INTRODUCTION
Housing fulfills a high social function in our country, as it is destined to satisfy one of man's primary needs: "the right for every family to have a comfortable home", a principle recognized in the Constitution of the Republic, with its antecedent historical through the self-defense statement of the Commander-in-Chief Fidel Castro Ruz, known as "History will Absolve Me", where he treated housing as one of the six fundamental problems afflicting the Cuban people. That is why it has been a source of inspiration for this work, given the existing housing need in our country where many families require housing,and in which it constitutes a prioritized route the construction by own effort in state waste lots and on which a Real Surface Law is always constituted.
The current revitalization that the surface has undergone in the international arena responds to the possibility that those who do not have the necessary funds, or do not want to undertake new works on their land, can, without parting with it, give it to the surface for the surface ventures that may require large investments or a business organization that the owner does not want or cannot face. At the end of the surface, the domain owner will regain full power over his land, perhaps enriched with important works.
Undoubtedly, its operation is closely interrelated with modern culture that does not give space within it for lasting works. A large hotel company, for example, may be interested in constructing and owning its building on the surface, knowing that construction will be obsolete after its completion, and thus, pay a lower price for the use of the land.
Thus, under the surface you can start large companies, the surface is a common place in comparative doctrine.
At the same time, it is important to remember that the devastated Germany of the postwar period had, in the right of surface, one of the fundamental supports to enable its surprising reconstruction; and the monuments that were built in Paris based on this right are well known. For his part, in his review of the X National Conference on Argentine Civil Law, Capón Filas brings up the case of the United Nations palace, in Geneva, raised on the surface, and the case of some cities, such as Bern, settled about this right. However, it should not be believed that the success of the surface is automatic, Diez-Picazo and Gullón recall that in Spanish law the surface is still lifeless among individuals.In the opinion of these authors, “the detachment of the same from the text of the laws into practice will not be achieved until the social mentality that does not conceive that the ownership of a home does not entail the ownership of the land on which it is located does not change. built, or that an income can be obtained simply from it (the consideration of the surface).
Therefore, the mere legislative reception will not suffice. In addition to the sociological change that Spanish teachers speak of, it will take an attentive legislator to immediately solve the interpretive problems that may arise in practice, and above all, that the new figure be accompanied by adequate tax and administrative regulations, which they express renewed interest in this form of real law.
The Real Surface Law has great legal relevance, since by regulating the right that a person has to build on someone else's land and become the owner of what is built, under certain conditions, it constitutes a high legal conception of the human intellect in response to an economic need. Thus, civil laws must protect the civil demands of individuals, providing this real right, an efficient service to small houses, while serving as a tool for the State to procure certain social classes the possession of their own homes.
Therefore, with the completion of our investigative work, we will approach Surface Law as an institution in order to systematize the theoretical, legislative and practical criteria around this topic and its link to the allocation of state-owned wastelands, legal regulations. of which it has been object, as well as complementary norms and modifications suffered from the promulgation of Law 65/88 "General Law of the House" until the present time in our territory.
It has been difficult for us to undertake an investigative work on a legal figure that does not have specific spaces in many legal systems and that has had an uneven historical-legal evolution in order to achieve its autonomy. Caused by being seen, sometimes confused among other legal figures, others by not recognizing the economic-legal value it presents, and in several cases, sadly unaware of its effects and advantages that may well be put at the service of society.
DEVELOPING
The study of science, technology and society is essential to face scientific research in different branches of knowledge, reflecting the complexities of this conceptual triad constitutes a challenge that must be overcome in the humanistic sciences and in this case with the legal sciences. The uninterrupted deepening of scientific knowledge about the origin, functions, and evolution of the universe and of life endows humanity with conceptual and pragmatic approaches that exert a profound influence on their behavior and their perspectives, not admitting what changing human needs they are superfluous and which are essential in a given historical-concrete moment.
Society progresses and it is difficult to establish the ascending or descending direction in the face of the new progressive and regressive tendencies that result in the characterization of the multifaceted social movement. Therefore old uses of legal figures should not be questioned, if not perfected and that is the case of real surface law. Here we appreciate the influence that science has to exert in the formulation of decisions of a normative or regulatory nature.
Strengthening the role of science for a more equitable, prosperous and sustainable world requires a long-term commitment from all stakeholders, be they in the public or private sector, increasing investments, revising investment priorities accordingly and sharing scientific knowledge.
Agricultural production has increased enormously in many places to meet the growing food needs of the population and its accelerated growth using large tracts of land for housing construction.
There is now the possibility of urging a better use of the land assigned to the conception and manufacture of new homes, plantations and buildings and encouraging the use of old legal figures that facilitate, at least partially, for the investment of having properties or in its place of ample economic resources, for the installation of new production lines, services and even for recreation. The scientific community, together with other sectors of society, can and must play a fundamental role in this process.
