1. GENERAL
We study the real estate registry law at this headquarters because in Peruvian law it has already been separated from other branches of registry law and in this order of ideas we hope that it will be useful not only for confessed registrars, so the first of the mentioned It will reach further development, and this will occur not only in Peruvian law, but also in foreign law. And it can even be done comparative law between the two, for example between Peruvian law and Spanish law, in this case we can affirm that in the second of the mentioned the legal discipline studied is more developed and for that purpose the treaties of ROCA SASTRE can be studied and José Manuel GARCIA GARCIA, of which the first is better known than the second, and the latter is a more recent work, however,We must specify that both Spanish treaties constitute important legal tools in the study of real estate or mortgage registry law that determine the beginning of a new stage in Spanish and European doctrine, as well as in the world doctrine of these times, in this sense, we can affirm that Spanish law is taken into account in some decisions of the Peruvian registry court.
That is, registry law turns out to be a fairly broad branch of law, however, few know that just as judicial law has procedural law as one of its branches, registry law does the same in the sense that one of the branches of the latter is the real estate registry law, but not the only one.
2. BRANCHES OF REGISTRY LAW
In this headquarters we must specify that the registry law has several branches, which we must mention in order to have a broader knowledge of this subject, within which we can cite the following:
1) General theory of registry law.
2) Real estate registration law or mortgage registration law.
3) Commercial registry law or commercial registry law.
4) Company registration law or company registration law.
5) Registration right of guarantees.
6) Registry right of movable guarantees.
7) Registry right of real estate guarantees.
8) Furniture registration law.
9) Registry law of legal persons.
10) Registry right of natural persons.
11) Registry right of people.
12) Registry right of goods.
13) Registration law of organizations.
14) Registration right of the property.
15) International registry law.
16) National registry law.
17) Foreign registry law.
18) Comparative registry law.
19) Business registry law.
20) Non-business registry law.
21) Corporate registry law.
22) Non-corporate registry law.
23) Civil registry law.
24) Criminal registry law.
25) Substantive registry law.
26) Procedural registry law.
Therefore, we must specify that the branch of the right to study at this headquarters, will be only the real estate registration law also known as the mortgage registration right.
That is to say, in the present headquarters we will not study all the registry law, but only one of its branches, the one that has reached its greatest development until now, and this not only occurs in Peruvian law, but also in foreign law.
Within the registry law some choose to specialize in some of its branches, which we have listed in order to know what they are and thus have a broader domain of the subject matter of study.
Not all registrars are specialists in real estate or mortgage registry law, which must be disseminated in our environment in order to emphasize its most important aspects.
Registry real estate law also studies registry principles, but only taking into account the first of those indicated, in this sense, the subject is similar and is known by the name of mortgage principles or principles of mortgage law or registry principles of law mortgage, about which there is little information in Peruvian law.
3. DEFINITION
At this site we will study the definition of real estate registry law, in order to have a more accurate knowledge of the subject or matter of study, and with this we can continue our research in a more accurate way.
Real estate registry law for us can be defined as the branch of registry law that studies and regulates the advertising of real estate in the public registry.
4. NAME
It is convenient to study the names of the real estate registry law, which will make it easier to know the legal discipline studied
The real estate registry law has another denomination, which is mortgage registration law, and in any case both are not widely disseminated in Peruvian law.
5. BACKGROUND
This subject, as is certainly the background, constitutes a subject that must always be taken into account in order to know the subject studied throughout the history of law, with which you can learn its evolution, since the legal disciplines do not appear from one day to another as fully completed legal institutions, but are the product of evolution over time.
The background of real estate registry law can be divided into three classes, types or varieties that are as follows: historical, national and foreign background.
This division of the antecedents is little known in Peruvian law, therefore, we want to specify that it must be taken into account in order to allow a more current knowledge of such an important legal issue.
If the background of real estate registry law is not studied, it is clear that this important legal discipline or branch of registry law is poorly understood, which is little studied in Peruvian law.
6. HISTORICAL BACKGROUND
The historical antecedents are the antecedents existing before the appearance of the states.
Within the historical antecedents we can cite the case of Egypt, Rome, and the barbarians, mainly, the most well-known of them being ancient Roman law, however, it is not the only antecedent of this type, but there were others.
In other words, the study of the historical background serves to closely follow the evolution of real estate registry law, therefore, we should recommend its study.
