Real rights

A real right is a legal power exercised by a person (physical or legal) over a thing; regulates the Property, and the rights and obligations concerning the property. This power can be direct and immediate or indirect and mediate, and it can suppose a total or partial use, being this right opposable to third parties. The figure comes from the Roman Law ius in re or right over the thing (see Law of things). It is a term used in contrast to personal or credit rights. The main real rights are property, usufruct, easement, mortgage, pledge, antichresis, emphyteusis and census. Possession may or may not be a real right according to the legal system.

Concept

A conception of the theory of real rights is: «real right, the owner acquires immediate and direct power over an asset, which can be exercised and asserted against all»^{[citation required ]}

The obligationist or personalist conception and the unitary conceptions consider that a duty of abstention or passive obligation that is imposed on everyone (erga omnes) derives from real rights. It has been pointed out that this thesis does not seem acceptable, given that there are innumerable cases in which there is no such invasion and the owner's activity proceeds peacefully. Real rights could not only be a faculty or power of exclusion, since it would lead to the conclusion that the property right over a movable thing would not be born until a third party steals or steals it.

An intermediate conception establishes two elements of property rights:

• A power of the subject over the thing of economic content.
• A relationship between the subject and third parties: legal or formal guarantee.

Another conception indicates that real rights are those subjective rights that attribute to their owner immediate power over a thing, and are exercisable against third parties.

Classification

Rem rights differ from obligatory rights:

• Because of people:
  • In real rights, a single individual is involved and a collective and undetermined passive subject.
  • In the right of credit, in addition to those rights, a passive subject is individually determined.
• For the reason of the object:
  • In real rights, the object is a body, specific and determined thing.
  • In the right of credit the object is a benefit of the debtor.
• Because of the power they attribute to the holder:
  • In real rights, it implies power over one thing.
  • The right of credit, power or power against the person of the debtor, to require him or her to do or not do so.
• Because of its effectiveness:
  • In real rights, it is the prototype of absolute rights, by being able to exercise and become effective erga omnes: his active subject is the holder, who exercises his rights over the thing and the collectivity would act as a passive subject, being forced not to disturb the powers that the holder exercises over the thing.
  • Compulsory right is the typical relative right (parties), because it can only be made effective with the person of the debtor as a passive subject, in contrast to the creditor, acting as an active subject.
• Because of the importance of law and will in its creation:
  • In real rights, it takes its form of law and obeys the principle of public order. The different real rights and ways of acquiring them, because of their relevance to national legal systems, are often established exclusively in the law, that is, they respond to a numerus claususus
  • The right of obligation is governed by the principle of autonomy of will, which is why there are as many obligations as legal figures can be imagined.
• Because of the origin:
  • Real rights require a title and a way of acquiring, established by law.
  • The rights of obligation are born from the sources of obligations, which in classical Roman law are contract and crime, varying in the different modern legal systems. They are not susceptible to usucapion.
• Because of its duration and causes of extinction:
  • Real rights have an ordinary perpetual nature, their exercise consolidates it, but the thing perishes, the extinction of the law occurs.
  • The right of obligation has a limited nature, "it is born to die," since its exercise extinct it, and the thing on which it lies still disappears (unless there is a way to extinguish its obligations).
• For registration protection.
  • Real rights, in particular those of an immovable nature, are usually protected by the legal system by registration in a special registry of a public nature, which credits its domain or, where appropriate, its possession.
  • The right of obligation, except exceptionally, is not protected by registration.

The jus ad rem

The ius ad rem historically was a right that, without attributing immediate power over the thing, did not reduce the acts performed to mere obligatory effects either. It originated in Roman Law and was applied in those cases in which, having acquired something, it had not yet been delivered.

Currently it is understood that it is that ownership that is attributed to a subject by virtue of a law, a contract, a will, a judicial resolution, to obtain possession or economic utility of a certain thing that he does not yet have. The most common assumptions are: preventive annotation and double sale.

The ius ad rem is mostly rejected by Spanish legal doctrine.

Rem rights in faciendo

Rem rights in faciendo. It is the legal link between two people; They are those that confer on their owner the right to obtain from the taxpayer a certain conduct or service.

