42, namely:

♦ Preventive annotation of demand.

♦ Preventive annotation of the seizure.

♦ Preventive annotation for execution of sentence.

♦ Preventive annotation of kidnapping.

♦ Preventive annotation of disability claim.

♦ Preventive annotation of hereditary right in the abstract.

♦ Preventive annotation of legacies.

♦ Preventive annotation of refactional loans.

♦ Preventive annotation due to the impossibility of registering Titles.

♦ Preventive notation in favor of the creditors of a bankruptcy or bankruptcy inheritance.

Art. 86 LH provides that preventive annotations, whatever their origin, will expire after FOUR YEARS, unless they have a shorter expiration period specified in the Law.

DIFFERENCES WITH REGISTRATION

The preventive annotation is temporary and expiring.

The inscription is indefinite.

THE MARGINAL NOTE

It is a simple entry that the Law allows in certain cases and that are registered regardless of the registration itself:

If it modifies a registered right it is called: OF LEGAL MUTATION.

If it acts as a preventive entry, it is called: EQUIVALENT FUNCTION.

If it facilitates the mechanics of the registry office it is called: OFFICE.

TITLES. RIGHTS. FINCAS

Article 33 of the Mortgage Regulations defines the Title as: “The public document or documents immediately based on the person in whose favor the registration is to be made.”

In a material sense, the title refers to Art. 2 of the LH when expressing that the translational or declarative titles of ownership of the real estate or of the real rights imposed on them may be registered.

In a formal sense, the title, make reference to Art. 9 of the LH of manifest that for its registration the title must be consigned in a public deed.

Starting from this concept of Title, we will say that it is the bearer of a RIGHT, which presupposes that what is registered is the right that one has over said title, that is, that the rights that one has over a property, are registered through a document, called TITLE.

FINCA.- It is a delimited land area where your belongings are within it.

FINCA.- In the registry sense, it is everything that opens a page in the Registry, it is the primary reality of the property since it intends to publish its legal history.

REGISTERED SECURITIES

Article 2 of the LH in its first two numbers recognizes as eligible for registration:

1º.- The translational or declarative titles of ownership of the real estate or of the real rights imposed on them.

2º.- The titles in which are constituted, recognized, transmitted, modified or extinguished rights of usufruct, use, habitation, emphyteusis, mortgage, censuses, easements and other any real rights that fall on real estate.

The Mortgage Regulation also extends the registration of ACTS AND CONTRACTS with real significance that modify or may modify powers of ownership over real estate or inherent to Real Rights.

ENROLLABLE RIGHTS

The so-called real rights, but that fall on real estate, are considered as registrable rights, namely:

The domain.

Those of use and usufruct.

All real estate rights.

The right to lease in the cases provided for in the Law.

The option.

The statutes of the buildings subject to the Horizontal Property regime.

THIRD IN GOOD FAITH

A “third party” is understood as the third accessor in a transmission.

In an inscription, the registration holder will be “first”, the buyer will be “second”, therefore, if there were a new transmission, we would find the so-called “third”.

From this concept it follows that for the figure of “third party” to appear and the asset protected by the Registry, it is necessary to carry out two transmissions and then it is protected against anyone who has legal situations with the registered or “first” owner.

A third party “in good faith” is understood to be someone who acquires the property with ignorance of those legal situations, admitting a presumption of legality in their favor, if the opposite is not proven.

The requirements to protect the third party in good faith are given by Article 34 of the LH:

Acquisition for consideration.

That the person who transmits it has the powers to do so.

REGISTRY PROCEDURE

In order for the registration procedure to be executed, it is necessary:

? The previous extra-registry production.

? The expression in a public and authentic documentation.

? The formation of a declaration of will of the interested individual addressed to the Registrar in which he states that the seat is practiced (APPLICATION).

? The presentation in the Registry of the titles or documents that justify the claim made.

