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Scope of property law

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Scope of property law

Ámbito del Derecho de propiedad
Scope of property law

Property in Spanish Law

Property is the direct and immediate power over an object or good, by which its owner is attributed the ability to dispose of it, without more limitations than those imposed by law.

It is the real right that implies the exercise of the most extensive legal powers that the legal system grants over an asset [Definition by Morán Martín. «Rights over things (I). The right of property and right of possession». History of Private, Criminal and Procedural Law. Volume I. Editorial Universitas.]

The right to property is included in article 33 of the Spanish Constitution and is regulated in arts. 348 and following of the Civil Code. The art itself 384 establishes that “Ownership is the right to enjoy and dispose of something, with no limitations other than those established by law.”

So this right grants full lordship over a thing, to submit it to our will in all its aspects, although the civil code distinguishes three faculties; enjoy, dispose and claim.

Modern doctrine considers the property right as the broadest unitary power over the thing. A global lordship where the so-called powers or rights of the owner are not a series of addends whose addition constitutes the property, but are only partial aspects of the total lordship that it includes.

As an example, Manuel Albaladejo defines property as “the full maximum legal power over a thing. Power by whose virtue it is, in principle, is directly and totally submitted (that is, in all its aspects and utilities that it can provide) to our exclusive lordship”.

In the same way Wolf says that “property is the broadest right of lordship that can be had over a thing”; and in the same sense Jorge Eugenio Castañeda defines property as “power or dominion that a person has over a thing exclusively and exclusively”.

The Constitutional Court in Sentence 37/1987 of March 26 has understood that the right to property has an institutional aspect derived from its social function, which supposes a definitive incorporation of the general or collective interest together with the pure individual interest of the owner in the specific delimitation of its content.

Often, both doctrine and jurisprudence tend to turn the idea of the essential content of the domain into a purely economic fact, referring to the utility or patrimonial value that the property has for its owner.

That is, the essential content of a qualitative nature is identified with a minimum content of a quantitative nature [ESPIN, Manual , II, cit., p. 97; and especially, MONTES, Private property, cit., pp. 154-160-165-170-179-205-208-211].

This is also the path followed by our Constitutional Court in the aforementioned Sentence 37/1987 of March 26 , so that the identification of the “essential or minimum” content of the property right is carried out based on “safeguarding the profitability of the owner” or preventing someone from annulling the “merely individual utility”. In this sense, it states, in its fourth ground, that “an expropriation that, partially affecting some of the faculties of the owner recognized by the Law, actually deprives the domain of all useful content without adequate compensation to the owner, would not be constitutional.” this total deprivation of the right, which can, of course, be measured from the point of view of the economic use or profitability of the bare ownership or of the faculties that the owner retains after the expropriation operation, always taking into account that such individual utility or Such powers cannot be absolute and unlimited, due to the requirements of f. s. property”.

Only from this perspective can it be understood and assumed that fixing the essential content of property rights must necessarily include reference to the social function, [COLINO GAREA,R.,

The social function of private property in the Spanish Constitution of 1978, Barcelona, 1997, p. 201] the identification of the essential content with the content defined in each case in accordance with the laws, or the possibility of as many essential contents as legally typified properties.

With this meaning is included the social function of the right to property that our Constitution includes, and that supports the present claim through the filing of the claim action provided for in the second paragraph of art. . 384 of the Civil Code.

Property Titles

The property is included in the property constitutive title. Although our law does not require that there be a document that proves our ownership, it is usual in practice that any transfer of ownership is reflected in a document, especially when we talk about real estate.

There are as many types of titles as there are ways to acquire the property: purchase and sale contract, exchange contract, deed of gift, deed of gift of inheritance, etc.

It may be that the description of the title does not match the real dimension of the property, giving rise to conflicts between neighbors due to discrepancies in their titles proprietary. You can find more information about it in our article What to do if my home has been occupied

Defense of Property Rights

Property law has its own defense tools, the main one being the judicial action known by the name “vindication action”, which is regulated in the art. 348 of the Civil Code and serves to claim the return of a property, movable or immovable, in possession of a third party. This action can be filed through the courts so that a court orders the offender to return the property to its rightful owner.

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