Rustic estates part II: legal framework in Catalonia

1. The logic of the couple of texts that we are doing: from the uses of the rustic estates to the legal fit of this type of property.

In Finques Feliu with this couple of articles we aim to present a complete exposition on the rustic properties. A week ago, in the first part of this article, which you can access in this link, we described:

- Rustic estate uses

- The way towards a perfect maintenance

- How to get an economic return

In this second text, we will advance from the geographic and economic perspective of the previous one towards how the legal system supports the legal figure of the rustic properties and allows the wide range of activities that can be done with this real estate product.

2. Which is the legal regulation for the transactions of rustic properties or for other activities that are carried out? 

The Catalan Civil Code. This legal document compiles systematically the norms that make reference to the relations of private right of natural and juridical persons: transfers of property, marriages, inheritances, etc.

3. What does the non-regulation of a matter in law imply? The importance of the Catalan Civil Code

This section reinforces the importance of the Catalan Civil Code (hereinafter CCC) in particular and, in general, of having a legislation in force in any matter.

What does the non-regulation of a matter mean in a State under the Rule of Law? Broadly speaking: as long as there is no law in force on that which is not regulated, the legislator cannot impose any type of obligation.

The main legal defects to be avoided in a law are: 

a) To arbitrarily impose a legal obligation -wih no clear legal reasons described-

b) Drafting a regulation with manifest legal form defects

c) Failure to advertise the regulation -concealing the principle of publicity-

Any of these three defects entails the full nullity of the law. This implies that, in the event of an appeal, the court would agree with us. In addition to having minimum formal requirements, any regulation must aspire to have a good technical quality to avoid defects and ambiguities.

In addition to a question of legal foundation, the hypothetical fact that the rustic properties were outside the law would have countless detrimental effects for individuals and Administration, we will mention only four:

a) Null legal certainty: 'This general principle of law imposes that every person has certain and anticipated knowledge about the legal consequences of his acts and omissions'.

Source: Diccionario panhispanico de español jurídico.

b) Lack of protection of the rights of the parties: if an event is not regulated, individuals or legal entities are not protected against contractual abuses. In fact, the same concept of abuse in law is the same in relation to a criminal offence. Thus, if there is no regulation, from the point of view of the law there is no abuse either.

c) Impossibility of setting taxes: The administration cannot create taxes on an unlawful activity. To do so, it always needs a legislation that justifies them, delimits the cases of application of these taxes and establishes all the concepts necessary to make the payment.

d) Obligation to protect nature: As long as a matter is not regulated, would the mere knowledge of a crime justify a sanction by the Administration?  No. Without pre-existing regulation, even if the Administration knew that the owner of a rural property does not protect nature, this "knowledge" would not entitle it to impose the safeguarding of nature.

At this point, we can conclude that the validity of the CCC: it is crucial because it automatically causes all the previous disadvantages to fall away. 

4. The CCC: Autonomous  Catalonian legislation totally admitted by the Spanish State

With the recovery of the Catalan self-government, by means of the Statute of Sau of 1979, the CCC returned to deploy all its legal effects. These are valid only within Catalonia, therefore, in this matter the legislation of the rest of Spain is not applicable to us.

This fact has historical reasons, and the fact that it is our own legislation has not been questioned by the courts. The following link to the Boletín Oficial del Estado (the Spanish State Gazette) is a sure proof that Spain considers the CCC as a 'consolidated legislation'. 

5. Several aspects enumeration regulated by the CCC in reference to the rustic estates

a) Property rights: The CCC regulates the full tenancy or the right of use and enjoyment, for example, it establishes the rules for the transfer and the transmission of the property.

b) Right of inheritance: It determines, among other cases, the regulation of intestate succession. This concept refers to when the succession occurs mortis causa, i.e. how to proceed in the event of the non-existence or legal invalidity of the will of the person already transferred and how to make other dispositions by will.

c) Cultivation and usufruct rights: The CCC regulates the usufruct rights of the tenant of the land, while the owner reserves the ownership of the land. To be exact, the owner reserves the nuda propiedad: which is the right to the property but not to its use and enjoyment. Therefore, usufruct and bare ownership are the reverse side of the same coin - the holding of the property by the different legal entities that have rights over it. 

d) Rural leases: The CCC establishes the rights and duties of owners and lessees in agreements such as rental or lease of rural properties. In this sense, it is appropriate to mention Law 49/2003 on rural leases, this regulation determines: uses of the properties, which contracts are considered rustic, the rights of production or the scope of non-application of the law (urban land).

e) Environmental regulations: Catalonia has exclusive and concurrent competences with the State in environment. The rustic lands, which are located to the nature, can be specially affected by the exercise of the self-government in the indicated scope.                                                   

Thus, for example, the Catalan Government can, among other powers:                                                                                             

To change the qualification of the ground                                                                                                   
To regulate its exploitation                                                                 
To consider that the properties have an ecological or landscape value that deserves to be protected.

f) Expropriations: As we said in the first part of this article, the reasons for expropriation must respond to the public interest. In this sense, the CCC establishes the compensations to compensate the affected owners.

g) Neighborhood rights: The relations between co-owners of rural properties are also included in the CCC. We think, for example, in the "real estate easements" - concept that we explain in this link -, in shared uses and responsibilities for damages derived from activities: agricultural or forestal as can be the conflicts derived from cutting branches or roots of trees located exactly in the limit of the property. Click here to find out what the law provides in the latter case.

Beyond the CCC, the qualification of the land where your land is located can be affected by the competences included in article 84.2 epigraph a) of the Statute of Catalonia.

This provides that local authorities have competence in: "The planning and management of the territory, urban planning and urban discipline and the conservation and maintenance of local public domain assets."

With this reference in the Statute of Catalonia we have completed the article.

For any additional questions you can contact us at this link.