7. NATIONAL BACKGROUND
The national antecedents are found in the Peruvian Civil Code of 1936, and others, within which we must pay attention not only in the legislation, but also in other sources of law, within which we can cite the jurisprudence, doctrine and executions, mainly. Within the doctrine we can cite the works of Rubén GUEVARA MANRIQUE and Bernardo PARDO MÁRQUEZ.
From a few years ago we must take into account the Gunther GONZALES BARRON treaty, which has been published in several editions, having achieved adequate dissemination in Peruvian and foreign law. This author is the maximum exponent of the Peruvian registry law, which we put on record so that his merits are recognized, not only as a treaty writer, but also another class of merits, within which we can take into account the academic merits, Because he himself has been a master and doctor of law for some years for the Pontifical Catholic University of Peru (PUCP), based in the city of Lima. This author is quite young, and in any case we must point out that he has not only studied real estate registry law, but also the general theory of registry and notary law and corporate registry law,which constitute other branches of law, which are little studied in Peruvian law.
8. FOREIGN BACKGROUND
Within the foreign record, we must cite the case of French, German, Italian, Spanish, Argentine, and Colombian registry law, among many others.
Regarding doctrine, we must cite the publications of José Manuel GARCIA GARCIA, who is an outstanding Spanish registryist, who has contributed to the development of real estate registry law, and in this sense, we must closely follow his works, which are works current Spanish and foreign law and in this sense, we hope that within a short time their works will also be published in the Peruvian territory, which would result in strong incentives for the development of real estate registry law in Peruvian law.
Another work that must be taken into account is that of ROCA SASTRE, who is also a Spanish writer, who has published several editions of an important work, having crossed borders not only on the European continent, but also on the American continent.
These authors have been internationally recognized for several years, within the legal discipline studied.
9. REAL ESTATE REGISTRY SYSTEMS
The main classification is as follows: 1) real estate registry systems for document registration, and 2) real estate registry systems for registering rights. In the former the registry qualification is weak, while in the latter the opposite occurs.
The Peruvian real estate registry system belongs to the second group of those indicated, therefore, it must qualify the titles presented to the registry in a slightly more intense way than in the first registry systems mentioned, and also the registry informs or publicizes who is the owner or owners of the unregistered properties. This mortgage system is said to be safer, but it slows down real estate traffic.
US law enshrines the real estate registry system for document registration, which results in a greater number of registered titles, and also that the procedural burden of the judiciary and the public ministry is overloaded, and the registry informs or publicizes who the possible owner or possible owners of the unregistered properties. This real estate system is said to be less secure, but has the advantage that it encourages real estate traffic.
10. MORTGAGE PRINCIPLES
Now we will study the mortgage principles, which constitutes an important topic within the branch of law studied, such as real estate registry law. This topic is studied in a more superficial way within the general theory of registry law or introduction to registry law, therefore, registry principles is a topic that must be dominated by all registrars, and in any case a different topic or perhaps Similar is the mortgage principles.
The mortgage principles or real estate registry principles are the registry principles studied and applied within the real estate registry law or mortgage registry law.
These principles are well known and determine the type or class or variety of the mortgage system, in this sense, they play a very important role in the study of the legal discipline studied.
If a student or lawyer wishes to specialize in the study of mortgage law, they must necessarily study these principles, that is, they are really very important in the study of the branch of law studied, and in any case, many authors have published on such an important mortgage registration issue.
If a student or jurist knows the mortgage principles, it is clear that he is in a notable advantage with respect to those who do not know this important subject within the mortgage registration law.
On the contrary, if those mentioned do not know those mentioned, it is evident that they are at a disadvantage, compared to those who do know, study and publish on this subject.
Different real estate registry systems enshrine different mortgage principles, and to better understand this topic on the web we have published an important article on registry principles in comparative law. Even some mortgage registration principles are consecrated with another name or with other requirements, which shows that the subject studied contains many important parts, which are not only limited to taking into account the Peruvian mortgage principles, but also the foreign mortgage principles.
We have consulted various sources of information, therefore, we can affirm that in Peruvian and foreign headquarters, it turns out to be a little studied subject, in this sense, real estate or mortgage registry law has reached little development, and in this order of ideas, the It is clear that mortgage principles have deserved little favor from the doctrine.
