Real Estate Law
Law of Things is the section of the Civil Law that regulates the matters resulting from the direct control of persons on things.
Such control may be based on a right, although there are instances where it is not based on a right. Rights that provide direct control of things are called real rights.
Possession, which expresses the way the control over the real rights in movable goods is disclosed outwardly, has legal consequences as a state of control in terms of both movable and immovable properties, whether it is based on a right or not, aside from its disclosing function.
Although the Civil Law does not define ownership, Article 683 determines the content of such right. According to this provision, the owner of a thing has the authority to use, benefit from, and dispose of, such thing as they wish within the limits of the order of law. The owner may file an Action of Replevin against a person that unlawfully possesses their property, and file any possessory actions, as well.
Action of Replevin
In an Action of Replevin, the owner who is not in direct possession of their property files a lawsuit against the wrongful direct possessor of their property. The purpose in filing for this action is to ensure that the property is returned to its direct possessor (to its real owner who owns the property) based on the property right.
The action of replevin has a greater function in case of movable properties. Considering that the transition of the movable property has a reason, the action to be filed in the event of invalidity of the legal procedure that constitutes the legal reason of the transition of the movable property will be an Action of Replevin. The claim under an action of replevin is a real claim, thus it is not subject to statute of limitation.
In an action of replevin, the Court is asked to determine the property right and decide on the return of the property. Therefore, an action of replevin has the characteristics of an Action of Performance.
This action provides for prevention of an on-going attack on the Property of the person who has the right of property. The confiscation may either occur directly as a result of an action of a person or be a situation in which the owner limits the property right of the owner as a result of a situation that the defendant has created willingly.
Confiscation is not necessarily based on a fault of the defendant. However, the confiscation must be unjust. If the owner is required to tolerate the confiscation, i.e. in case of a passage easement, renting or any situation that arises from the public law, the owner may not ask for prevention of the confiscation.
Actio Negatoria is a real action; therefore, it is not subject to statute of limitation. However, it can be filed in case of an ongoing attack or threat of attack.
Land registry is the composition of various books and documents that serve the purpose of providing public knowledge about the rights on immovable properties.
Annotations that may be Out on a Title Deed
- Right arising from a construction contract in return for land share,
- Preemption right arising from a contract,
- Right to purchase arising from a contract,
- Right to repurchase arising from a contract,
- Right to move pledgee to higher order of priority,
- Decisions as to beneficial occupancy, use and management in jointly owned immovable properties,
- Contracts regarding continuation of joint ownership in jointly owned immovable properties,
- Contracts for removal or change of limitations on the immovable property arising from the law,
- Contract for waiver of legal preemption,
- Ordinary lease and usufructuary lease,
- Right of recourse without release,
- Time prescribed with attachment, adjudication order and arrangement of bankruptcy,
- Setting up a homestead, appointment of reversionary heir and matrimonial home,
- Real right claims and other rights and circumstances.