Regarding their legal nature, it has been affirmed that they are authentic real rights, since the obligatory content does not have its own autonomy, but rather exists as a consequence of the same real rights; however, the point is disputed and there are those who consider that it is about personal rights

Positive easements, censuses and, in modern times, urban use registered in the Land Registry separated from the land, which may even be object of of mortgage. Real rights in faciendo are understood as those in which third parties are obliged not only to tolerate, but also to act in favor of the right holder.

At first, it would seem an absurd notion, since it would imply that in real rights there would be a certain passive subject and their obligation would be extended not only to a simple toleration but, even, to doing, which would imply an action on the part of of the same.

Nevertheless, we believe that the concept of real rights in facto is fully applicable in our law, at least in the case of the real right of voluntary easement, since the owner of the servient property could, hypothetically, be obliged to do something, if that is required in the constitutive business (v. gr. to fix and maintain a good state of the conditions of the established road).

Obligations propter rem

Obligations propter rem are those in which the obligee is only determined by his relationship with the thing.

They are considered a subspecies of the ob rem category, that is, that right or obligation that has its origin in a certain thing, that is enjoyed or that is encumbered with it while it is the owner of said thing and precisely because it is.

As an example of ownership ob rem we can mention horizontal property and as an obligation propter rem that of contributing to common expenses.

Classifications of property rights

Italian Doctrine

• Rights of enjoyment and disposition.
• Rights of simple enjoyment.
• Guarantee rights.

German Doctrine

• Provisional real rights (possession).
• Final real rights.

Spanish Doctrine

• About tangible things (not always)
  • Provisional protection.
  • Perfect and definitive protection.
    • Plenos.
    • Limited: enjoyment, warranty and acquisition.
• On incorporating goods.

Regulation by country

Argentina

Rem rights are currently regulated in Book Four of the new Civil and Commercial Code of the Nation, after the unification of both codes, produced in 2014, with the enactment of Law 26,994. Previously, they were regulated in the Third Book of the Civil Code of the Argentine Republic of 1869 written by Dalmacio Vélez Sársfield, with the pertinent modifications of 17,711 of 1968. Regarding the repealed code method, it can be affirmed that The author reproduces Mackeldey's method, as specified in the initial note to the third book, saying "in dealing with things and possession before real rights, we follow Mackeldey's opinion and method, because things and possession are the elements of real rights". Both in the Vélez codification and in the current code, the numerus clausus system is applied, because only rights can be constituted. Listed by law, such rights are domain, condominium, horizontal property, real estate complexes, timeshare, private cemetery, surface area, usufruct, use, habitation, easement, mortgage, antichresis and the garment.

Domain

It is the real right that grants all the faculties to use, enjoy and materially and legally dispose of a thing, within the limits provided by law. Mastery is presumed perfect until proven otherwise.

Condo

Condominium is the real property right over a thing that belongs in common to several people and that corresponds to each one by an undivided part. The shares of the condominium owners are presumed equal, except that the law or the title provide another proportion.

Usufruct

It is the right to use and enjoy, but not dispose of the thing, even its use is less broad than that of the owner, since it must be subject to the destination determined by the latter.

Use

Like the usufruct, it is the right to use and enjoy a thing, but not in its entirety, but only insofar as it is necessary to satisfy personal needs and those of his family.

For its part, the room is nothing more than the right of use when it falls on a house, giving the utility of dwelling in it.

Service

Easement is the real, perpetual or temporary right over someone else's property, by virtue of which it can be used, or exercise certain disposition rights, or prevent the owner from exercising some of his property rights.

Mortgage

Right over the property of another whose purpose is to guarantee the holder of the mortgage right, the payment of the debt, without transfer of possession.

Garment

It is a real right of guarantee on a movable thing. Unlike the mortgage, this is transferred to the creditor, unless it is the pledge without displacement, which is not transferred.

Antichresis

The antichresis is the right by virtue of which, in guarantee and payment of a credit determined in money, a property is delivered to the creditor so that he can receive its fruits and impute them to said payment of a profit

Horizontal property

It is the right in rem that is exercised over a property of its own that grants its owner powers of use, enjoyment and material and legal disposition that are exercised over private parts and common parts of a building, in accordance with what is established in this Title and the respective horizontal property regulation. The various parts of the property, as well as the powers that are held over them, are interdependent and make up a non-divisible whole.