11. IMMATRICULATION AND ECUNDARY ACTS
The registration is the first act of the registration item and then the secondary acts follow, and within the latter we can cite the case of the transfers of domain, subdivision, accumulation, numbering, urban authorization, mortgage, antichresis, trust, leasing, declaration factory, factory finding, factory expansion, demolition, subdivision, change of nomenclature, change of district, change of urbanization, change of use, among many others.
In other words, the legal term “secondary acts” is not widely disseminated in real estate registry law, the opposite occurring in corporate registry law, which we record for the purpose of allowing a comparative law study, in both registers, with respect to term subject of study. And in any case when the institutions of comparative law are applied in doctrine it is known as doing comparative law.
12. MODIFICATIONS OF PROPERTIES
The modifications of real estate can be objective or subjective, the first being those that fall on the real estate, while the second fall on the holders of the registered rights, within which we can cite the case of the registration holders, mortgage creditors, anticrético creditors, originator of mortgage credit securitization processes, mainly.
The modifications studied at the registry headquarters are secondary acts that must be registered after registration.
These modifications with this denomination are little studied, within Peruvian law, for this reason, we study them in order to learn more about these issues, which congratulations separate us from strictly legal issues to focus on other issues which are properly doctrinal, since the law is not a set of norms, but these are only a part or source of the law.
13. PROPERTY MEASURES
The measures on real estate are of two types or classes that are the following: 1) rights insurance measures, and 2) rights limiting measures. These names are not widely disseminated in Peruvian law, therefore, we will study them in order to be up-to-date with the latest legal developments in Peruvian law.
14. INSURANCE RIGHTS MEASURES
The rights insurance measures are the embargo, demand, innovative measure, non-innovative measure, notary block, mortgage, antichresis, trust, leasing, securitization of mortgage assets, among others.
We must record that the legal term insurance measures is not widely disseminated in Peruvian law, however, we must use it in order to know that some registrable measures are known by that name in national and foreign doctrine, and in this order of ideas we recommend its study in order to be up to date with the latest news in law.
15. LIMITATION OF RIGHTS MEASURES
The measures limiting rights are those that restrict rights, within which we can cite the case of use, usufruct, habitation, concession, possession and lease.
These measures are little known in law, therefore, we should perhaps consult foreign books so that in this way we can receive foreign doctrine to Peruvian law, so that the Peruvian legal culture is in a better location, than if the indicated does not apply.
16. RECORDABLE ACTS
The subdivision is a registrable act by which a property is divided into two real estate units totally independent from each other.
16.2. INDEPENDIZATION
The independence is a registrable act by which after the subdivision the final real estate units become registered in different registry items.
16.3. ACCUMULATION
Accumulation is a registrable act by which two or more real estate units become a single real estate unit.
16.4. FACTORY
16.4.1. PREVENTIVE NOTATION FOR SUBSEQUENT INDEPENDIZATION OF AIRES
Now we will study this important registrable act, which has been little studied, both in Peruvian law and in foreign law, and in the first of the aforementioned has reached little development. For this reason, there are few sources of information on such an important recordable act, the registration of which encourages commercial traffic, for example when a department is transferred, later other transfers, mortgages, embargoes, lawsuits or litigation, sentences, notary blockades, measures can be registered. precautionary in general, among many others.
Therefore, we suggest that, in the registry, notary, judicial, administrative and consular headquarters, mainly, strong incentives be applied for the registration of registrable acts that facilitate business growth and economic growth, which should be the reason for political measures in this regard. For example, in the legal systems that belong to the mainly Germanic Roman legal family, a law must be passed that regulates in detail everything related to the registrable matter of study, which will reduce transaction costs, because they have been reduced the costs of information, that is, the economic analysis of law must be taken into account at this site, which for some is considered a method, while for others it is an autonomous legal discipline,Because it has its own field of study, there are chairs dedicated to its study, pedagogy and learning, publications, which are not only articles, but also books and treatises.
This preventive annotation is a registrable act whereby an unregistered property the airspace is annotated for subsequent transfer, that is, the next act is not only registration of sale, but can also be a donation, award, auction, exchange, contribution in favor of a legal person, mainly.
In this case the airs can be transferred as a whole, or by parts, for example it can be transferred by floors, apartments, offices, duplexes, triplexes, among many other possibilities.
The act studied is infrequent, especially in small cities, therefore, we must clarify that there is no legal impediment in this case, in this sense, it is classified in a similar way to factory declarations or factory findings, for example each Municipality within its competence establishes limits for constructions or buildings, for example, those referring to the height of the constructions.