Once the prerequisites for registration have been met, the Registry proceeds to comply with its procedure as follows:

? Training by the Registry official of a judgment on the legality of the request and its decision.

Against the decision that leads to the refusal of the seat of presentation, the interested party may appeal to the Judge of First Instance with a complaint appeal, who, hearing the Registrar, will resolve accordingly.

THE PROPERTY REGISTRATION

Its location was regulated by the old LH that established the Registry office for each head of the judicial district.

It is confirmed by the current Art. 275 LH, despite the fulfillment of the requirements demanded in the Ministry of Justice at the proposal of the General Directorate of Registries and Notaries.

It may also agree on the establishment of new Registries in certain localities, as well as the modification or deletion of existing ones, however the possible participation of the Autonomous Communities in the establishment of territorial demarcations must also be taken into account.

THE BOOKS OF THE RECORD

Article 362 of the Mortgage Regulations provides that the following shall be kept:

1º.- Book of inscriptions.

2º.- Registry operations log.

3º.- Book of the disabled.

4th.- Index of farms (rustic and urban) and Index of people.

5th.- Statistics book.

6º.- Book of annotation of suspensions of judicial, labor and administrative orders.

7th.- Inventory

8º.- The auxiliary books and notebooks that the Registrars deem appropriate.[/vc_tta_accordion][/vc_tta_section][/vc_column][vc_empty_space][/vc_row][/][vc_row][vc_column][vc_text_separator title=”The financial system” title_align=”separator_align_left”][vc_tta_accordion style=”flat” spacing=”10″ gap=”10″ c_icon=”triangle” active_section=”250″ collapsible_all=”true”][vc_tta_section i_icon_fontawesome=”fa fa-university” add_icon=”true” title=”The financial system” tab_id=”1537979579207-cec0db02-9b5c”][/vc_tta_section].1 FINANCIAL SYSTEM

CONCEPT

It is made up of a set of Institutions, assets and markets, and its main purpose is to channel the surpluses of savers towards financing needs.

The economic agents that operate in financial markets are classified into spending units with a deficit, financing needs, and spending units with a surplus, with savings capacity. All these units are identified with families, companies and Public Administrations.

FINANCIAL ASSETS

They are used to transfer funds from spending units with a surplus to spending units with a deficit.

Generally, in a financial market as complex as the current one, this contact will not be direct but will be based on specialized exchanges or mediators.

CHARACTERISTICS OF FINANCIAL ASSETS

Liquidity: It depends on the ease in which it can be transformed into a means of payment without suffering losses. Money will be the most liquid asset.

Risk: It depends on whether the issuer complies with what is agreed in the amortization clauses upon maturity, as well as that throughout its life it attends to the payment of interest.

Profitability: These are the results derived from the corresponding investment.

These might be:

Direct and known, such as the interests of bonds, obligations and other fixed income securities.

Direct and random, such as dividends from stocks or equity instruments.

Indirect, produced by tax deductions.

TYPES OF FINANCIAL ASSETS

♦ Metallic coin

♦ Tickets

♦ Demand deposits

♦ Savings and term deposits

♦ Certificates of Deposit

♦ Promissory Notes and Treasury Bills

♦ Bonds and Obligations of the State

♦ Actions, etc.

FINANCIAL MEDIATORS AND INTERMEDIARIES

According to the function they perform, two types of institutions must be distinguished: Mediators and Intermediaries.

Mediators are limited to facilitating the transfer of funds from lenders to borrowers. They do not create new assets by simply facilitating the linking of existing primary securities.

Intermediaries are agents who lend and borrow funds; They acquire the titles issued by the borrowers (primary titles) and sell titles of different characteristics (secondary titles) to the lenders.

Among the mediators we can find the “brokers”, who act as simple commission agents, or the “dealers”, who act by buying and selling assets on their own account and assuming a risk.

The best-known example of a financial intermediary is the commercial bank, which lends funds to deficit spending units and in turn raises funds from spending units with surpluses.

