Real rights: what are they?

  1. perty rights
  2. Real rights of enjoyment
  3. Warranty rights

Real rights: what are they?

These are absolute rights over things that give their owner immediate power over the good that constitutes their object.

They can therefore be asserted in front of everyone, they are established by law and have a patrimonial character because the content is mainly economic.

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Their key features are:

  • absoluteness: theycan be asserted erga omnes, that is, before everyone and not just before the alienator;
  • immediacy:the holder realizes the right directly without the need for the collaboration of other subjects, as happens in credit rights;
  • typicality:real rights are only those provided for by law. Therefore, they constitute a category of rights consisting of a limited number.

Real rights also have their own particular classification and are divided into:

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  • rights over one’s property: theonly right of this kind is the property right which gives its owner the widest powers over the property, within the limits imposed by law;
  • real rights of enjoyment: they insist on the right of ownership;
  • warranty rights: they constitute a guarantee on an asset, a guarantee so effective that it can be opposed to any subsequent owner of the thing.

Real property rights

These rights are exercised over one’s possessions, article 832 of the civil code which establishes:

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“The owner has the right to enjoy and dispose of things in a full and exclusive way, within the limits and with the observance of the obligations established by the legal system.”

It is therefore the right to use or not use the thing to get all or no use from it. This faculty also contemplates the possibility for the owner to transform the thing and exclude anyone else from the enjoyment and disposition of the thing. In fact, the right of property makes legitimate the claim of the individual to use things to the exclusion of others. This claim is expressed in article 841 of the civil code :

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“The owner can close the fund at any time”.

However, both the civil code and the constitution limit the extent and methods of exercising the right. In fact, Article 42 of our constitution establishes:

“Private property is recognized and guaranteed by the law, which determines the methods of acquisition, enjoyment and limits in order to ensure its social function and make it accessible to all.”

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On the one hand the right of ownership is recognized and guaranteed, on the other hand the exercise of the right itself is limited and regulated. The constitution establishes that it is the law that determines the methods of acquisition and enjoyment of the right, removing from private autonomy the right to freely choose the methods of acquisition and enjoyment of the right.

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Real rights of enjoyment

This type of rights is exercised over the things of others. These are limited rights because they are exercised over things owned by another person. Consequently, the powers granted to the holder of the right are limited.

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Furthermore, they are characterized by the possibility of extinction for non-use for twenty years or for confusion that occurs when the owner of a real right on what another person becomes the owner of the asset.

These rights, called real rights of enjoyment, are in turn divided into:

  • surface: right to build or maintain one’s own construction on the ground or subsoil of others;
  • emphyteusis:gives the owner the opportunity to enjoy a property, paying a fee and improving it;
  • usufruct:the right of a subject (so-called usufructuary) to enjoy a specific thing and to derive any benefit from it;
  • use: the right of a person to use a specific good and, if it bears fruit, to reap the benefits;
  • dwelling: real right that can have as its object only a house and that consists of the right to live there limited to the needs of the owner and his family.

Warranty rights

This type of rights constitutes a legal constraint on the asset for the protection of credit, the pledge and the mortgage belong to this type of rights. These are collateral real rights that ensure the creditor the possibility of subjecting to forced execution an asset of the debtor or of a third party that has been specifically bound for this purpose and thus satisfying himself on the proceeds of the sale of it with preference over any other creditors.

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The mortgage is the right which gives the creditor the power to expropriate the asset granted as security for a credit. The creditor can therefore foreclose the asset, have it put up for auction and then be satisfied on the price obtained from the sale.

The mortgage is established by registering it in the real estate registers managed by the Revenue Agency of the place where the property is located.

The  pledge , unlike the mortgage, is that right of guarantee granted by the debtor on a movable and not immovable thing. Furthermore, it should be emphasized that the pledge arises only with the actual transfer of material possession of the asset from the debtor to the creditor.

 

by Abdullah Sam
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