At the beginning of this century, the enactment of new laws that regulate real surface law have coincided in various parts of the world, resulting in a legal figure that in modern legal systems is increasingly important, due to the economic function that is called to fulfill. In international doctrine, the real surface law is conceived as that figure that allows building –or planting or building- on other people's land, generally in exchange for a consideration, or directly acquiring an existing work –or plantation or afforestation; all this, without the need to buy the land or the property on which they are based. Thus, the aim is to obtain a decrease in construction costs, given the high prices of land.
The surface has its origins in Roman Law, where it reaches its splendor as an Institution of Law, the one that has been decreasing since the Middle Ages; However, due to the fact that it is essential for the progress of buildings, the lowering of the cost of land that represents the constitution of law, among other important effects, has been taken up in modern times. These effects were ignored during the codifying period of Civil Law, which did not promote the regulation of the surface, so that today there is no legal model, much less customary of its formulation.
The historical origin of surface law in Roman Law is uncertain and indefinable. However, as nothing is known about the legal regime of occupation of these public lands and there are no data about the concessions granted; if these were temporary or perpetual, free or onerous, the authors have concluded that the community formed by the settlers on common land could be the remote antecedent of the so-called “horizontal property” and not the origin of the right of surface.
In this period, according to ULPIANO, the right was protected with the injunction of Surfacebus (D., of Surfacebus, 43, 18): uti ex lege locationis sive conductinis surface, qua de agiter nec vi, nec precario alter ab altero fruimini quo minus fruimini vim fieri veto… (When someone, by virtue of a lease and without violence, clandestinity, or precariously, enjoys the surface in question, I forbid it to be disturbed in their enjoyment).
The superficial property contemplates the possibility of acquiring the construction (or plantation or afforestation in the case of the rights that we are particularly examining) independent of the real estate of the location. In its modality of concession ad aedificandum it is a posteriori, while land ownership is a priori. According to PEÑA BERNALDO DE QUIRÓS, the rabassa morta “is a census-type surface right, of a temporary nature and for a specific purpose: a contract is constituted by virtue of which the owner of the land cedes its use to plant vineyards for the time that the first vines, paying the transferee an annual income or pension in fruits or in money ”.
The regulation of real surface law has had a sustained and growing development in Cuba today, based on the economic, social and legal changes experienced with the revolutionary triumph, its main deficiency being its considerable legislative dispersion.
In parallel, there are various legal regimes of law in our legal system with peculiar characteristics that resemble and differentiate it from the doctrinal conception of it, both in the Roman-French system and in the German system, which is due to the sources of where our current legislation comes from, bringing as a consequence that the existing legal institutions have special features.
When analyzing doctrinally and legislatively each of the peculiarities of the institute, based on foreign doctrine (Spanish, German and Italian, mainly) and comparative law; in order to analyze the various legal regimes of Surface Law in Cuba. In this critical analysis we carry out both of the Cuban Civil Code; as well as Resolution 2/91 of the President of the National Housing Institute that regulates the perpetual modality of Surface Law in Cuba, with other special legislations that are related to it; and the Law 36 of Agricultural Production Cooperatives and its complementary, we try to unravel the characteristics of the Surface in Cuba. On the other hand, there is a modern and advanced regulation of the institute,in certain aspects and in this one they have lagged behind in relation to the most modern conception of this matter in the world.
It is convenient to point out that in Cuba there is no Land Law but a Land Use Plan that is prepared by the Provincial Physical Planning Directorates, which achieves its specification through its planning levels, until reaching the Urban Regulations, which They precisely determine the vocation or not of the land to be built. Therefore, the granting of a Surface Right in Cuba is necessarily made dependent on it. The building area of the land constitutes an essential element of the constitution of the right, because otherwise the concession of the same that aims to build would be useless.
On the basis of this analysis, whenever the State grants surface rights in Cuba, it will be an administrative or sui generis act, since if it is established for the purpose of building homes by individuals, it will be governed by Resolution 2/91 issued by the National Housing Institute, administrative body. Therefore, it is born from an administrative act that dictates a Resolution, which becomes the title that grants the right and other procedures and until the resolution of conflicts will be governed by the administrative process.
Both the Cuban Civil Code and Resolution 2/91 do not establish a term to finish the work but to start it, that is, the landowner is required in two or a year respectively to start the work. Actually, the application of one or the other system will depend on the economic conditions prevailing in the country in question. In ours it would not be judicious to establish a minimum time to complete the construction, since most of the rights granted for that purpose would easily be extinguished; however, it brings as inconvenience that the titular subject may begin the work and fifty years pass and not finish it. The mixed solution would be an interesting legislative policy to develop a Surface Law with a more advanced legal technique. This solution was adopted by Resolution No.15 of 1988 of the INV that conceived that if "… once construction began, it would be paralyzed for a period of more than 18 months, without circumstances that justify it, the right is lost…" Resolution that is in force although modified in certain aspects by Resolution 160/91 INV and by INV Resolution 3 of 1991; not repealing the commented postulate.