FINANCIAL MARKETS

The place, mechanism or procedure through which financial assets are exchanged and their prices are set is called the Financial Market.

Currently, with the advancement of information technology and telecommunications, the physical place has lost part of its former importance since there are markets where transactions are carried out by “orders” even without the physical existence of the title, which is reduced to an accounting entry .

Financial markets fulfill important functions:

They put the intervening agents in contact, be they families and companies, or mediators and intermediaries.

They set the prices of assets at the time of issuance (primary market) or at a later time (secondary market).

They provide liquidity to the security by allowing, through the secondary market, its conversion into money without a significant loss of value.

They reduce intermediation time and costs by facilitating the search for a counterparty for each operation.[/vc_column_text][/vc_tta_section][/vc_tta_accordion][vc_empty_space][/vc_column][/vc_row][vc_row][vc_column][vc_text_separator title=”Real Estate Valuations” title_align=”separator_align_left”][vc_tta_accordion style=”flat” spacing=”10″ gap=”10″ c_icon=”triangle” active_section=”45″ collapsible_all=”true”][vc_tta_section i_icon_fontawesome=”fa fa-eur” add_icon=”true” title=”Real estate appraisals” tab_id=”1537979451804-7f8adc92-9493″][/vc_tta_section]. BASIC PRINCIPLES OF VALUATION

1.1 CONCEPT OF REAL ESTATE VALUATION

The objective of the Real Estate Valuation is to determine the market value, investment, insurance and other value concepts related to a certain interest or interests, of an urban parcel, of a building, of a warehouse, etc.

This definition written by Professor Josep Roca Caldera of the Polytechnic University of Catalonia in his chair of Legal Architecture, Urban Law and Valuations of the TS School of Architecture of Barcelona is, in our opinion, the one that best frames the intention of the concept «VALUE »For a Real Estate Advisor.

1.2 PURPOSES OF REAL ESTATE VALUATION

The variety of real estate valuations will be preceded by the intention of the destination and of the clients or applicants according to the utility, quality, profitability and situation of the supply and demand of the property to be valued and that, as an example, we report below:

The purchase and sale of real estate: Determine sale prices and advise the seller and / or the buyer in the transaction.

Tenant issues: Determine the valuation related to conservation or improvement works and its part that can be attributed to rentals, advise on the types and prices of rent appropriate to the investment.

Financing and credits: Determine the mortgageable value of a real estate, advise on the best product in the mortgage market for its acquisition, etc.

Insurance: Estimate the value of the “destructible” portions of a property for the purpose of determining insurance.

Urban management: Determine the value of the land for the purpose of expropriation, acquisition, etc. In a system of swaps or transfers of use, determine the amount. Establish reparcelling criteria.

Taxation: Determine the value of the property for the purposes of real rights, rural and urban contribution, wealth tax, transfer and any other.

1.3 CONCEPT OF REAL ESTATE

The concept of real estate is defined by the Royal Academy of the Spanish Language as “good that cannot be transported” and the Civil Code, in its article 333, defines it as “All things that are or may be the object of appropriation” .

Taking into account these concepts, we can consider the following as real estate according to Spanish legal regulations:

The land, buildings, roads and constructions of all kinds attached to the ground.

The trees and plants and the pending fruits, as long as they are attached to the earth or form an integral part of a property.

Everything that is attached to a property in a fixed way, so that it cannot be separated from it without breaking the matter or deteriorating the object.

Everything that even being movable (movable) is intended for a single purpose or is an inherent part of a real estate.

Mines, quarries, slag, etc. as long as their matter remains attached to the reservoir or the living or stagnant waters where they are housed.

The dikes or constructions that, even when they are floating, are destined for their purpose and conditions to remain at a fixed point of a river, lake or coast.

Administrative concessions for public works and easements, such as roads, highways, highways, etc.

