Tema 4. Property Law PDF

Tema 4. Property Law Inglés Jurídico y Empresarial Introduction. Property Law & Key Terms This refers to the ownership of things, goods or assets. Therefore, ‘things’ could be the property itself, or perhaps a ‘bundle of rights’ that a person may have over a property. We can distinguish between:...

Tema 4. Property Law Inglés Jurídico y Empresarial Introduction. Property Law & Key Terms This refers to the ownership of things, goods or assets. Therefore, ‘things’ could be the property itself, or perhaps a ‘bundle of rights’ that a person may have over a property. We can distinguish between: - Public and private property - Tangible/corporeal and intangible/incorporeal property - Real property (land, buildings; bienes inmuebles) and personal property (a watch, a table; bienes muebles) - Personal property is often called personality or chattels (please see notes from RC1) Note: Fixtures (bienes inmuebles por destino) are items of personal property permanently attached to real property that cannot be removed without damaging the real property (for example a wall-to-wall carpet or a built-in wardrobe). Rights over property (derechos reales) are often called ‘property rights’, ‘rights/interests in property’ or ‘rights in rem’. Ownership (propiedad) over property usually entails that such a person has a title (dominio) over it. Possession and Acquisition of Possession - Possession as owner or without title - Dispossession; deprivation of rightful possession; wrongful taking of possession (despojo) There are two main forms of acquisition. Original acquisition (adquisición originaria) when the property has never been owned; and derivative acquisition (adquisición derivativa), when property is transferred from one owner to another. Possession over property may be lost due to abandonment (abandono de la cosa), transfer of property to another with or without valuable consideration (cesión por título oneroso o gratuito), total destruction or loss of property (destrucción o pérdida) or dispossession or wrongful deprivation (despojo, privación). Ownership of Property (Propiedad) - Rights linked to Ownership Certain example of rights that may be linked to Ownership are: - Right to survey and mark property/land boundaries (facultad de deslindar) - Right of enjoyment or to enjoy property (derecho a goce) - Right to enjoy proceeds (‘fruits’) from property (derecho al disfrute) - Right to use property (derecho de uso) - Right of disposition or to dispose of property (facultad de disposición) - Right to relinquish or abandon ownership (facultad de renunciar o abandonar) - Right to encumber property (facultad de gravar) - Liens or encumbrances (gravámenes) - Free of any liens or encumbrances / unencumbered → Libre de gravámenes Such rights may be lost in certain cases, such as the loss or destruction of the property, due to relinquishment (renuncia), abandonment (abandono), due to revocation of title (revocación de la propiedad), by judicial decision (por resolución judicial), etc.  Ownership of Property - Limits to Ownership Sometimes, the use or enjoyment of property may be limited or lost due to government-imposed decisions, non payment of debts, or even due to a clash in ownership rights arising between neighbouring properties. In the first case, there is expropriation (expropiación forzosa), which in the UK is called ‘compulsory purchase’ and in the US is often called ‘condemnation’. The power of the government to expropriate private property for public use if known as eminent domain. By non-payment of debts, a person may lose their real estate property through a judicial sale due to mortgage foreclose (ejecución hipotecaria) or insolvency, for example. In the last case, an example of a limitation could be the creation of an ‘easement’ (servidumbre) for public or communal use.  Ownership of Property - Acquisition and Transfer There are different forms of acquiring ownership or other rights in property. 1. Occupancy or appropriation (ocupación) 2. Accession (accesión) 3. Adverse possession (usucapión) a. Also called ‘usucaption’ or ‘acquisitive prescription’ 4. Delivery (Tradición/traditio) a. Also called ‘transfer by delivery’ *See RC1 and RC2 for additional notes  Protection of Title to Property In Property Law, there are certain actions that can be taken to protect ownership and other property rights, such as: - Action for Recovery of Possession (Acción reinvindicatoria) - An action that may be filed by an owner or co-owner wrongfully dispossessed of real or personal property against the party in possession - Action to Establish Ownership (Acción declarativa de dominio) In order to establish ownership of real or personal property against anyone disputing or claiming such right, where the claimant/plaintiff can prove title to the property and that it can be duly identified. - Action to Establish Clear