AN INTRODUCTION TO THE ENGLISH AND SPANISH PROPERTY LAW FROM A COMPARATIVE PERSPECTIVE
Juan Pablo Murga Fernández
Investigador contratado postdoctoral de Derecho Civil, Universidad de Sevilla
Doctor en Derecho por la Universidad de Bolonia (Italia)
Abstract. The present paper aims to give a general overview of English Property Law, giving an additional comparative point of view from the Spanish legal system. English property law will be presented following the structure and categories generally used by civil lawyers and in each of the points there will be a reference to the most similar legal figure belonging to the Spanish legal system.
Key words. English property law. Real property. Comparative law.
1. INTRODUCTORY REMARKS
The present paper aims to give a general overview of English Property Law, giving an additional comparative point of view from the Spanish legal system. English property law will be presented following the structure and categories generally used by civil lawyers and in each of the points which will be analysed there will be a reference to the most similar figures belonging to the Spanish legal system (giving the Spanish terminology in each case).
In other words, the main focus of the paper will be the description of the basis of English Property Law although the reference to the Spanish legal system will be continuous as to gain a complete understanding of the topic from the civil-Spanish lawyers perspective. Some of features which will be analysed do not have an exact equivalent in Spanish Law so it will be only the most similar Spanish legal institution which will be taken into account in those cases.
It is important to note that it will be the so-called “real property” the one in which the paper will mainly focus, that is the property rights dealing with immovables, due to its major importance from a dogmatic and economical point of view.
2. STARTING POINT: THE COMPLEXITY OF ENGLISH PROPERTY LAW
As Megarry & Wade affirm, English property law has tended to have an unenviable reputation for its complexity1 . The main reason of this complexity is that English property law (namely, land law or real property) contains structures, concepts and language that date back to the middle ages. There has never been a codification of the law in England similar to the great civil codes on the Continent such as the Spanish civil code 1889. The nearest that English law has come to a codification of the land law is in the greats reforms of 1925, which in any case did not constitute a complete code, breaking with the past and laying down a new, self-contained set of legal rules and principles for land ownership and transactions relating to land. Instead, the 1925 legislation, which is still the basis of the current modern land law in England, reformed and developed the law as it then stood. And even the most recent reforms of land law, the Land Registration Act 2002, has not swept away the old law but can be fully understood only by reference to it 2.
The following points of this paper will analyse the concept of property law, the main types of rights which qualify as proprietary, the list of proprietary rights in respect of land, the ways in which they are created and transferred, and, finally, the ways in which they may come to an end. It must be noted that it is unusual in English law to treat these topics together and following this order, something which is proper of a civilian lawyer. This paper will not deal due to its introductory approach with the law of “trusts”, nor will there be any reference to the protection of property rights, as in English law this is principally achieved through the law of “torts”. As it was already announced the paper tends to give a general overview of English real property for the Spanish lawyer, therefore following the typical continental structures and naming out the Spanish figures which are most similar in each case 3.
3. WHAT IS THE LAW OF PROPERTY? MAIN TYPES OF PROPERTY RIGHTS
The law of property, following Prof. Swadling can be defined as “that area of law concerned with certain types of rights between persons with respect to things, those things being either land or goods, and those rights being proprietary rather than personal” 4. A definition that can be shared with the Spanish perspective of what property law is. And as in the Spanish legal system, the most basic distinction that can be made with respect to the “patrimonial” rights (with economic content) is that one that distinguishes between the property rights (known as “derechos reales” in Spain) and the personal rights (known as “derechos personales o de crédito” in the Spanish legal system) 5. The sign of a property right is the ability to bind strangers to it. Rights in respect of things which do not bind third parties are personal rights 6. As Lord Wilberforce said 7:
“Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability”.
Taking into account this basic distinction the next thing that must be noted is that in English property law not all rights in respect of things have the consideration of property rights. There are rights in respect to things which are not binding to third parties and therefore are defined as personal rights with respect to things. This last distinction can bee seen in Hill v Tupper (1863) 2 H & C 121. This case demonstrates a right that over thing that was in fact personal. A company with a fee simple title (a property right –equivalent with what in Spain would be considered as “derecho de propiedad” as it will be seen with detail) to a canal and its banks granted a lease (another property right –we will see that there is not an exact equivalent to this proprietary right in Spanish law; although it could be defined as a “suerte de arrendamiento de naturaleza real”-) of premises on its banks to the claimant, a boat proprietor. The contract stated that the claimant enjoyed “the sole and exclusive right or liberty to put or use boats on the said canal, and let the same for hire for the purpose of pleasure only”. The defendant, the landlord of an inn next to the canal, put his own boats on the canal and the claimant sued him for interfering with his “exclusive right”. He failed. Pollock CB said that the grant operated merely as a licence or covenant on the part of the grantors, and was binding on them as between themselves and the grantee, but that it gave the grantee no right to defend that right against anyone else8 .