16.4.2. INSCRIPTION
The registration of a factory declaration is a registrable act by which the constructions carried out on a land are registered.
Which not only refer to houses, but there are other assumptions, within which we can cite the case of registration of apartments, buildings, offices, stadiums, swimming pools, mainly.
For example, a house can be registered, one-story, or two-story, or three-story, however, they are not the only assumptions, but there are also other cases, which should be the subject of study in a broader way.
16.4.3. FACTORY EXPANSION
The factory expansion is a registrable act whereby the additional constructions built in a registered land on which a factory declaration already exists are registered.
For example, if a factory or one-story buildings are registered, it can be extended two more floors, with which the indicated ones will have a height of three floors.
And we must clarify that this occurs not only to increase or increase floors, but also within a floor, in this sense, if the first floor has a built area of one hundred square meters it can be expanded to three hundred square meters.
16.4.4. TOTAL DEMOLITION
Demolition is a recordable act by which the destruction of all existing buildings on a given lot is recorded, for example if a house has a three-story building, the three-story building is demolished, or if it is a ten-story building, it is demolished. the ten floors, among many other assumptions.
16.4.5. PARTIAL DEMOLITION
It constitutes a recordable act by which the destruction of part of the buildings is registered, for example if a building has three floors, only the third floor can be demolished, and there are other assumptions, within which we can cite the case that a building has a built area of one hundred square meters and twenty square meters is demolished.
16.5. AREA RECTIFICATION
Area rectification is a registrable act by which the area of a property varies registry based on a judicial or notarial process.
In Peruvian law the area rectification processes ten years ago, could only be processed in court, which unnecessarily increased the procedural burden in the courts and chambers, therefore, the notarial competence was extended to these processes, in such a way that it was sought that the studied processes be processed in a shorter period of time.
16.6. GRINDING OF LINERS
The rectification of boundaries is a registrable act by which the boundaries of a property vary registry based on a judicial or notarial process.
16.7. RECTIFICATION OF PERIMETRIC MEASURES
The rectification of perimeter measurements is a registrable act by which the perimeter measurements of a property are varied based on a judicial or notarial process.
16.8. URBAN ENABLINGS
The urban empowerment is a registrable act, by which a land is divided into parts, and some of them are streets, avenues, sidewalks, lots, parks, among many others.
16.9. PARCELATIONS
The subdivisions are registrable acts on agricultural land by which those indicated are subdivided into various parts.
16.10. NUMERATION
Numbering is the registrable act by which a number is assigned on a street, in merit to a certificate issued by the competent Municipality.
16.11. CHANGE OF NOMENCLATURE
The change of nomenclature is the registrable act by which the street name is varied.
16.12. DISTRICT CHANGE
The change of district is the registrable act, by which the district of location of the property is varied.
16.13. CHANGE OF URBANIZATION
The change of urbanization is the registrable act, by which the urbanization of the property is varied.
17. JURISPRUDENCE OF THE CONSTITUTIONAL COURT
EXP. No. 0043-2004-AI / TC
LIME
1% OF POPULATORS
OF THE DISTRICT OF MÁNCORA
JUDGMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 24th day of the month of October 2005, the Constitutional Court in plenary session, with the assistance of magistrates Alva Orlandini, President; Bardelli Lartirigoyen, Vice President; Gonzales Ojeda, García Toma, Vergara Gotelli and Landa Arroyo, pronounce the following sentence
AFFAIR
Lawsuit of unconstitutionality filed by more than 1% of the inhabitants of the District of Máncora against Municipal Ordinance No. 013-2003-MDM, published on October 10, 2003, a rule that was issued by the District Municipality of Máncora.
