EL AUTOMATISMO EN LA ACCESIÓN INMOBILIARIA.

Abstract

 The unanimous majority doctrinal thesis of our case-law deems accession under article 361 of the Civil Code (concerning construction on third-party ground) to hinge upon the option chosen by the owner of the invaded land and actual payment for the object of accession (be it the construction or the land). This paper takes the opposite view. It deems accession under article 361, like all real property accession in general, to operate automatically with the addition of the construction to the ground, in conformity with the traditional rule of superficies solo cedit, which is established for all real property accessions by article 358 of the Civil Code.   This thesis’s practical advantages (which, with the legal foundations of the thesis, will not be revealed here) contrast with the innumerable drawbacks that crop up in actual practice when accession is deferred and predicated as described above. For example, who holds ownership of the building while the land owner is deciding and until the land owner pays what is due, the person who built it, the dominus soli, or perhaps neither? Who holds possession of the building? Can the building be withheld as security for payment on the object to which the land owner wishes to accede? Would ownership of the raised construction, or even ownership of the invaded land, be liable to usucaption until and unless the landowner reacts somehow to the invasion? And, once the decision has been taken and the sum due has been paid, will accession apply retroactively as of the time when the construction was put on the land or the time when the decision was made, or will it apply non-retroactively as of the time of payment? These and many other questions are almost all issues that either do not even arise or are settled very simply under the thesis of automatic accession.