In Spanish law all rights with respect to things are considered property rights, although of course personal rights can relate their content to a single thing (“derecho de crédito cuyo contenido opera sobre una determiada cosa”).
The question which immediately arises to this respect is how is it possible to tell the difference between a proprietary right and a personal right? The answer is that in English law, as in all developed legal systems, a numerus clausus of property rights. Looking to Hill v Tupper again, Pollock CB, stated in response to the argument for creating ‘the exclusive right to put pleasure boats on a canal’, said:
“The answer is, that the law will not allow it… A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property; but he must be content to accept the estate and the right to dispose of it subject to the law as settled by decisions or controlled by Act of Parliament. A grantor may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a new incident, so as to enable the grantee to sue in his own name for an infringement of such a limited right as is now claimed”9 .
In the Spanish legal system the numerus clausus / numerus apertus matter in the creation of property rights is greatly discussed. The majority of the Spanish authors consider that it is a numerus apertus the system which is followed in Spain, namely due to the essential principle of private autonomy which leads to the consideration that any one can impose whatever right they wish with respect to the thing which they own. However, there is not a definite position up to this extent 10.
English law, as well as Spanish law, also distinguishes between real property (what in Spanish law is know by “propiedad inmobiliaria”) and personal property (know as “propiedad mobiliaria” in Spanish law)11 . Previously, the division was based on the rules of succession: traditionally on death, real property passed directly to the heir or legatee, but personal property passed to the executors of the will for distribution 12. Today, the distinction is mostly historic, although it is still important due to the number of interests that can only exist under one type of real property, land.
The differences are explained by the different responses of the legal system to interferences with real and personal property rights. If real property rights are interfered with, the courts will order the return of the property. Conversely if a personal right is interfered with, the court can only order a dispossessor to make a money payment.
This does not mean that personal property rights are unimportant. The trademark of a property right is its sphere of enforceability, not the method by which it is enforced. For this reason, in English law the distinction between personal a real property has nothing to do with the differentiation between the continental category of rights in rem and rights in personam13.
In the Spanish legal system the differentiation between real and personal property has only be given by the nature of the object of the proprietary right: chattels for personal property and land/immovables for the real property. Both kind of proprietary rights have always counted with “real actions”, therefore the distinction has not had the same historical importance as it has in English law.
4. LIST OF PROPERTY RIGHTS IN RESPECT OF LAND
English authors when referring to the different types of proprietary rights usually start by making two sorts of distinctions: the one that distinguishes between state and interests in land; and that other that the differentiates between legal and equitable rights.
In the first case, “estates” are considered as a right to use and control land, being tantamount to absolute ownership, but with the important difference that the estate will define the time for which their ownership lasts. Whereas “interests” are generally a right that one person enjoys over land belonging to someone else (a right in the estate of another person) 14. It would be a similar differentiation as the one made in Spanish law between “derecho real pleno” (estate) and “derecho real limitado” (“interest”).
Furthermore, it is also common the distinction between legal and equitable rights. A differentiation which responds to historical reasons, based on the type of court in which a claimant might obtain a remedy against a defendant for the unlawful denial of the claimant’s right over the defendant’s land. The King’s Court (or court of common law) would grant a remedy to a claimant who could establish a case at law, usually on proof of certain formalities and on pleading a specified form of action. These common law courts were, however, fairly inflexible in their approach to legal problems and would often deny a remedy to a deserving claimant simply because the proper formalities had not been observed. Consequently, the Chancellors Court (where Equity was created) began to mitigate the harshness of the common law by giving and “equitable remedy” to a deserving claimant, even in the absence of the proper formalities required for a remedy at law. Since the Judicature Act 1875, all courts have been empowered to apply rules of law and rules of equity, and clashes of jurisdiction no longer take place. However, for the present this historical diversity still echoes in the modern law15 . The distinction up to 1926 (before the 1925 property legislation) was that this could determine the property rights effect on third parties 16, but today these principles have been mainly replaced to a very considerable extent by requirements of registration 17.