BACKGROUND
Lawsuit of unconstitutionality
On September 20, 2004, Mr. Juan Ramos Olaya Mogollón, accrediting more than 1% of the signatures of the residents of the District Municipality of Máncora, filed an unconstitutionality claim against Municipal Ordinance No. 013-2003-MDM, issued on October 10, 2003 by the Máncora District Municipality, for violating the property rights of various residents, and which is enshrined in articles 2.16 and 70 of the Constitution. It maintains that the Peasant Community of Máncora signed a purchase and sale agreement with the Directorate - Departmental Agrarian Unit II - Piura on October 3, 1975, with respect to an area of 26,226 hectares. 1,225 meters, the same as those found in the districts of El Alto, Los Órganos, Máncora and Tumbes; that of said area, 7,285.00 Hás correspond to the district of Máncora, as can be seen from Property Title No. 0429 of June 24, 1991, which is registered in File No. 28467 of the Sullana Real Property Registry; and that in such an area is the area declared as urban and of urban expansion by the one located through the contested ordinance, the same that is located between kilometer 1,164 of the old Panamericana Norte -sector beach- and kilometer 1,168 that It is equivalent to the Quebrada Fernández to the north of the district, up to the place called Punta Peña Mala or Peña Verde to the south of it, comprising a part of the property called Máncora of approximately 35 hectares, about which the site and the Municipality have shown great interest. Talara Provincial.No. 0429 of June 24, 1991, which is registered in Record No. 28467 of the Sullana Real Property Registry; and that in such an area is the area declared as urban and of urban expansion by the one located through the contested ordinance, the same that is located between kilometer 1,164 of the old Panamericana Norte -sector beach- and kilometer 1,168 that It is equivalent to the Quebrada Fernández to the north of the district, up to the place called Punta Peña Mala or Peña Verde to the south of it, comprising a part of the property called Máncora of approximately 35 hectares, about which the site and the Municipality have shown great interest. Talara Provincial.No. 0429 of June 24, 1991, which is registered in Record No. 28467 of the Sullana Real Property Registry; and that in such an area is the area declared as urban and of urban expansion by the one located through the contested ordinance, the same that is located between kilometer 1,164 of the old Panamericana Norte -sector beach- and kilometer 1,168 that It is equivalent to the Quebrada Fernández to the north of the district, up to the place called Punta Peña Mala or Peña Verde to the south of it, comprising a part of the property called Máncora of approximately 35 hectares, about which the site and the Municipality have shown great interest. Talara Provincial.and that in such an area is the area declared as urban and of urban expansion by the one located through the contested ordinance, the same that is located between kilometer 1,164 of the old Panamericana Norte -sector beach- and kilometer 1,168 that It is equivalent to the Quebrada Fernández to the north of the district, up to the place called Punta Peña Mala or Peña Verde to the south of it, comprising a part of the property called Máncora of approximately 35 hectares, about which the site and the Municipality have shown great interest. Talara Provincial.and that in such an area is the area declared as urban and of urban expansion by the one located through the contested ordinance, the same that is located between kilometer 1,164 of the old Panamericana Norte -sector beach- and kilometer 1,168 that It is equivalent to the Quebrada Fernández to the north of the district, up to the place called Punta Peña Mala or Peña Verde to the south of it, comprising a part of the property called Máncora of approximately 35 hectares, about which the site and the Municipality have shown great interest. Talara Provincial.168 which is equivalent to the Quebrada Fernández to the north of the district, to the place called Punta Peña Mala or Peña Verde to the south of it, comprising a part of the property called Máncora of approximately 35 hectares, about which the site and the Provincial Municipality of Talara.168 which is equivalent to the Quebrada Fernández to the north of the district, to the place called Punta Peña Mala or Peña Verde to the south of it, comprising a part of the property called Máncora of approximately 35 hectares, about which the site and the Provincial Municipality of Talara.
He also refers that the residents have the quality of qualified community members of the Peasant Community of Máncora and are suffragant citizens; that the summoned tried through a judicial process to challenge the Administrative Resolution and the registration entries of the Public Registries of Piura - today Public Registries of Sullana - regarding their property, which was dismissed by the Civil Court of Sullana, through resolution This was confirmed by the Sullana Mixed Civil Chamber of the Superior Court of Justice of Piura. On the other hand, he states that in due course he spoke with the summons for a free transfer of the area, and that, when no agreement was reached, the contested ordinance was issued, which violates both the Constitution and the Organic Law of Municipalities, in accordance with the reasons detailed below:
to. Article 9.2 of Law No. 27972, Organic of Municipalities (LOM), establishes that the Provincial Municipality can approve the Territorial Conditioning Plan, a norm that must be agreed with article 79.1.1, 79.1.2 and 79.3. one. The aforementioned ordinance does not refer to the existence of an Urban Development Plan at the provincial level, but rather that it is necessary to implement the instruments that allow for the orderly planning of the development and growth of the district, such as the master plan, urban expansion plan and the instruments mentioned by the Law of Urban Habilitations; on the other hand, article 89 of the LOM states that the lands that are liable to become urban can only be used for the purposes provided for in the zoning approved by the Provincial Municipality,the regulatory plans and the National Construction Regulations, an article that must be agreed with article 2 of Law No. 26878, the General Law of Urban Authorizations, which does not provide for this competence in favor of the District Municipalities.