In our country, university courses of a traditional nature do not seem to be capable of the correct understanding and valuation of real estate. In the United States there is the profession of ASSESSOR obtained from a private professional institution, the International Association of Assessing Officers or the American Institute of Real Estate Appraisers, or in the United Kingdom where there are studies that represent obtaining a university degree.

It is true that in Spain the university degrees of Architect, Industrial Engineer, Civil Engineer or Forest Engineer, Technical Engineers in terms of their respective professions and Economists and Graduates in Business Administration and Commercial Experts, in terms of business, fiscal, financial valuations , etc.

Each of them have activities connected with real estate appraisal in some of its aspects.

Real Estate Advisors, Real Estate Managers, Property Agents, etc. They are also part of another chapter on real estate appraisals, paying special attention to their purpose and depending on the title they hold to carry out the aforementioned activity.

For this reason, Professor Joseph Roca Caldera considers of special interest A POSTGRADUATE SPECIALIZATION IN REAL ESTATE VALUATION that covers the set of constructive, urban, economic, statistical, computer knowledge, required for the discipline of valuation that empowers Educational Centers for the expedition of Titles or Diplomas that certify the effective acquisition of a level of specialized knowledge, sufficiently qualified to effectively supply the evaluation task.

Within this chapter we consider that there is the CENTRO PROFESSIONAL TÉCNICO DE ESTUDIOS SUPERIORES (CPTES).

1.4 THE VALUE OF THE REAL ESTATE OF A MARKET ECONOMY

The Market Economy reflects urban valuations in accordance with the supply and demand of the property, and the correct appraisal is what places the value of the property at the equilibrium point between both trends: supply and demand.

It is essential to know that every good has two values, that of exchange (sum of money with which the real estate merchandise is paid) and that of use, which is unquantifiable from an economic perspective so that from it we can only consider it as real value of a real estate the exchange value that we can obtain for it.

Other basic concepts to understand the language of the real estate market are:

Market Value: It is the price for which a real estate asset will be sold, normally, taking into account the supply and demand.

Cost Value: It is understood that it corresponds to all the money necessary to cover the expenses incurred for the material execution of the property.

Investment Value: It is the value that for an investor his possible profit will suppose at the time of sale plus the value of the property at the time of purchase.

Goodwill Value: It is the value corresponding to a real estate property where a business that operates prosperously has been established.

Insurance Value: Corresponds to the amount by which an insurance would cover the destructible parts of a real estate.

Liquidation Value: It is the price for which an owner has to sell his property forced for economic reasons or time.

Tax Value: It is the one that, according to tax regulations, corresponds to the property.

Cadastral Value: It is the one that is granted to a property in accordance with the urban regulations of the Real Estate Tax.

Urban Value: It is the value that every property has in relation to its urban environment and the relevant legislation in the event of compulsory expropriation for legal reasons.

Fair Price: It is the value that, in an expropriation process, the different real estate acquire according to the agreement between the parties.

Affection Value: Similar to the Use Value, it is one that comes to consider the value that an owner-user, based on subjective criteria, considers should affect the property.

Thus, the determination of the Value of a Property must be carried out on economic parameters related to the real estate market such as the value of the land, that of the execution of the construction and the market value.[/vc_column_text][/vc_tta_section][vc_tta_section i_icon_fontawesome=”fa fa-home” add_icon=”true” title=”Valuations of urban land” tab_id=”1537979452031-3f5ba393-e1c2″][/vc_tta_section]. ELEMENTS OF REAL ESTATE VALUATION

1.1 BASIC ELEMENTS

As a consequence of the previous chapters, we must consider the VALUE OF A PROPERTY as the sum of the value of the land, due to its location, communication, social status and use of the same plus the value of the building itself and the use of it. is effected.

This approach can only be varied by the cataloging or protection for patrimonial-artistic purposes of the property or by its deterioration.

