Acquisition of Rights in Rem

Acquisition of Rights in Rem

• Article 609 CC lists methods to acquire property and real rights including ownership by occupation, transfer by law, donation, testamentary and intestate succession, contracts with delivery, and prescription
• Mentioning donation as a mode of transfer is noteworthy
• Donation requires no delivery to produce a transmissive effect, unlike "transferring contracts"
• Methods of acquiring real rights are traditionally classified as:
  • Onerous or gratuitous
  • Inter vivos or mortis causa
  • Voluntary or compulsory
  • Pure or subject to condition/term
  • Transmissions by universal/particular title or over specific assets

Originative vs Derivative Modes

• Originative Modes: Rights of the new holder are not based on any preexisting right, acquisition occurs ex novo

  • Occupation exclusively for movable property (Article 610 CC)
  • Discovery (Article 615 CC)
  • Cases of prescription (especially extraordinary)
  • Acquisitions from non-owners

• Derivative Modes: Acquisition based on the previous holder’s right.

  • Real right passes through legal transactions like sale, delivery, inheritance, or donation.
  • Content of the right acquired is the same as the previous holder’s, no broader than what they had ("nemo dat quod non habet")
  • Transferring modes: Same right acquired by the new holder
  • Constitutive modes: Original holder establishes rights in someone else's property for the acquirer, while retaining a limited real right (e.g., usufruct or servitude).

• Derivative acquisitions are limited by the scope of the previous holder’s right

Tradition and Transitive Agreements in Real Rights Acquisition

• The Spanish system implies the persistence of Roman traditio (intention, delivery, cause), supported by Articles 609. II and 1095 CC.
• Article 609. II states ownership and rights are acquired by contracts through delivery.
• Article 1905 states creditors are entitled to fruits of a thing when the obligation to deliver arises, but won’t acquire a real right until delivery.
• Two elements needed: title (contract) and mode (delivery).
• Without delivery, only a personal right exists for the creditor, not ownership.

Title

• The underlying cause of tradition or delivery
• A title capable of effecting the transfer is needed.
• Translative contracts like sale, or any agreement where one party commits to transfer a real right over the thing
• Absence, nullity, annulment, rescission, or termination of the contract will make derivative acquisition ineffective
• Whether real ownership has been consolidated, the rules of original acquisitions such as acquisition from a non-owner, and prescription, may apply

Mode, Delivery or Traditio

• Delivery of a thing with the intention to transfer the ownership.

• Mechanisms emerge to bypass the material delivery.

• Two fundamental types of tradition or delivery:

  • Tradition in the proper sense (transfer of possession either mediate or immediate)

• Tradition of ownership or right without delivery of possession exists

• Key factor: pursued purpose (adding mode to title), means not essential but secondary.

• When discussing tradition, address:

  • Material delivery of the thing
  • Assignment of possession
  • Assignment of ownership or real right

• Articles 1462 to 1464 CC regulate the mode.

• Ways of carrying out traditio include:

Real Traditio

• Material delivery of the thing as defined in Article 1462.I CC, where the thing is placed in the power and possession of the buyer.
• Transfers physical control over the thing
• There is simultaneous ownership and possession
• For tangible movable property (including negotiable instruments).
• Consists of the transfer of possession of the right to the acquirer

Fictitious Deliveries or Ficta Traditio

• Exceptions to facilitate trade but with a component of public order

Instrumental Traditio

• Possibly the most relevant form for transmission of real estate ownership
• Article 1462. II CC states that the execution of a sale made pursuant to a public deed is equivalent to delivery, unless otherwise deduced from the deed.
• General rule in sales contract that instrumental traditio has occurred, implying the transfer of thing’s ownership
• Public deed contracts can mandate physical delivery of the property at completion of construction
• "Public deed" includes documents authorized by a notary or competent public official with legal formalities (Article 1216 CC) -This is when a buyer often becomes the real owner in real estate sales
• Rule refers to public deed of sale, valid for notarial deeds or barter, contribution to company, or judicial approval of creditors’ agreement as datio pro soluto.

Symbolic Traditio of Movable Property

• Delivery of keys to where goods or merchandise are stored (Article 1463 CC) Includes keys to storage lockers, safety deposit boxes, vouchers, or passwords.
• Analogous application of Article 1463 CC to real estate keys is inadmissible
• Legislator distinguishes (Article 1462 versus Article 1463), and the differentiation must be respected
• Delivery of keys to often implies a real tradition under Article 1462. I CC

Solo-Consensu Traditio

• By mere agreement.
• Applied exclusively to movable property when physical delivery isn’t possible (Article 1463 CC)

Brevi Manu Traditio

• Tradition by mere consent when the buyer already possessed the thing under a different concept, authorized by Article 1463 CC

• Buyer held possession as tenant, usufructuary, borrower, or under any form of non-ownership possession and will begin to possess the property as an owner

• Can be applied to real estate

• Governed by Article 1462 I CC, as it constitutes actual delivery

Possessory Contitutum

• Selling owner becomes a tenant of the buyer and the new owner

• Falls under Article 1462 I CC (actual delivery) rather than brevi manu tradition

• Buyer acquires control, exercising mediate possession of the item through the seller -Seller now recognizes the buyer as the owner

Delivery of Intangible Assets

• Primarily the instrumental delivery in Article 1462 II CC because of inherent impossibility of physical delivery (Article 1464 CC)

• Delivery can also be made by placing ownership titles in the buyer's possession through symbolic delivery (traditio symbolica)

• Negotiable instruments or securities have actual delivery because the right is incorporated in the document

• A third mode exists which it the buyers use of their right to the knowledge of the seller which serves as evidence of a prior transfer

• Traditio is related to all types of goods and rights, including intangible ones.

