Many law students or people who approach this branch of knowledge, but without practicing it professionally, can be heard that the Civil Code seems like a dead standard, and they bring up some articles such as 612, 613 or 465. and the typical questions, but is this valid? or does this apply??
So that you do not have to bother looking for the content of these articles, I will tell you that 612 tells us that "The owner of a swarm of bees shall have the right to persecute it on another's property" the 613 of that “pigeons, rabbits and fish that pass from their respective hatchery to another belonging to a different owner" and article 465 that "animals were or domestic are only owned while they are in our possession".
We are not going to deny that the application of such norms in today's society is quite residual, without also denying the fact that they establish general principles. However, there are other regulations that are often accused of being inconsistent with reality, such as accession regulated in articles 353 et seq. of the Civil Code, when it is an institution that is constantly present in our lives, even without being aware of it.
ACCESSION IS A WAY OF ACQUIRING PROPERTY.
With this I am focusing on what I want to deal with in this post, What is building on someone else's land?.
In order to deal with the building on someone else's land we must start from the figure of the accession that defined in article 353 of the Civil Code tells us that “The property of the goods gives right by accession to everything that they produce or joins them or incorporates naturally or artificially.
As a consequence of this article, agricultural entrepreneurs own what their fields produce, or in real estate, a person owns the house that is built, because they own the land on which they have built it..
THE BUILDING ON OTHERS LAND
Building on someone else's land is not exclusively the case in which I appropriate someone else's land and build a house. The most common assumptions derive from the situation of confusion in which the ownership of some assets and/or patrimonies finds itself, and they are much more frequent than we might imagine at first sight, and so I am going to cite some examples, all of them totally true. .
Rustic farm owned by the father where the son develops a livestock activity and has built some warehouses and all the necessary infrastructure. In these cases we have legally, in accordance with the aforementioned articles of the Civil Code, the property of the ships belongs to the owner of the land (the father) but the real value of the farm, much greater than that of the land, derives from the effort, initiative and money of the son, who has legally built on someone else's land.
Solar in which a company builds a house of flats intended for sale, having in its name the project of works, the license and paying all the building expenses, but which is in the name of one of the partners of this company. As in the previous example we have that legally, the property of the house belongs to the owner of the land (the partner) but the real value of the farm, much higher than that of the land, derives from the contributions of the company, which legally has built on foreign land.
The moments in which these anomalies are usually revealed, many of them derived from errors or false beliefs about the ownership of the goods, are either when the owner of the farm or plot of land dies, or when the intention is to sell or Mortgage the farm, moments in which you usually go to the Notary, with the phrase fix this for me, and above all that it does not cost me a lot of money.
The first thing we must point out is that having good will from all the stakeholders, the solution is not complex. The problem on many occasions, especially in the family environment, derives from the fact that there is no documentary justification of all the works or actions carried out to pay for the construction, and of course in these cases the tax authorities are always on the lookout for us.
WHAT THE CIVIL CODE SAYS
The regulations that regulate this matter are quite concise in the Civil Code establishing:
to.- in the first place (article 358 CC) that includes the principle "surfaces only cedit" and according to which the property of what is built on someone else's land belongs to the owner of the land;
b.- In case the building has been done in good faith (Article 361 CC), the owner of the land may choose:
b1) between making the work his own, after the compensation established in articles 453 and 454 (therefore assessed), and while the compensation does not take effect, the owner of the farm does not hold ownership of the building and the builder has the right retention;
b.2) or to force the builder to pay the price of the land, by way of buying and selling it.
c.- and in the event that the building has been done in bad faith (article 362 CC), the person who has built on someone else's land, loses what was built, without the right to compensation and may demand demolition to return the things to its primitive state (article 363 CC).
THE INVERTED ACCESSION EXCEPTION
The regulations of the Civil Code have been subject to a certain softening by jurisprudence (for all STS 22 Mar. 1996), through the so-called figure of the inverted accession, and which has been recognized in the Article 542-9 of the Civil Code of Catalonia, when dealing with the Construction on someone else's land with a higher value than the building
In those cases of overreaching constructions, that is, when it is built on its own land but part of someone else's land is invaded, fulfilling the requirements that we will see later, and contrary to what the Civil Code says, the owner of the building can demand ownership. of land occupied by others, that is, with the right of the owner of the invaded land to receive economic compensation from the builder, which will be determined by the sum of the value of the occupied land plus the economic damage that its loss entails for the rest of the land. affected by the invasion.
Such requirements of the inverted accession are the following:
a) that whoever seeks it is the owner of the building;
b) that the building has been built on land or that it partly belongs to the builder and partly is the property of another;
c) that the two parts of the ground form an indivisible whole with the building;
d) that the building attached to the land of the builder has an importance and value greater than that of the invaded land;
and e) that the builder has acted in good faith.
However, with this figure the problems that we have raised at the beginning are not solved, since the inverted accession does not occur if the invasion of another's property has been total, that is, one hundred percent, the regulations being applicable in such cases. quoted from the Civil Code.
THE AGREEMENT OF THE PARTIES
For this reason, we must say that the norms of the Civil Code on the accession regime and the jurisprudential solution of the inverted accession, regulate a situation, according to which the judges must rule in case of conflict, but there is no doubt , that if we have the agreement of all the parties involved, a different solution can be arbitrated from the one provided for in the Civil Code, or the one directly provided for in the Civil Code, but without having to resort to any judicial procedure.
Such solutions could be the following:
a.- Within the partition of the inheritance, it would be possible to recognize a credit against the owner of the building, and for the value of the land, or a credit in favor of the inheritance for the value of the built work.
b.- If it is done outside the partition, it can be done through a sale or donation of the land in favor of whoever has built on it, despite the fact that the plot as such does not exist.
c.- A third option would be to use the formula that was discussed in the DRGR resolution of May 26, 1999, that is, recognizing a kind of community between the builder and the owner of the land, in those cases in which it is desired award the property to both and that depending on the contributions would determine the participation in the final ownership of the whole.
All these solutions are perfectly possible, from a civil point of view, and in fact we have applied them, although I have to say that when the deeds always arrive at the Property Registries, we have received calls asking if we can explain the deed to them. a little more.
THE FISCAL PROBLEM.
We had said at the beginning these solutions can present problems at the fiscal level, especially when the amount invested or paid in foreign land cannot be justified.
In the cases in which the farm is left in a will to the person who built on it, the High Court of Justice of Galicia, in its judgment of June 25, 2014, stated that when the deceased, owner of the land, dies, no credit against the owner of the building, and for the value of the land, will become part of the mass hereditary, since that land is already left to him as a legacy. Nor does the building become part of the hereditary estate, with a credit in favor of the heiress for the value of the built work, since the right of option of article 361 was not exercised and the land was already awarded to her in the will, therefore, the value of the building must be excluded from the estate.
But outside of this specific case, if the investment in the building cannot be justified, it would very likely lead us to additional taxes due to the donation tax, due to excess adjudication in inheritances, or to complementary liquidations in the ITP that included, not only the value of the land, but also that of the built work.