EL NUEVO DERECHO DE SUPERFICIE

Abstract

The new Land Act introduces new terms on surface rights in articles 35 and 36, to increase the operativeness of surface rights in the construction of housing. Surface rights are configured in two ways: as the power to make constructions or buildings at ground level and above or in the subsoil of another person's property while keeping temporary ownership of the constructions or buildings, and as a right in already-existing constructions or buildings while giving the ground-renter temporary ownership of the constructions or buildings. In addition the new law has refused to take the significant, unreserved step of considering registration of surface rights constitutive. It intentionally establishes two different phases: first the notarial phase, where the law literally says that in order for surface rights to be validly constituted they have got to be formalised in a notarial deed, and then the registration phase, where entry of the deed in the property registry is required, as if that were mandatory. Thus the idea in previous legislation concerning development, which made the efficacy, although not the validity, of the right hinge on registration, is swept away.