• Registration in the Property Registry doesn’t replace the need for traditio, it only serves as registry publicity.

• Public deed and registration doesn’t equate to traditio.

• Registration doesn’t substitute traditio,.

• Article 38 of the Property Law(LH) establishes a presumption that the registered owner possesses property or right.

• Traditio is considered to have occurred, and that presumption is rebuttable(iurist tantum).

Derivative Acquisition of Real Rights

• For transfer of ownership of a real right to occur, you need a title and traditio and also legitimacy of the tradens (transferor)

• Transmissions and acquisitions of ownership by a non-owner are possible under circumstances when the tradens is not legitimized

• Legitimacy, title, and traditio exist when the transfer of ownership occurs

• Legitimacy and title with no traditio means the transfer of ownership does not occur

• Legitimacy exists, the title is invalid with traditio or delivery when ownership can be acquired through ordinary prescription

Acquisitions A Non Domino

• Full effectiveness of the transfer requires one element which ownership and power of disposal .
• No one can transfer what they DONT possess.
• The system of title is governed by derivative acquisitions and must be compatible with another system that operates under its own principles of acquisition a non domino.

"A Non Domino" Scenarios

• When an appearance of ownership is created in the market and an acquirer relies to make a fair chose between the real owner, and the real acquirer
• The legal system sacrifices the right or the genuine "owner" when there are the protection to legal transactions and trust in the commerce of goods.

-The protection offered by Article 34 of the Mortgage Law to those who have relied on ownership reflected.

• The protection under Article 464 CC favors those who have relied on possession.
• Movable property acquired in a commercial establishment is protected under Article 85 of Commercial Code

The Legal system will usually coincide with these elements:

• Apparent. acquisition from non- dominance.
• Onerous Title with a exchange that has an agreement between interests
• Good faith of the acquirer, to achieve genuine ownership

A Non Domino Acquisitions of Movable Property

• According to the effects of movable property under Article 494CC:

• "Possession of the movable property and acquittance in good faith"

• The application:

-possessor must exercise good faith

• must relate to movable properly, of this can acquire title or ownership

A Non Domina Acquisitions of immovable property

• Under Article 34.1, a third party that requires any right from a figure of consideration of authority, they must be maintained in acquisition and registered to the registry
• public registration aimed to protect third parties who have acquired rights, that relied one the status of the of the transferor being the person listed in the registry.

There are cases where the registration of a real right in property requires a passage for a certain point and occurs from Article 85LH

• The suspension means and ceases the act from a period of two years.
• there is is or will be an suspension on inheritance or legacy, with death and consolidation

Article 32 LH states that “Titles of ownership or other real rights over real estate, which are not properly registered or annotated in the Property Registry, do not harm third parties.

The Argument that the rule or foundation follows Article 34 LH. Majority of the dualistic claims there are conditions

• The acquirer ownership of a real estate
• That the acquisition is registered;

Historical Usucaption

• Usucaption can extinguish rights and action in acquiring ownership -The acquisitive is set as a away to acquire rights over property
• Usucaption- acquiring and holding to maintain a possessory situation but for a certain time based on law and order.
• once all the requirements are met than acquisition occurs.

The Uscucaptient

• A possessor who behaved as a owner with ownership and legal system

• Can consolidate the acquisition by the time of possessing time of factual became law,

• Adverse transaction protect the security of legal transaction

• For the safety of the rights through effective ways of contradiction in the transfer

Actions of real under Usucaption

• To serve to purge under the title of transfer not to remedy if the lead to the ineffectiveness.
• it does presuppose a involved third patter. extraordinary title can consolidate the usucapient against any action that has been lapse.
• the Civil code as that have prescription mean though.

Usucaption subject:

• In order to acquire through prescription they have to legitimate by other mean
• Affect though has been stolen to what has accomplice and abettor
• Civil code means things that has been stolen cant be prescribed unless through action

Civil Code rights shared

• Article 1993, states when the ownership is shaped through subjects article Therefore it is enough to a develop possess ad usucapionenum for the thing considered can
• The true concept of power is for the rights in that is to become held

The Term

• True and harmed with status to have full rights regarding Article 1992 by the civil code
• they are natural personal in all types of capacity.
• The usucaption will account because action they have to seek help under compensations

The Right to Usucaption is all real and being possession:

• That will all subject.
• Civil code recognizes all right and powers. It is impossible rights of action because the basic that has to be under ownership -liberating rights possess through a a necessary so that it create all clear

It Is can Apply

Usucaption and it is Types

• There must be a classification of what consists all.
• extraordinary and under the cc, 1940 that state their and not just a one

extraordinary action.

-the time is set to thirty years for good and six years for property in this possession.

ordinary action

• in a. Addition possession there must be a just title.
• There must be an agreement owner with a period to to reside 10-20 years of non- presence or 3 years of movable

Both has have the rights in order to also be known:

• Good fair. with a. That possesses a just tile has a to be ineffective when

A classification between ellow-able and movable, with also ordinary that it can’t to certain. Last classification that is used in between or real to and to

F) Common Requirements for All Usucaptons

• There Are general require and all and it it, one to have that is

1. The passing time set by law

• The different or depend on type and to have

2.Right Poss the capacity to to.

The type to to and 1944cc states the is

• Owner: The The. Not The

G) the. Requirement

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