According to the basic approach to English property law which characterises this paper, the referred distinctions (estate/interest; legal/equitable rights) will be left aside. Therefore, we will give a general list of the main property rights which exist in English law in respect of land.
Nevertheless it must also be noted that one of main contributions of equity in the grounds of property law is the creation of “trusts” which will not be deeply analysed in this paper -inexistent legal figure in the Spanish legal system as it occurs in most civil law legal systems-. In English law and systems derived from it, as Dixon outlines, it is perfectly possible for a single piece of property to be owned by two or more people at the same time. This is not simply that two people may share ownership; it is, rather, that two or more people may have a different quality of ownership over the same property at the same time. In other words, one person may have the legal title to the property, and another may have the equitable title. So, for land, it is possible to have a legal owner and an equitable owner: one with legal rights of ownership; the other with equitable rights. Necessarily, these two owners must stand in a relationship to each other and this relationship is known as trust. This is what is meant when it is said that A holds land on trust for B: A is the legal owner (and trustee), and B is the equitable owner (and beneficiary). The trust that exists between A and B can take many forms, and different rights and duties can be imposed on A (the trustee) for the benefit of B (the beneficiary), depending on how the trust was established and any relevant statutory provisions 18. However, as we say, trusts are not going to be analysed in this paper as its complete study would override the limits of our basic approach: give an introductory overview of English property law.
4.2. List of real property rights
The main property rights in respect of land are the ones that follow.
a) Right to exclusive possession forever (‘fee simple absolute in possession’ or ‘freehold’)
The most comprehensive right known to English law in respect of land is a right to exclusive possession forever, known technically as the “fee simple absolute in possession” or a “freehold”. In English law there is not such thing as “ownership” or simple “property” as there is in civil law legal systems and namely in Spanish law. However, the most similar figure to that is precisely the freehold which we here analyse.
As Prof. Swadling underlines, the word “fee” denotes an estate of inheritance, that the right will descend to the grantee’s heirs; the word “simple” implies that these heirs are general rather than restricted to a special class; the word “absolute” remarks that the estate will not come to an end on the happening of some specified event; and the word “in possession” signifies that the grantee has a right to immediate possession of the land 19.
Therefore, the fee simple is freely transferable during the life of the estate owner (i. e. by gift or sale), or on his death (i. e. by will or under the rules of intestate succession when there is no will), and each new estate owner is the entitled to enjoy the land for the duration of his life and that of his heirs and successors. Consequently, although the fee simple is, at its legal root, a description of ownership for a limited duration (as are all estates) the way in which the duration of the estate is defined and its free alienability means that, in most respects, the fee simple is equivalent to permanent ownership of the land by the person who is currently estate owner20 .
As it has been already noted, the most similar figure to a “freehold” in Spanish law would be what is simply know as “property”, been the most absolute property right with respect to land and goods as defined by Article 348 of the Spanish Civil Code. It is important to note that the absolute nature of this right must be mitigated by its the so-called “social function” defined in Article 33 of the Spanish Constitution 21. Curiously, although in English law there is not such thing as “ownership”, freeholds have a wider content in terms of their limits then what in Spain is referred as “property”. An example of this can be seen in Bocardo SA v Star Energy UK Onshore Ltd  UKSC 35,  1 AC 380, where it can be seen that in the English legal system the holder of a fee simple has the right to the space below the surface without any limits: all mines and minerals belong to him, except gold and silver, which belong to the Crown22 . Ownership in Spanish law does not have such an extent with respect to the underground.
b) Leases of land
A lease of land is also a property right. This is a right to exclusive possession of land for a finite period. No limits are imposed for the maximum length for a lease. Therefore it is possible to have a lease for 3,000 or even 3,000,000 years. But there must be some limit, and that limit must be certain.
Leases can only be granted by persons who themselves have a right to the exclusive possession of land. That includes a person with both a fee simple estate, or a lease: in the first case the person granting the lease is referred to as the landlord, whereas if the lease is granted by a lease, it is known as a sub-lease. There is no limit on the number of sub-leases which may be created23 .
The substantive requirements of a lease were said by Lord Templeman in Street v Mountford24: “To constitute a tenancy the occupier must be granted exclusive possession for a fixed periodic term certain in consideration of a premium or periodical payments”.