In relation to the previous point, we must clarify the concepts of appreciation and depreciation of a real estate:

It is called Appreciation of a Real Estate Property to the value of the increase that affects a property over its usual value due to a reason, generally external, to its location (through a variation in the Urban Planning Plan of the city), to the change in its social status ( sufficient migration to change the social or economic environment of an area or neighborhood) to the improvement of communication networks, etc. There may also be internal reasons such as the interior improvement of the property, in the aspect of work or decoration.

It is called Depreciation of a Real Estate to the value of the decrease that over the usual value occurs for reasons similar to those previously exposed.

It is called Fall into Disuse of a Real Estate when, for various reasons, it is no longer useful and therefore is not listed on the real estate market. This disuse can be Functional or purely Economic. In the first case, it occurs when due to architectural or distribution deficiencies it ceases to be useful and in the second, if it occurs exclusively due to economic factors.

1.2 VALUATION METHODS

There are several generic valuation methods in relation to the aforementioned aspects of the value of a property and among them we must mean:

METHOD ACCORDING TO MARKET

Which consists of comparatively evaluating a property with another or others of similar characteristics in the same urban, social environment, etc. It is therefore an ideal system since it tends to estimate the real value in the market of the property in question without other intermediaries than the comparison with other goods and with only the valuation of the constructive differences and the specific attributes of location.

CAPITALIZATION METHOD

The appraiser estimates the present value of the expected future benefits of a property. It is the ideal method for properties intended to generate income, that is, for rentals. This method has the difficulty of forecasting the movement of the real estate market with all the variations that can occur over time.

COST METHOD

It consists of evaluating the current cost of rebuilding the property, subtracting from it the set of necessary depreciations based on the age and condition of the property.

RESIDUAL METHOD

It consists of a method for obtaining the value of urban land and is obtained by subtracting from the total value of the property the set of construction expenses and benefits and those of promotion.

1.3 COMPONENTS OF REAL ESTATE VALUE

CONCEPTS

The value of the constructions will depend on their cost, material execution and the components and / or materials of the building.

SOIL VALUE

It is what it has in relation to its possible urbanization or not and its geographical scope within the urban structure of the population or the city.

1.4 DETERMINING THE VALUE OF THE LAND ACCORDING TO ITS ACCESSIBILITY

There are many theories about the concept that a property increases or not its value according to the ease of communication with the rest of the buildings that make up the urban structure of the city. These theories have been softening their importance by changing the transport structures of cities.

At the beginning of the century, only the city center had a convenient transport network. Currently there are peripheral areas that are better communicated due to the use of real estate than the city centers.

Thus, we will conclude that the accessibility, by transport, of the property is important and that it will increase its value as long as, without changing its use, the communications network in its environment is improved.

1.5 DETERMINING THE VALUE OF LAND AS A FUNCTION OF URBAN SPACE

It is a theory based on the concept of the internal divisions of cities into zones, neighborhoods or districts and the quality of life or social structure of that portion of the urban space.

Economists define this theory as urban externality and give it a strong impact on land valuation.

We can also conclude, therefore, that indeed buyers are moved not only by the accessibility of the property but also by its location in the space of cities.

1.6 DETERMINING THE VALUE OF LAND AS A FUNCTION OF THE SOCIAL INCOME OF THE POPULATION

The characteristics of the neighborhood or urbanization are not always combined with their social situation. An urban area can be very attractive to buyers due to its accessibility, its urban qualification, but not due to reasons of class, race, economic situation of its inhabitants, etc.

It is for this reason that these factors should be taken into account in the valuations.

1.7 CONCLUSIONS ON DETERMINANTS

We must consider that in a city the locational optimum of the set of urban users is never achieved, so all of them have their influence in determining the value of the land.

If we consider cities as a set of zones or neighborhoods and analyze each of them by itself, we would find small cities with the same problems as the higher grade.

Therefore, there is no balance between the different determinants that offers us the possibility of finding a real estate value of the solvency land.

