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Transfers of property rights

Transfers of property rights

When a person has a right to a thing then the right is called “real”. The rights in rem are determined by the exclusive law-holder (the principle of the closed number), named ownership, servitude, pledge, and mortgage.

Ownership and slavery are the rights that generally give their organization (subject to the right) the right to use the thing. The pledge (for movables and rights) and the mortgage (for real estate as a rule) are intended to secure a claim against a person who has the right to own or care for it and that is why they are called security interests.

The servitude is distinguished in real and personal. Personal servitude or easement is created in favour of a particular person (such as usufruct), while the servitude done in favour of a person who is the holder of a specific right to another thing (such as the easement of passage at a property and in favour of, for example, the owner of the adjacent property).

Thus, when the right to use the property (such as the usufruct, for example) is removed from full ownership, it remains defragmented (the so-called “fine” ownership).

Pursuant to Article 369 of the Civil Code, treasury bills must be drawn up with a notarial deed. Thus, the creation of real rights and their alteration and transfer must be done by contract and a private document (with or without a certificate of authentication by a lawyer, JEP or other public authority) is not enough, let alone an oral agreement.

Also, no matter what the property is declared as its own in the Real Estate Register of the State Agency of Public Prosecution with the E9 statement and consequently who pays ENFIA and other taxes on the property. Only exceptionally these events could be evidence of rights and always under the strict conditions of the law.

For these reasons, especially if you are buying a property (or in general, you are entitled to a real right in favor of you), we advise you to consult a lawyer, since only the drawing of the contract without effective legal control gives you absolutely no certainty about proper acquiring of the right. The lawyer must investigate the entire history of the right in question and ascertain whether it belongs to the person who transfers it to you. This is because the law does not recognize the bona fide acquisition of property by non-owner. All transfers from the creation of the right must have been done legitimately, otherwise, you do not acquire the right, but you only have a claim for loss or damages.

Lastly, an additional condition for the proper creation or alteration of a right in rem is the transfer of the contract to the competent department, for which you can see in detail the “Cadastre” tab of our website.