Therefore, three are the basic requirements of any lease: exclusive possession, the certainty of term, and the existence of a premium or periodical payment. Any arrangement which does not confer a right to exclusive possession of land will not qualify as a lease. Additionally, the lease must have a fixed term: there is no limit on how long the term of a lease might be, but there must be some limit and that limit must be certain. Finally, as Lord Templeman outlined, the third substantive requirement of any lease is the payment of a premium or rent (there is not such thing as a free lease).
With respect to Spanish law, leases quite often are translated as “arrendamientos”, although being similar figures the equivalence is not precise. In the Spanish legal system “arrendamientos” are considered (although it is discussed) as personal rights and not property rights. The most similar figure on the grounds of property rights would be what is known as “usufructo”, that is, a limited property right which gives the right to possess and enjoy the property of a third party (“nudo propietario”). Although even in this case there is not an exact equivalence between the figures; a proof of this is the existence of another property right known in English law which will be later analysed and is also similar to the Spanish “usufructo” which would be the “profits à prendre”.
An easement is a right one owner of a fee simple or lease of land has over the land belonging to someone else. Typical easements are rights of way, rights of drainage, rights of light, and so on. Prof. Swadling states the main requirements that a property right must fulfil as to be considered an easement are the ones that follow: First, there must be a dominant and servient tenement. Second, the easement must accommodate the dominant tenement. Third, the rights to possession of the dominant and servient tenements must be in different people. Fourth, the content of the right must be certain. Fifth, no positive obligations may be imposed on the possessor of the servient tenement. And sixth, though subject to limited exceptions, the right must not be negative but positive 25, entitling its holder to do something on the servient tenement 26.
The most similar figure to easements in Spanish law are certainly what are known as “servidumbres”, a limited property right in which the owner of a piece of land obtains a certain benefit from a different land belonging to another person (this is the classical definition given by Article 530 of the Spanish Civil Code with respect to the most important kind of “servidumbre”27, that is, the “servidumbre predial”).
d) Profits à Prendre
A profit differs from an easement in that where an easement is a right to do something on land belonging to another, a profit à prendre, is a right to take something from the land of another. Examples are minerals or crops, or the wild animals existing on it. As Prof. Swadling affirms, profits are quite ancient rights, and their content reflects an agrarian rather than an industrial economy 28.
This property right also reminds to the Spanish “usufructo” in all those cases in which it confers a right to obtain crops or minerals from land. As it can be seen, it is really difficult when not impossible to find exact equivalent legal figures between two legal systems belonging to very different traditions such as civil and common law ones.
e) Restrictive covenants
These are promises by a fee simple holder to his neighbours not to do something on the land. The genesis of the restrictive covenant is the decision in is Tulk v Moxhay (1848) 2 Ph 774. In this case, one fee simple title holder promised not to build on his land. This promise was held binding on a successor in title to the promisor.
It is a creation of the courts of equity answering to the question of whether a party should be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, with notice of which he purchased. Lord Chancellor in Tulk v Moxhay precisely said that the price that the original purchaser paid would have been reduced because of the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price because a purchaser from him would not be bound. In this specific context is where restrictive covenants of the user of land were originated as proprietary rights29 .
Later cases have introduced four limits o requirements for the creation of restrictive covenants. Many of which have been borrowed from the law of easements. That is why restrictive covenants can be almost described as “negative easements” 30. These requirements are substantially the ones that follow:
In Spanish law the most similar figure to a restrictive covenant would be a “servidumbre predial negativa”, contemplated in Article 533 of the Spanish Civil Code 32. We have already seen that “servidumbres” are a similar figure to easements, although according to Spanish law “servidumbres” can be not just positive, but negative, in the sense of imposing the holder of the servient tenement a restriction or prohibition. Therefore, restrictive covenants are surely (with the cautions that must be made in these kind of analogies) “servidumbres prediales negativas”.
f) Contracts to Purchase Estates in Land
A contract to purchase an estate in land without anything else creates a property right for the purchaser in respect of that estate, so that a third party purchasing the estate in question may be bound by the contract of sale. In this situation, a court imposed trust arises. As Sir George Jessel MR said in Lysaght v Edwards (1876) 2 Ch D 499, 506:
“The moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser …”.
