SURFACE RIGHTS - WHAT ARE THEY?

This is a real right, granted by the owner to another party, on a permanent or temporary basis, to build a structure on a piece of land.

In other words, it grants the perpetual or temporary faculty to build or maintain a work on someone else's land, or to make or maintain plantations on it.

Unlike usufruct, which consists of the right to use another's property, the right of superficies is a real right (of ownership) over the construction or plantation that is built (or planted) on the land.

The Right of Superficies and the Right of Property of the landowner are distinct but interdependent legal realities. As it is a real right, this superficies ownership can be alienated without the land itself necessarily being alienated.

The holder of the Right of Superficies is called the superficies holder, while the landowner is called the landowner.

How and where is the Right of Superficies established?

The Right of Superficies is established by contract, will, or adverse possession, for consideration or gratuitously. It may result from the alienation of pre-existing works or trees on the land, provided that it does not include the ownership of the land.

The deed for the Right of Superficies can be executed at a Notary's Office or a Land Registry, or through a Private Document Authenticated by a solicitor.

How is the Right of Superficies extinguished?

In the document establishing the Right of Superficies, the two parties may stipulate the extinction of this right depending on the fulfillment of any condition or as a result of the destruction of the work or the trees.

In addition, the right of superficies is also extinguished:

• If the superficies holder does not complete the work or proceed with the plantation within the fixed deadline or, in the absence of a fixed deadline, within ten years.

• Once the work or trees are destroyed, if the superficies holder does not rebuild the work or renew the plantation within the same deadlines from the date of destruction.

• When established for a fixed term and the term has expired.

• By the merger, in the same person, of the right of superficies and the right of property.

• By the disappearance or rendering useless of the land.

• By expropriation for public utility.

What are the rights of the superficies holder?

The Superficies Holder must enjoy the following rights:

• Use the surface of the land of the landowner in accordance with the signed contract.

• Enjoy and dispose of the superficies construction or plantation as their own property, separate from the land ownership.

• Exercise the right of first refusal in the acquisition of the land.

What are the duties of the superficies holder?

The Superficies Holder must fulfill the following duties:

• Pay the landowner the consideration agreed upon contractually between both parties.

• Build, erect, or plant in accordance with the contract, and, if a work project has been made, respect the projects discussed in the contract.

• Maintain the erected work and, in case of alienation for consideration, must notify the landowner so that they can exercise the right of first refusal for the purchase.

What are the rights of the landowner?

The Landowner must enjoy the following rights:

• Receive from the superficies holder the consideration agreed upon contractually between both parties.

• Before the start of the work or plantations, the use and enjoyment of the right of superficies of the land belongs to the landowner, so this person can use the land until the work or plantation begins.

• If there is a part of the land not used by the superficies holder, the landowner can continue their activity on the unused land, provided that such use is specified in the contract established between both parties.

• The landowner may resort to the termination of the contract before its term if the superficies holder does not build or plant within the agreed time, or if they build or plant with a purpose different from that granted.

What are the duties of the landowner?

The Landowner must fulfill the following duties:

• Not prevent or prejudice any activity or realization of the rights of the superficies holder.

• Ensure the quality of the land and its suitability for the contracted use and purpose.

• Give preference to the superficies holder for the acquisition of the land in case of sale for consideration.