Surface

It is a temporary real right, which is constituted on someone else's property, which grants its owner the power to use, enjoy and material and legal disposition of the right to plant, afforest or build, or on what is planted, afforested or built on the ground, the flight or the subsoil, according to the modalities of its exercise and term of duration established in the title sufficient for its constitution and within the provisions of this Title and the special laws

Chile

The Chilean Civil Code leans towards the numerus clausus doctrine as regards the enumeration of the different real rights, being such, consequently, those established by law. That is, only the law can create real rights.

Article 577, paragraph 1, defines the right as that "that we have over a thing without regard to a specific person". Paragraph 2 of the same article lists them:

• Dominion
• Inheritance
• Usufruct
• Use and room
• Active servers
• garment
• Hypoteca

In article 579 it states that the census is a personal right insofar as it can be directed against the census holder, even if he is not in possession of the census property, and a real right insofar as it is pursued.

In the case of public domain mining or water concessions (articles 2 of the Mining Code and 6 of the Water Code), Chilean legislation also refers to property rights, although in these cases it is technically of concessions.

• Real Conservation Law.

It is established and regulated by law number 20,930, which "Establishes the Royal Law of Environmental Conservation", and is defined in the first paragraph of the second article thereof, which states:

"Definitions. The right of conservation is a real right that consists of the power to conserve the environmental patrimony of a property or of certain attributes or functions of it. This right is constituted freely and voluntarily by the owner of the property for the benefit of a specific natural or legal person."

Spain

In Spain, apart from property or domain, there are also real rights: possession, usufruct, use, habitation, census, easement, among others, since there is no limit to the existence of real rights.

The problem is not one of numerus clauses, but that the rights need to meet the substantive and formal requirements imposed by their special nature, to be considered real rights.

The owner of a real right enjoys the use of certain summary actions for defense against whoever worries him in the natural enjoyment of the right:

1. The property: claim action.
2. Possession: not inscribeable.
3. Usufruct, use and room rights: immediacy.
4. Servants: confessional action.
5. The censuses: although regulated in Book IV of the Civil Code, are real rights.
6. The right of surface: Soil Law.
7. The garment and mortgage: direct action.
8. Anticresis: controversial; yes it is a real right according to the General Directorate of the Register and the Spanish Notariat.
9. Right of withdrawal: mixed if noted.
10. The right of tanteum: whether doctrine and jurisprudence is favorable.
11. The right of choice: yes, provided that it is not a personal commitment or a promise of sale.

Mexico

Rem rights recognized in Mexico are classified in two ways; the first called jouissance where we find: property, use, usufruct, habitation, easement, surface; the second is called a guarantee: pledge, mortgage. We also find the resolutive condition of the sale, the reservation agreement, the right of retention, intellectual property and industrial property.

El Salvador

According to Salvadoran legislation, the types of Real Rights are: 1 The domain 2 Inheritance 3 Usufruct 4 Use or room 5 active easements 6 Garment 7 Mortgage

Guatemala

In Guatemalan law, real rights are included in Book II of the Civil Code, also known as Decree Law 106. This book is named: Of property assets and other real rights.

According to the Civil Code of Guatemala, real rights are the following:

1. Property, like the real right par excellence, grants a broad and immediate power (of enjoyment, disposition and persecution) over the thing.
2. Possession, which does not imply mere temporary possession of the thing, but the encouragement of taking advantage of it, tengase or not title on it.
3. Usucapion, understood as the purchasing prescription, which is necessarily based on prior possession so that over time it will become property.
4. Accession, which becomes a complement to the property insofar as the natural and civil fruits that the thing produces, belong to the owner.
5. Usufruct, use and room, which respectively, because of the use of the fruits and the enjoyment of the thing, produce an immediate and direct relation to the holder of these rights.
6. Servidumbres, which create a direct relationship of dependence between two or more real estates, or part thereof, in favor of and for the benefit of another or other properties.
7. Hypotheter and garment, the first to be on real estate and the second on movable property, to guarantee the obligation preferably to any creditor, previous or later in the time that it had not registered similar rights in advance.