It is another addition that equity creates to the list of property rights in respect of land. As Prof. Swadling underlines, the key to understanding this area of law is to realize that equity and common law take different views of the effect of the contract. The common law sustains that a contract of sale of a title to land creates only personal rights and is not itself sufficient to pass any property rights from vendor to purchaser. From the common law perspective, a property right in land will only pass on the execution of a deed (for unregistered land) or alteration of the register (in cases of registered land). From this point of view if there is a valid contract for the sale of a proprietary right in land and the vendor refuses to perform breaching the contract, the purchaser’s only right would be to sue for damages fro breach of contract (as he does not have any property right).
Equity takes a different view of the referred situation. From equity’s perspective the contract of sale has the effect of transferring the promised title vendor to purchaser. If the title is still in the hands of the vendor, the court says that he holds it on trust for the purchaser. It is a trust created by the court, therefore named as “constructive trust”. The reason for the creation of a trust in this situation is that that a contract of sale of land is one which equity will specifically enforce. Specific performance constitutes an exceptional remedy for the breach of contract, although the rationale here is that titles to land are unique and damages therefore are an inadequate response to any breach of contract to convey. In equity’s eyes the purchaser becomes the titleholder on exchange of contracts, even though the title itself cannot pass until conveyance33 .
In Spanish law, due to the inexistence of “trusts”, there is no similar figure for the situation of contracts for purchase estates in land in which the conveyance has not being completed. In Spain due to our transfer system contained in Articles 609 and 1095 of the Spanish Civil Code 34, contracts only create personal rights. Only a sales contract plus delivery is able to create a proprietary right (the so-called “teoría del título y modo”). Therefore, a valid contract of sale which is not performed by the vendor only enables the purchaser to action the remedies for breach of contract. Nevertheless, specific performance is not an exceptional remedy, so it is an option that can be asked by the purchaser in those cases by virtue of Article 1124 of the Spanish Civil Code 35. This legal provision enables the creditor to ask for two possible options: specific performance, or termination of contract; and in both cases followed by damages in the case of deliberate breach by the other party of the contract. In other words, due to the remedies existing in Spanish contract law the final result of these kind of situations might be similar to the one given in English law, although in Spanish law no proprietary right is born with just a contract (we only have legal rights and not equitable or beneficial proprietary rights as in English law).
g) Unpaid vendor’s lien
Where the vendor of a title to land has conveyed that title but has not received all of the purchase price, a lien arises. This enables the vendor to go to court to recuperate the rest of the purchase price by forcing the sale of the land to get the moneys owed 36.
It is another proprietary right created by equity.
In the Spanish legal system the unpaid vendor’s lien would be something similar to an automatic “embargo” that would appear due to the non payment by the purchaser who already holds the title with respect to the land. This “embargo” would then lead to the judicial or forced sale to recuperate the moneys owed. These would be the Spanish figures which would serve to explain what the unpaid vendor’s lien consists in; but there is no legal figure which is exactly equivalent to it in Spanish law. In Spain, if the purchaser does not pay, and the title has already passed to the purchaser (which would not be frequent in practice, as the conveyance is usually subject to the full payment of the price), the vendor must use a remedy for breach of contract and only if the purchase still does not attend to the judge order of payment, the execution of that order must then be asked. This execution leads to the charge of any title owned by the debtor (it could be the land initially sold or any other asset) and the ultimate forced sale done by the court.
h) Options to Purchase
An option to purchase has a proprietary affect in the eyes of equity. While being one stage away from the sales contract, it remains an enforceable right. The reason for its enforceability is in the uniqueness of land: it is impossible to find land exactly the same anywhere, and as such is specifically enforceable. Thus, as Sir George Jessel MR explained in London and South Western Railway v Gomm:
[The promisor’s] estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give [the promise] an interest in the land: (1882) 20 Ch D 562, 58137 .
The equivalent figure in the Spanish legal system is the “opción de compra” which is also considered a proprietary right, belonging to the category of the so-called “derechos de adquisición preferente”.
i) Mortgage and equities of redemption
A mortgage is a device used to assure the performance of an obligation (usually repayment of a debt) by the mortgagor. In its simplest form, a mortgage functions by transferring the borrower's fee simple or lease to the lender with a proviso for reconveyance by the lender when the obligation is performed. It is a transfer for security purposes. English law confers rights on the mortgagor to ensure that the mortgagee gets nothing more than a security right. So, whilst the fee simple or the lease is in the hands of the lender, the borrower acquires a right called the “equity of redemption”, which is prima facie binding on third parties (another proprietary right created by equity). Unlike the other rights discussed so far, the equity of redemption is not unique to land. Indeed, it is not unique to property rights at all, applying to all rights, personal or proprietary, which are transferred as security for the performance of an obligation. So far as content is concerned, the mortgagor is given the right to redeem the mortgage at any time, even after the agreed repayment date has passed38 . In addition, the courts have been very protective of such right, and in a series of cases, have outlawed attempts to cut this down by contract39 .
