EL DERECHO DE REVERSIÓN EXPROPIATORIA Y SU INSCRIPCIÓN EN EL REGISTRO DE LA PROPIEDAD.

Abstract

The purpose of this paper is to provide a close study of the right of expropriatory reversion. The author claims that the right of expropriatory reversion is a concept linked not merely to administrative law, but to civil law and mortgage law, as it is a subjective right that a) concerns assets, b) may be traded and c) may be registered. The paper begins with the idea that reversion guarantees property rights, because it limits their expropriation; after all, expropriation remains lawful and meaningful only so long as the original cause of expropriation exists. An analysis is offered of the different cases in which reversion is in order and the exceptions to those rules, including the justification and legislative origin of both the normal cases and their exceptions. Special reference is made to cases of expropriation for development reasons. Particular attention is paid to the different theories about the legal nature of reversion; the author advocates the idea that the right of reversion may be compared to a pre-emption right in real property, albeit under a very suigeneris system of rules. On the base of this analysis, the second part of the paper reviews the relationships between rights of reversion and the property registration system. The landmark event in this issue is the important reform effected by the 1999 Building Law, which amended the wording of article 54 of the Expropriation Act. One particular feature of the reform was to draw a distinction between latent rights of reversion (which result from the mere fact of expropriation), active rights of reversion (triggered by activating circumstances and declared by administrative or judicial authorities) and, lastly, consummated rights of reversion (consummated through the re-transfer of the expropriated property to its former owner or the successors of its former owner), as different objects of registration. A careful analysis is given of the 1999 reform's consequences in terms of the efficacy of the recording of rights of reversion (or lack thereof) in relations with third-party purchasers of rights in property, through the application of the rule of enforceability. This was an improvement over the previous legal position, based on the prevalence of the right of reversion regardless of whether it received registration publicity. Some authors used to justify this standpoint as a manifestation of article 37 of the Mortgage Act, considering the existence of the right of reversion to have been implicitly publicized in the entry registering the title of expropriation. The paper moreover looks at all the points concerning the involvement of registration with reversion, from the rule of petition to the rule of chain of title (given the transmissibility of rights of reversion), including the formal cancellation of rights of reversion. All these points have been the focus of numerous doubts in legal thought and practice due to the scarcity of pertinent legislation. The scarcity has been partly palliated by the body of doctrine built on the subject by the Directorate-General of Registries and Notarial Affairs, which the paper highlights.