La propiedad privada inmobiliariabases constitucionales y régimen estatutario de la propiedad urbana y la propiedad rústica

Abstract

As its title indicates the thesis aims to examine within the Spanish constitutional framework and the legal regime that it develops, the general significance that the right of private ownership of real estate has in our legal system. In particular, it focuses on the issues raised in the different "statutory" regulations, as well as the social function which they establish according to the types of real estate that constitute its object. 1. It analyzes primarily and in general terms, the content of this type of law, distinguishing a first level of constitutional rank, in which the "core content" (art. 53.1 CE) is placed, referred to private property in abstract, as a legal institution, which is "recognized" by the CE in its article 33.1, and a second level of statutory development, in which the legal regulation of the type of property is situated, in which not only the institutional content has to be recognized, essential in the legal regulation, but also the "social function" has to be delimited, which that law has to fulfill (art. 33.2 CE). With respect to this social function, the question is posed of whether it is an integral part of the content of that law or if, on the contrary, it does not form part of this content, but it affects the exercise of its own right according to the relevant statutory regulation. The first position is maintained by TC in its sentence 37/1987, as well as by the doctrine, especially public jurists; whereas the other one is sustained - with exceptions - by the civil law doctrine. This is the argument held in the thesis, based on the arguments which, in brief, are: the different types of interests that underlie and to which they respond, the private property and its social function, the unique and particular interest of the owner, and the general or public interest respectively; by the very nature of "right" that the private property has, insofar as active status of power but not of duty; by the special legal and constitutional articulation of the right to property; because the social function is predicable of its own object, not of the unitary way of this type of rights; and because the social function is to observe the essential content of the right to private property, in so far as as it defines and restricts its content. It is shown by the type of legal techniques by which the social function is implemented � limits, limitations, positive duties and charges- all of them being restrictive of this right and which condition the exercise of it, under the different legal cases. All these issues are fully developed in this research, with respect of rustic and urban property. 2. The content of urban property is constituted by the urban use, that is, the faculty of building on ground or urbanised plot (buildability) for a specific use, which it depends not only on the convenience of the owner of the right but also on the urban planning (law + plan), according to their legal status (urban soil state and regional legislation). In addition to this statute, the dynamics of the urban property - with reference to urban activity and ius aedificandi-as well as the assumptions of transferability of urban use (to build it in the same farm or plot; on another plot in process of urbanization, TAU, etc.) are examined, as well as the urban exploitation registration. And on the other hand, with respect to the social function of the urban property, in addition to exposing the issues that the basic state LS (2008 TR, esp. its article 16) and the respective regional town planning legislation, the limitations imposed by the sectorial legislation are also exposed. 3. With regard to the rustic and agricultural property, apart from the faculty of cultivation, and in relation to it, the use of irrigation water, the right to build on rural land; the regime of �minimum units of cultive�, the preferential options of owners of �farmland to purchase land adjoined to their own are examined in this work as well as land consolidation and farm registration. Likewise, with regard to the social function of agricultural property, we deal with the legal duty of rational and efficient exploitation of rural properties (conservation and improvement of soil, transformation of land into irrigated land, a regime of noticeably improvable farms, etc.). As far as the private forestry property is concerned, under the budget of the legal concept of forest and the typology of forest land, we deal with the use of private forests, the conservation and improvement of these types of contracts in this regard, as well as the social and ecological function of forestry property.