An English mortgage is seen in the Spanish legal system as a real “fiducia cum creditore”, as it confers the lender the transfer of the property for security purpose, with the particularity of giving a parallel proprietary right to recuperate the property once the debt is paid. What many times is translated as mortgage as equivalent to the Spanish “hipoteca” is imprecise, as the real equivalent to the latter is what is known as “charge”, which we will now analyse.
Another way to use property as security is to “charge” property rights in land (and other rights, including personal rights such as shares and debts). The difference between a charge and a mortgage is that a charge does not require the conveyance of the property that is subject to the security. Like transfers for security purposes, they are also effective against third parties. They are another creation of equity introduced to the common law by statute 40.
As we have already affirmed, the equivalent legal figure to a charge in Spain is the “hipoteca”: a security proprietary right with which the property is not transferred to the lender thus it gives him the possibility of forcing a sale of the secured property in case of not paying the secured debt.
5. CREATION OF PROPERTY RIGHTS
This section will deal with the main ways in which property rights in respect of land come to existence, whereas the following one will explain how these rights can be transferred once created. It is what in Spanish law would be known as “modos originarios y derivativos” for the acquisition of property rights.
5.1. Taking possession
In English law, the act of taking possession of a thing is enough to give the holder the right to exclusive possession forever. Whether that was wrongful or not is irrelevant, nor does it matter that others may have had property rights in respect of that object before.
In the case of Asher v Whitock (1865) LR 1 QB 1, 6, it is said the mere act of taking possession of a parcel of land gives the actor a right to exclusive possession of that land good against all save those with a superior right to possession 41.
In Spanish law taking of possession of land that does give automatically a proprietary right such as proper “ownership” (“derecho de propiedad”). This could be given together with the legal requirements for adverse possession (which require a minimum period of continuous pacific possession for ten or twenty years -depending if the parties implied are or not present in the same place-, together with good faith, possession in the concept of owner and “just title” – “usucapión ordinaria” ex Articles 1940, 1941 & 1957 of The Spanish Civil Code42 ). However it must be noted that the fact of simply taking possession of a thing is provided of a limited protection by the Spanish legal system: the protection given to “possession” (ex Article 446 of the Spanish Civil Code 43), which is considered to be a proprietary right (although limited, as we say). The mere possessor of land (not being the owner of it) can protect his possession throughout the traditionally called “interdictos” (contemplated in Article 250 of the Spanish Civil Procedure Act – “Ley de Enjuiciamiento Civil 1/2000, de 7 de enero”- but with that traditional name).
5.2. Long user (prescription)
English law has no doctrine of acquisitive prescription, where rights can be gained by the long user, unlike civil law systems. The one exception to this is are easements and profits. In certain circumstances, where someone has been openly acting as if they already have that right for many years without anything being said by the title holder, it is possible to gain the profit or easement at common law. The original thinking behind this was that the long user raised a presumption that a grant had been validly made at some point in the past, in accordance with the maxim omni praesumuntur rite et sollemniter esse acta (all things are presumed to be correctly and solemnly done), though the notion that there had been a grant soon became a fiction. In general, it is enough nowadays to show a twenty-year user 44.
In Spanish law, in accordance to the civil law legal tradition, acquisitive prescription does exist as it has already been noted. There two main kinds of usucapio in respect of land: the “ordinary usucapio” and the “extraordinary” one. The ordinary usucapio requires a continuous pacific possession of ten or twenty years (depending on the parties implied being present or not in the same place), acting as an owner, with “just title” and good faith (Articles 1940, 1941 & 1957 of the Spanish Civil Code). Whereas “extraordinary usucapio” requires a continuous pacific possession of thirty years, acting as an owner (in this case there is no need for “just title” nor good faith -Article 1959 of the Spanish Civil Code-45 ).