b. The ordinance violates the plaintiffs' right to private property, for which reason it is protected by Law No. 26845, Law of Titling of Lands of the Peasant Communities of the Coast.
c. Regarding the appointment made of Law No. 26856, the Beach Law, it is highlighted that in its 2nd article it makes an exclusion regarding the privately owned land acquired at the effective date of the aforementioned norm, that is, before 1997, when the lands of the Peasant Community of Máncora were acquired in 1997.
d. The ordinance also states that the lands of the Peasant Community of Máncora were illegally registered despite the existence of legal norms that state that the existing population centers were not the peasant communities until March 1996, an incorrect statement, since the reference it is the month of October 1993; and said error occurs because in 1997 the summons initiated a judicial process demanding the nullity of the legal act contained in Directorial Resolution No. 012-75DZAI of September 16, 1975, as well as the nullity of the contract of sale of the lands of the Peasant Community of Máncora. The ordinance also establishes that no property located within the urban area of the Máncora district is owned by the Campesino Community by imperative mandate of Law No. 26845,rule that is not applicable to the present case, since at the date of publication the Community already had the property title granted by the Piura Regional Agrarian Directorate.
It concludes by arguing that no ordinance can grant or violate private property rights.
Answering the demand
The summoned responds to the demand requesting that it be declared unfounded, in light of the arguments that are detailed below:
to. On January 24, 1982, the State issued Supreme Resolution No. 019-82-ITI / ITUR, declaring the national tourist reserve zone between that between the Pan-American Highway North and the coastal beaches. corresponding to the Province of Talara of the Department of Piura. With this device, the central government preserves, conserves and guarantees the maintenance of the inventoried and evaluated tourist resources, reserving the coastal areas included within the aforementioned limits as public property, which includes those of the Mancora District.
b. With the validity of Law No. 23853, powers are delegated to local governments so that they can dispose of the riverside areas destined for tourism investment projects, provisions that were regulated by Law No. 26754 that suspends the adjudication of properties located in areas adjacent to beaches; On the other hand, Law No. 26856 declared that the coastal beaches are goods for public use, inalienable and imprescriptible, also establishing areas of restricted domain; for its part, Law No. 26879, amended Law No. 26856, while Supreme Decree No. 009-97-PCM specifies that Law No. 26475 must be applied to the pending procedures for the authorization of properties located in areas adjacent to beaches.
c. Law No. 26846, Land Titling Law of Peasant Communities, establishes, in the Fourth Complementary and Final Provision, the modification to article 2.bº of Law No. 24657, in the sense that it is not community lands are those that are occupied by populated centers or human settlements as of October 31, 1993, except those on which actions of vindication by peasant communities had been filed before that date, and the pertinent authorities must formalize and to register the lands occupied by human settlements, in order to assign and register the individual ownership of the lots to their occupants; likewise, the lands of populated centers that are formed, directed and governed by the peasant community itself are excepted.
d. Although the Peasant Community claims to be the owner of the property detailed in the lawsuit, it must be clarified that the area of land that it had since 1979 is not the same as the area it illegally claims to have, since although it is true that the formalization of its title occurs on year 1991, the area it occupied dates back to 1979, an area in which that left by the withdrawal of the sea in 1983 as a consequence of the El Niño Natural Phenomenon was not included; Consequently, the Peasant Community holds a title that does not correspond to it, and since its limit continues to be the Pacific Ocean, it surprises the registry and judicial authorities with the fact that it owns an area of land not registered in its favor.
and. The natural phenomenon modified the plans of the community in 1983, so it cannot be argued that this area is their property –about 700 meters–, especially when it has been established due to the exposed antecedents that nowhere has it been affected. their property, but the contested ordinance is aimed at complying with the powers and functions that Law No. 27972 has conferred on local governments, in its article 79.3º.
F. It is in merit of the aforementioned legal norms that land use has been regulated in order that the adjudications made by the owners, as in the case of the Peasant Community of Máncora, respect the norms, but their limitation is not limited. right to property as wrongly manifested.
g. The ordinance seeks to end the community's abuse of adjudicating land in riverside areas and in the restriction strip of the 200-meter high-tide line, causing chaos and disorder in the urban area of Máncora, being the function of the municipality that of sanctioning those who cause disorder; In this sense, attach photographs showing the lifting of buildings within 50 meters of the high tide as well as 200 meters from the restricted area established by the Beach Law, among other considerations.