We therefore have to enter the SUPPLY and the DEMAND and this is where we really find a historically rigid structure since prices are always raised to the maximum admissible for the economic capacity of each segment of demand at a given moment. Even in favorable conjunctural situations in which supply exceeds demand, the market regulates itself by immobilizing the real estate stock to maintain the price.

2. THE APPRAISAL OF THE SOIL

2.1 PRICE OR VALUE OF LAND

PREAMBLE

In previous topics we have verified that the value of the land is conditioned by the “cost of development”, by the “supply and demand”, by the “free stock” and by the “value of the property built on it” or the possible use of the site to build.

The price of a lot can be valued from different points of view, being, however, its generic concept: the result of the transactions of vacant lots actually operated in the market. It is therefore the market outcome of supply and demand.

Another component of the value of the land is its location or location, this is granted by the function of the promoter of the sale of the plot or the property on which it is located. When a developer lists the advantages of the site or building that is the object of his promotion, he always includes, among them, the location:

Population:

Zone or Neighborhood

Situation within the neighborhood:

Specific orientation situation, etc.

2.2 URBAN LAND VALUATION PROCEDURES

COMPARISON METHOD ACCORDING TO MARKET

It consists of comparing the plot, object of valuation, with the prices of the other plots for sale in the surroundings of the same area, location and orientation.

As there is a clear tendency to increase the value of the land in the different years, we consider the last known one to be valid, in different cases we will choose to obtain averages that reflect the annual or even monthly increase and provide us with the trend of rising prices to Apply.

It is advisable to apply some corrective percentage that can indicate the variations (even momentary) that may affect the current price, such as a situation of works in the surroundings of the property that may make us think of a reduction that we could assess by applying the percentage 0.9% corrector, which will give us the APPRAISAL VALUE of 226,701.49 Euros.

RESIDUAL METHOD

It is usually used in the cases of plots with new buildings through the system consisting of deducting from the value of a property with similar characteristics, in terms of location and construction, of:

The cost, of course, of the reproduction of the building that is compared on our site.

Expenses on construction, promotion etc. Expected.

The normal expected profits of the promoter.

This system can be complicated by the possibility of studying similar buildings with different construction ages or with the construction forecast on our site in the future of a year or more. In these cases, it is convenient to make the date checks and foresee or calculate the differences in value of each of the sections specified in the calculation of the land value.

URBAN VALUE CALCULATION METHOD.

This method consists in the application, to the initial value of the land, or cadastral value of the same, of a series of percentages that collaborate to determine the rights of the land owners with respect to the level of urbanization of the plot, their situation and other characteristics intrinsic to the pampering. They do not exceed 15% of the cadastral value by more or less.

For these purposes, the 100m distance is understood as the threshold of influence of urban services. between these and the road alignment of the plot to be assessed. Parcels are considered normal level when they meet, at least, the following characteristics:

Street: with paved sidewalks and driveway

Water: between 50 and 100 m3 / Ha. / Day with distribution network at the foot of the plot

Sanitation: at the foot of the plot

Electric network: at the foot of the plot and low voltage

Lighting network: public and in use

Percentage increase factors will be considered, for example, the following:

Provision of higher water flow (2%)

Existence of a treatment plant (6%)

Gas installation (2%)

Thermal Power Plant and distribution network (3%)

Telephone installation (1%)

Environmental Gardening Elements (1%)

Decreasing factors will be considered, by way of example:

Need for grading higher than normal (1.5%)

Poor paving of roads and sidewalks (2-3.5% respectively)

Water supply less than 50m3 / ha / day (1%)

Deficiencies in the water network (1%)

Deficiencies in the sanitation network (2%)

Deficiencies in the lighting network (1.5%)

Deficiencies in the electricity network (2.5%)[/vc_column_text][/vc_tta_section][/vc_tta_accordion][/vc_column][/vc_row]

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