La división y la temporalidad del dominio

Abstract

The Catalan legislator has introduced in the fifth book of the real rights of the Catalan civil Code two new forms of the property right, through the Act 19/2015, 29th July, of the Catalan Parliament. Nevertheless, the temporary ownership and the shared ownership are unprecedented in the Spanish legal system of laws, because they are based on forms of the English property right whose characteristics substantially differ with regard to Roman property right, which is contained in both the Spanish civil Code and the Catalan civil Code, that define the property right as an absolute, exclusive and perpetual right. The incorporation of the temporary ownership and the shared ownership in the Catalan civil Code could involve troubles because the division of the domain and its temporality are residual or non-existent among the institutions of civil law of the Spanish civil Code and the Catalan civil Code. However, the preamble of the Act 19/2015, 29th July, refers to some institutions that involve a division of the owner's powers or a transitory situation of temporary domain that shall be studied to determine whether if the division and the temporality of the property right could be held based in such institutions. Likewise, the Spanish Constitution 1978 regulates the property right in the article 33 CE. This article proclaims the social function of the property right and the article 53. 1 CE imposes the constitutional mandate to the legislator to preserve the essential content of the constitutional rights in the conformation of its content. This is the reason why the constitutional doctrine of the property right is studied to analyze the constitutionality of both new forms of Catalan properties in terms of their legal nature, the scope of the principle of the social function of the property right, respect for the guarantee of the essential content of property based on the regulation of the temporary ownership and the shared ownership, as well as the powers of the Catalan legislator to regulate new types of property rights

Date of Award	19 May 2017
Original language	Spanish
Awarding Institution	Universitat Autònoma de Barcelona (UAB)
Supervisor	Lorenzo Prats Albentosa (Director)