After hearing the case on January 30, 2004, and after hearing the reports of the parties, this case is in a state to be resolved.
FOUNDATIONS
1. On page 17 of the cars, the Municipal Ordinance No. 013-2003-MDM, published on October 9, 2003, is published in the official newspaper El Peruano, whose most relevant content, among other provisions, is as detailed then:
to. Article One: Declares as an urban area the area between the Quebrada Fernández in the north of the district to the place called Punta Peña Mala or Peña Verde, in the south, establishing as one of the limits the projection of an imaginary line taking as reference the old highway Pan American.
b. Second Article: Declares the intangibility of the riparian zone in recognition of the provisions of Law No. 26856, specifying that the riparian zone comprises the 250 meters adjacent to the highest tide line; in the same way, it declares of public domain, the areas that are within the urban area of Máncora and that do not have private owners, as well as the intangibility of the public domain area that acquires such quality through this standard. It also declares that no property located within the urban area of the District of Máncora is owned by the Peasant Community of Máncora, by imperative mandate of Law No. 26845.
c. Third Article: It prohibits the construction of works on land that is not privately owned and that through this resolution (sic) are declared intangible, under penalty of total demolition of what was built without prior administrative procedure, and whose cost will be borne by the infringer, in addition to a fine equivalent to 2 UIT.
d. Article Four: Sanctions those who invade state-owned areas and who have been declared intangible by this ordinance, with a fine equivalent to 1 ITU, without prejudice to the demolition and corresponding criminal complaint; in the same way, it establishes the sanction for the promoters of the invasions, or people or institutions that under any modality encourage the invasion of land declared intangible.
2. In principle, and with a view to the request, it must be clearly established that in a concentrated control process, the protection of fundamental rights does not occur in the terms or with the scope foreseen for the constitutional processes of freedom, given that In cases such as the present case, control is carried out by confronting the contested norm directly with the Constitution, in order to determine whether it collides with the content of the Fundamental Charter, even with regard to constitutional rights.
3. Consequently, it is not necessary to establish whether the right of the plaintiffs is affected by the challenged norm, much less issue a statement on the legality and validity of the documents with which they seek to prove the property rights they allege, such as:
to. The Purchase and Sale Agreement signed on October 13, 1975 between the General Directorate of Agrarian Reform and Rural Settlement of the Ministry of Agriculture and 45 successful farmers regarding the property called Máncora, which has an extension of 26,226 hrs 1,225 m2 (f. 26).
b. Directorial Resolution No. 421-96-RG-CTAR-DRA-P dated September 16, issued by the Agrarian Directorate of the Grau Region, by which, due to the observation made by the Office of Public Registries, the information from the Rural Cadastre Office regarding the correct location of the aforementioned property is approved (page 29).
c. The Property Title of the Property under comment, issued by the Regional Secretariat for Productive and Extractive Affairs of the Piura Region, dated June 24, 1991 (f. 30).
d. The content of Registration Card No. 10099 (f. 31).
This, in any case, will be a matter of the processes that the interested parties initiate before the ordinary jurisdictional authorities, who are responsible for assessing and ruling on the matter, if applicable.
4. From Ordinance No. 013-2003-MDM it is appreciated that the content of article 1 does not collide with the Constitution, given that the declaration of urban area of the area included within the boundaries that it establishes is in accordance with the foreseen competence in article 195.6 of the Constitution, regarding urban and rural development planning of its constituency, including zoning, urban planning and territorial conditioning, a competence that has also been the subject of development by article 72 of Law No. 27972, Organic of Municipalities.
5. However, this does not occur with regard to the content of the second, third and fourth articles of the ordinance under analysis, as explained below:
to. Regarding the second article, the part that declares the intangibility of the riverside zone of the Máncora district - for which it is based on Law No. 26856 - must be distinguished from that other part that declares the intangibility of the area of terrain detailed in the first article.
