Historical literature has approached from different angles the incidence of real rights in the development of Cuban colonial society from the first moments. The system of composition, distribution and mercedaciones of rustic and urban estates of which the Ordinances of Alonso de Cáceres (1574) is a perfect example, shows how to be the holder of a grant on a herd, a corral or a ranch involved, at least, a socially considered relationship of private benefit and duty to the community. But there also emerged the typical conflicts of indeterminacy of real estate leading to the demarcation process, or those of lack of documentary title, or those derived from urban regulations and the vicinity of properties; or those inherent in identification, acquisition,transmission or abandonment of movable goods of great importance such as livestock (livestock, draft animals, transport animals and slaves, equated to the condition of things in commerce).
The increase in commercial life and the island population since the late sixteenth century and throughout the seventeenth and eighteenth century, implied the abundant use of civil law institutions such as the census in all its variants, legal and voluntary easements, the joint ownership by quotas and the community of goods, the prohibitions to dispose; and in other cases, as the value of the assets of some population centers settled in the towns and cities increased, the manufacture and acquisition of ships and the guarantees for maritime trade emerged, the construction of large palaces with their consequent construction and urban characteristics; Businesses grew with carriages, works of art, cargoes of merchandise; the first ecclesiastical mayorazgos and connections appeared,and the levies and charges imposed on real estate by acts inter vivos or mortis causa multiplied. Within the dynamics of the time, the first jurisdictional dominions of Cuban colonial history were granted in the 18th century: immovable property manifested its basic character for political power, retardatarily pointing to the private powers of an owner over its assets with the powers State-owned publics.Targeting the private powers of an owner over his assets with the state's own public powers.Targeting the private powers of an owner over his assets with the state's own public powers.
The idea that surface law arose in Rome has been widely spread. This is how its origin is associated with times of the Roman Republic, when the state granted land owned by it for individuals to build on public land the so-called tabernae, which were small businesses established in the streets or squares, in exchange for the payment of a fee newspaper (solarium). Its beginning is closely linked with the ager publicus. Citizens acquired a special right over what was built on someone else's estate, defined as a real, disposable and transferable right.
At the end of the republic and, in view of the development achieved by Rome, it was necessary to promote and promote buildings and plantations due to the existing housing deficit, all of which led to landowners and wealthy citizens being able to grant other Roman citizens permission to build on their premises in exchange for a periodic fee. 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),and then it was expanded with the injunction unde vi, with the petition petitionia utilis petitio nec, with the recognition of easements (utilis confessoria), and with the claim for freedom of property (denial).
The Roman surface law can be characterized taking into account the features expressed by JERÓNIMO GONZALEZ2 indicating that its object was a construction of any kind, as long as it was not affected by transitory needs.
It could be born by onerous or gratuitous title, by inter-alive acts or mortis causa, including some assumptions of legacy and in other cases the prescription. The grantor had to own the land and have free disposal of it. Although many considered it a lease, its content really exceeds the canons of the same, so it rather presents the nature of an unnamed contract, which suffers the consequences of the theory of the title and the way, because the tradition should be carried out. He could dispose of the right in any way. It could be extinguished by the passage of time, by compliance with the agreed resolution condition and declaration of expiration made by the owner, by consolidation, by resignation, by resolution, by disappearance of the property, by death of the landowner or his resignation and by prescription.
The Right of Surface is a real right because it attributes to its owner a direct power and erga omnes over the thing to its owner. It can be framed within the classic classification of real rights in those of enjoyment, with its own autonomy, with manifest differences of usufruct.
It is an in re aliena right, by means of which the owner of the surface is assisted by the right to own and maintain a building on someone else's land, and thereby enjoy on this object all the faculties of other real rights of enjoyment; although with the typical features of the surface, which are among others to obtain the property of the built.
As for the duration of the surface right, it is admitted that it may be temporary or perpetual. The holders in perpetuity are too similar to the owners and it is proposed that between the superficial and the grantor there will be only one economic difference: the canon. This vision, without a doubt, had Resolution 2/91 of the National Housing Institute regulating Perpetual Surface Law, which is surely a type of social surface, that is, that special surface to remedy the housing shortage of the classes needy.
Reversal does not operate here, which is a palpable practical effect. However, in defining its perpetual character in its Second Resolution, the aforementioned resolution limits it to the ability of the surface owner to re-manufacture if the building is destroyed19.
The Cuban Civil Code establishes, in its article 222.1 and 2, that it can be granted for a term not greater than 50 years and that it can be extended for half the original term, by request made by the owner before the expiration date.. It is not a renewal as a right of preference that supposes an extinction and a new constitution, but simply a preservation of the pre-existing Surface Law. It would remain to define in the constitutive title how this determination would be documented.
The special legislation in real estate matters regulated the Real Right of Surface. Thus, the General Housing Law of 1984 (article 39) and its complement can be cited in Resolution No. 1 of January 6, 1987 of the President of the National Housing Institute (repealed), they address the perpetual modality of the surface and, according to VICENTE RAPA, the institute differed from the emphyteutic censuses of the repealed Spanish Civil Code in that it only affects the soil and in that its owner could not redeem it and neither acquire full ownership of the land by paying its value.
Property and economy were socially, legally and economically linked, the former serving as an instrument for regulating the social relations of appropriation, reproduction and exploitation of wealth. We can conclude, therefore, that the Surface Law is the real right by means of which a (superficial) subject grants to another (superficial) the right to build or maintain what is built, on the ground of his property, with perpetual or temporary character, becoming the surface owner of the built, regardless of land ownership.
