SUPERFICIES SOLO CEDIT: UN PRINCIPIO (NATURAL) EN CRISIS (ECONÓMICA).

Abstract

Our case-law has turned the principle of superficies solo cedit upside-down to solve the case of constructions that exceed their proper limits. Also, the Catalan Civil Code recently eliminated that same principle for all accessions to real property in general. This paper, to the contrary, seeks to reaffirm superficies solo cedit as the general legal rule. In the inversion and elimination of the principle, it was claimed that superficies solo cedit is based on economic grounds, founded on the idea that land is worth more than any construction, thus making it an anachronistic rule today. But that is not so. «The surface yields to the ground» has been a rule so deeply rooted in law for centuries because of its logical, natural foundation: Land is an independent thing that can exist alone, while no building can be raised without land upon which to rest, to stand. The natural force of attraction the land exerts (and which forms the backbone of the rule of superficies solo cedit) is so strong that the building is united with it, thus becoming immovable, by its addition to the land. While, then, the principle of superficies solo cedit must be preserved in any case of accession to real property to settle cases of constructions that exceed their proper limits, the rule should not however be reinstated as such. In such conflicts, there is a struggle between two areas. One is the invaded third-party land, and the other belongs to the invading building. Each attracts to itself a certain portion of the same surface, a certain portion of the same construction. The two must be compared to find the winner, which will be the principal area because it possesses the greater power of attraction, due to its greater value or its greater volume, as the case may be.