Regarding the area declared intangible, the ordinance establishes that it includes the 250 meters adjacent to the highest tide area, while Law No. 26856 provides in its 1st article that “The beaches of the Republic's coast are property of public use, inalienable and imprescriptible. Beach is understood as the area where the coast is presented as an open flat with a slight slope towards the sea and formed of sand or stone, boulder or sand mixed with mud plus a strip not less than 50 meters wide parallel to the discharge line. tide"; while article 2 states that "The 200-meter strip located after the 50-meter strip described in the previous article is considered a restricted domain area, provided there is geographic continuity throughout the area." Therefore,the rule to which the ordinance refers considers the 50 meter strip as inalienable and imprescriptible, since the 200 meters that follow it are of restricted domain, provided that within said area there are no privately owned land, in accordance It is established in the third paragraph of the aforementioned article 2 of Law No. 26856.
Although the Constitution does not establish or define what assets are in the public domain and use, article 73 of the same states that “Assets in the public domain are inalienable and imprescriptible. Assets for public use can be granted to individuals in accordance with the law, for their economic use ”; therefore, it is up to the national legislator to regulate this matter, which in the case of the coastal beaches has been reflected in Law No. 26856; Said competence, by the way, cannot be exercised by a municipal corporation, since it is limited to the powers and competences that the Constitution and the pertinent Organic Law establish.
Therefore, if there is already a general rule that regulates the use and enjoyment of the beaches of the Peruvian coast, through an ordinance it is not possible to claim to establish legislation that, under the pretext of ratifying or complementing, introduces a distortion that not only affects the legal system, by pretending to use a competence that does not correspond to it, but also modifies what the competent authority has established on the matter, since Law No. 26856 at no time establishes that the intangible area of the coastal beaches have an extension of 250 meters, as has been observed in the preceding paragraphs. From which it appears that the summons, by acting in contravention of an ordinary general rule, has indirectly affected the jurisdictional system provided for in the Constitution,since the original legislator to implement the legislative development that the constitutional text requires is the Congress of the Republic. Consequently, said extreme is unconstitutional.
On the other hand, and in what corresponds to the declaration of intangibility of the land area detailed in the first article of the contested ordinance - second part of article 2 -, as it has already been exposed, this is not an attribution that in no way can be exercised by the summoned; Furthermore, the powers of local and regional governments are exhaustively provided for in the Constitution –article 195º– and in the Organic Law of Municipalities –articles 73º, 79º and following of Law Nº 27972–, the same that do not provide that the summons is competent to declare zones or intangible areas, nor can it be deduced from the aforementioned powers that it is necessary for local governments, implicitly, to be invested with said attribution,Because without it, it would not be possible for them to carry out the tasks and functions that correspond to them.
The content of article 3 of the contested ordinance is unconstitutional in the part that prohibits the construction of civil works on land "that through this resolution are declared intangible", for the reasons stated above; since the declaration of intangibility is not a competence that can be exercised by local governments.
The same occurs in the case of article 4, to the extent that it establishes sanctions for invaders of areas declared intangible.
In any case, the content of articles 3 and 4 may remain, as long as the aforementioned references are removed.
6. As it has been exposed in the foundations of the present sentence, in the present process it is not appropriate to determine the ownership of the rights of the plaintiffs; in the same way, and to the extent that there are documents proving the right to property that the plaintiffs allege - which in no way are valued in the present process - they cannot be affected by the administrative authority, unless it is determined that the areas included in article 1 of the previously cited ordinance are not privately owned, since in the event that they are in the private domain, they may only be made available by the administration if the procedure provided in article 70 is followed of the Constitution, and should also be taken into account in the case of the Peasant Community of Máncora,the provisions of articles 88 and 89 of the Fundamental Charter.
For these reasons, the Constitutional Court, with the authority conferred by the Political Constitution of Peru
In a registry item of the land registry, the first seat of ownership is not always registration, but some opportunities are for independence, when the property registered in the registry item has become independent from a parent item, for example in the case of urban allotments and the same occurs in the case of parcels of rustic land.
Paragraph d) of article 292 of the TUO of the Peruvian Securities Market Law, supreme decree 093-2002-EF published on 06-15-2002, indicates that for the purposes of the regulations regarding securitization processes contained in the aforementioned law, originator is: "The person in the interest of whom an exclusive purpose patrimony is formed and who is obliged to transfer the assets that will comprise it." This norm originates from article 292 of the Peruvian Securities Market Law, Legislative Decree 861, published on 10-21-96, which is the first norm that regulates the securitization of assets or securitization in Peruvian law. That is, legislative decree 775 did not regulate this modern contract, known to some as a business contract.
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