Title (Acción negatoria) - That can be filed by the owner or titleholder of enjoyment rights in real or personal property against any party who claims that the property is encumbered - Action to Establish Property Boundaries (Acción de deslinde) - To define and mark a property line or the properties’ boundaries, or to determine the exact dimensions and physical boundaries of a piece of land (finca) Limited Rights in Property (Derechos reales limitados) Enjoyment rights - Derechos reales de goce a. Usufruct; beneficial interest → Usufructo (¡!) Often also called ‘beneficial ownership’. Cuidado con utilizar este término ya que también se utiliza como traducción de “titularidad real”. b. Usage rights → Derecho de uso c. Dwelling or habitation rights → Derecho de habitación d. Timeshare Rights → Derecho real de aprovechamiento por turno de bienes de uso turístico i. What is a timeshare? A timeshare is a shared ownership model of vacation real estate in which multiple purchasers own allotments of usage in the same property e. Easements → Servidumbres Limited Rights in Property (Derechos reales limitados): → Easements (servidumbres) An easement is an encumbrance imposed on one parcel of land benefiting the owner of another one. Predio/fundo/heredad dominante - Dominan tenement/estate; benefited property Predio/fundo/heredad sirviente - Servient tenement/estate; burdened property Titular del derecho de servidumbre - Easement holder; owner of an easement There are also many specific types of easements: water easements (or ‘water rights’), drainage easements, easements of passage or access easements (also called ‘right of way’), utility easements, livestock easements (or ‘livestock right of way’). Easements may be terminated due to many causes such as a merger/unity of ownership (por consolidación), when the rights of the easement holder and ownership of the servient estate become vested in the same person, for non-use (por falta de uso), by expiration of the term (vencimiento del plazo), etc Limited Rights in Property (Derechos reales limitados) - Annuity rights - Censos Burden on real property consisting in the payment of an annuity in exchange for a cash amount or for the transfer of ownership or lesser rights in that same property. Annuity or ground rent - Canon/rédito/Pensión annual - Emphyteusis - Enfiteusis Grantin of beneficial ownership of a property, reserving title to that property and the right to receive an annuity in acknowledgement of that title - Surface Rights - Derecho de superficie The legal rights and privileges associated with the use, control, and ownership of the surface of a piece of land or property. These rights typically include the ability to occupy, build, develop, and make use of the land's surface for various purposes.  Security Rights in Spain - Derechos reales de garantía a. Mortgages - Hipoteca inmobiliaria A mortgage loan is a credit used to purchase real estate in which the borrower agrees to pay the lender over time, typically in a series of regular payments that are divided into principal and interest. The property then serves as collateral (garantía) to secure the loan. b. Antichresis - Anticresis Defined as a written pledge and transfer from a debtor to a creditor of possession of immovable property giving the creditor the right to the fruits (as rent) of the property which are to be deducted from the interest of principal of the debt. c. Pledges - Prenda Also called possessory security interest in personal property or pledges of personal property; it is a bailment that conveys possessory title to property owned by a debtor (the pledgor) to a creditor (the pledgee) to secure repayment for a debt or obligation to the mutual benefit of both parties.  Preferential Acquisition / Pre-emptive Rights in Property (Derechos reales de adquisición preferente) Purchase option/Option to purchase - Opción de compra. The right to purchase a specific asset/property during a specified period of time at a situpaled price Pre-emption rights → Right of first refusal (derecho de tanteo) For example, the right of an existing shareholder to purchase the shares of another before those shares can be sold to a third party, which may be statutory (tanteo legal) or convened by a contract (tanteo convencional). This way, the shareholder with the right of first refusal has the option to either accept the offer and purchase the shares or decline the offer. This is also often called ‘First-refusal rights’ or ‘preferential purchase rights’ On the other hand, the right to set aside a sale (o derecho de retracto’), means the right to revoke a sale or other conveyance after its completion. Although when translating these terms into English, you will often see that lawyers’ simply call ‘derechos de tanteo y retracto’ as ‘pre-emptive rights’ or ‘rights of first refusal’ without making the distinction as described above.