The Cuban Civil Code establishes as a special cause of the extinction of the surface right the assumption of extinction of the legal person who owns it. Of course, when it is extinguished, the mortis causa succession would not operate for elementary reasons of the legal nature of the legal person that extinguishes it. But, what would happen if the titular person were a natural person? The intestate succession rules would apply and if there are no heirs based on the regulations of article 546.1b) of the Cuban Civil Code, they will be transmitted ipso iure to the state. But if the state was, as it turns out in most cases, who granted the right, it is extinguished by confusion, since the qualities of grantor and superficial are brought together in the same subject.The norm of Resolution 2/91 is stricter and regulates that the Perpetual Surface Law is extinguished by the death of the land owner, if there is no heir with the right to have the home transferred to him. The regulations of the rustic surface law are stricter, since Decree-Law 125/91 on possession, property and inheritance of the land, only allows the person who works the land to inherit. The Cuban Civil Code admits in its article 224 that the right is extinguished by the general causes of extinction of the legal relationship that have been discussed, namely, with the interpretation of the precept, loss, consolidation, waiver, revocation, expropriation and others of a character special linked to regulated law. Resolution 2/91 adds to the list of grounds for extinction the confiscation that does not admit comments.The surface area granted by the cooperatives contributes as its own cause of extinction the fact that the cooperative member ceases to be part of the cooperative (Joint Resolution MINAZ, INV, MINAGRI, May 14, 1988).
It has been seen that the Surface Law admits or supposes as a special feature that differentiates it from the Usufruct, the fact of being transferable. We should ask ourselves if the superficial property has already been built, if the alienation also leads to the superficial property or only to the ius edificandi? The landowner is empowered to assign in any title both his right to build, and the surface property independently, taking into account all the stipulations established in the title.
The Cuban Civil Code in its article 223 admits that "the surface right is transferable, unless the law or the constitutive title results otherwise". As can be seen, the regulations are general and can cover both mortis-cause and inter-alive transmission. Although it is not admissible that the transmission by inheritance can be excluded by legal acts. However, the Seventh Resolution of Resolution 2/91 of the National Housing Institute pronounces itself affirming this argument, although in an affirmative way, by establishing that “The subsequent transfer of the Perpetual Surface Law on wasteland is prohibited, except to the State. The cases of death of the landowner are excepted, in which his heirs will replace him in his rights and obligations. ”Projecting the norm more than a legal trial in favor of the state in the event that the surface party intends to transfer the right, a single transmission option. Thus, Resolution Seventeen-seventh establishes that if the landowner intends to sell the house to the state, the Provincial Housing Directorates must pay the price of it under the square meter system. Thus, the disposition of the right by the surface owner may include the exchange thereof.Thus, the disposition of the right by the surface owner may include the exchange thereof.Thus, the disposition of the right by the surface owner may include the exchange thereof.
CONCLUSIONS
- As of the enactment of Law No. 65 in 1988, the General Housing Law, the delivery of plots from the state fund for construction by own effort, with perpetual right of surface, was maintained and regulations and restrictions were introduced to the right of cession of wasteland personal property, with a preference for trial in favor of the State. The regulations in force regarding the transmission mortis causa of the Perpetual Surface Law limit the recognition of this right to the cohabitant. The regulations in force regarding the Perpetual Surface Law they do not give answers to factual assumptions that occur in practice, as happens with the allocation of waste lots in favor of selected people who are married;or as it is the case of the superficial ones who at the moment of the recognition of the right were married and later divorced, being one of them who really builds; We also do not find protection when this right is granted to a single person, being single but later married and the house is built by the property community.
RECOMMENDATIONS:
1. To the National Housing Institute assess the following proposals:
Modify the seventh and eighth sections of Resolution No. 2 of 1991, in the sense that:
- The cohabitant who permanently occupies the house, can replace the deceased landowner in his rights and obligations in the absence of the heir who meets the requirements of the Special Housing Legislation, which we propose to be worded as follows: The subsequent transfer is prohibited. of the perpetual surface right on the wasteland, except for the State. The cases of death of the landowner are excepted, in which his heirs or cohabitants will replace him in his rights and obligations.
The perpetual surface right is extinguished by:
- Upon the death of the land owner, if there are no heirs or cohabitants with the right to have the home transferred to them.
2. Regulate in the current provisions, regarding the allocation of waste lots in favor of selected people who are married, and establish the mechanism to follow, in the case of the landlords who at the time of recognition of the right were married and Subsequently they divorce, being one of them the one who really builds, and what to do when this right is granted to a single person, being single but later married and the house is built by the property community.
3. Modify article 22 of Resolution No. 14 of January 13, 2006, in the sense of eliminating the restriction that represents for the owner of wasteland, the selection requirement demanded for the future owner.
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