6. TRANSFER OF PROPERTY RIGHTS
Transfer may happen for a number of reasons, for example: as a gift, pursuant to a contract of sale, as a transfer on trust, in exchange for other property rights (barter), as a loan for consumption, as part of a divorce settlement, or even as the subject-matter of a mistaken transfer. The type of right transferred is more important than the reason for the transfer. Additionally, the transfer will not be affected if there is defect in the reasons for transfer46 . English law, therefore, subscribes to a principle of abstraction.
Originally, fee simple and leasehold titles to land were only conveyed between private individuals. For fees simple, this was first done by “feoffment with livery of seisin”, a ceremony taking place on the land in which the transferor placed a lump of earth into the hands of the transferee. In 1845 the deed was introduced as an alternative method by legislature. And since 1925, the only method of transfer is the deed (according to section 52 (1) of the Law of Property Act 1925). A deed is a document that describes itself as deed, is signed and attested (signed in the presence of witnesses) and the witnesses must also record that on the deed. Not only fee simples, but also leases conveyances must be always done by deeds.
However, today, titles to land can only be transferred via a state registrar of title. This is because of the introduction of a state-maintained land register of title in 1925, backed up by a system of state insurance. Since 1st December 1990 the whole of England is subject to compulsory registration. Nevertheless, that does not mean that all titles are now registered, as in the case of for example corporations (which never die) there may never even be a disposition of the unregistered land, so it will never become registered. Until recently, compulsory registration only applied in the case of sale, though it now covers most other dispositions as well47 .
The transfer of real property in England is hugely similar to the compulsory registration transfer system existing in Germany: the transfer of real property is subject to compulsory and constitutive registration, therefore there will be no real property transferred outside the register.
In the Spanish legal system the transfer of real property is not subject to compulsory registration. The rules for the transfer of land are the same as those for the transfer of goods: both the contract (“título”) plus the delivery of the thing (“modo or traditio”) are needed for the transfer of the proprietary right. It is a singular transfer system typically Spanish which differs from the French “consensual” system where the contract is enough to create a proprietary right. As it has already been noted, this system is contained in Articles 609 and 1095 of the Spanish Civil Code48 .
7. EXTINCTION OF PROPERTY RIGHTS
Although it is not a common topic in English law property books, following the continental structures that are usually followed in the study of property law, the final matter which will be analysed is that concerning the extinction of property rights (focusing, again, on real property).
7.1. Destruction of the Subject-Matter of the Right
The most basic cause of extinction of proprietary rights is the destruction of its subject matter. If proprietary rights are rights with respect to things, once the thing disappears, the right will also do so. This can happen in any number of ways, from actual damage, e.g. fire, flood, etc.49 .
This is also the most basic source of destruction of a proprietary right according to Spanish law.
7.2. Lapse of Time
English law has no doctrine of disuse, no notion that rights are lost if not exercised for long periods of time. However what does exist in English law, are rules which give time limits within which remedies for interferences with rights must be sought. While my right to physical integrity will not be lost simply because I fail to sue a someone who punches me on the nose within the relevant period of limitation, it is different with property rights. Failure to defend infringements in court will generally lead to a destruction of the right.
As to when I will lose the right to exclusive possession itself, section 15(1) of the Limitation Act 1980 says that actions to recover the possession of land may not be brought after twelve years from the date on which the right of action ensued and section 17 further provides that at the end of this period, the right of the dispossessed “shall be extinguished”50 .
In Spanish law the lapse of time will destroy the property right due to its disuse and the parallel use (with the usucapio legal requirements already seen) by someone else51 .
2 BURN, E. H., CARWRIGHT, J., Chesire and Burn’s Modern Law of Real Property, 18th Edition, Oxford University Press, 2011, p. 1. With respect to the importance of history in the understanding of English land law DIXON, M., Modern Land Law, 9th Edition, Routledge, Abingdon, 2014, p. 2, affrims: “Land law is a subject steeped in history. It has its origin in the feudal reforms imposed on England by William the Conqueror after 1066, and many of the most fundamental concepts and principles of land law spring from the economic and social changes that began then”.
3 This paper is mainly inspired and follows the structure given by William Swadling in his work: “The law of Property”, in Oxford Principles of English Law. English Private Law, Edited by Andrew Burros, 3d Edition, Oxford University Press, Oxford, 2013, p. 173-306. As well as his paper on Introduction to English law of property facilitated in the PhD seminar given in the University of Seville the 21st of November 2014.
4 SWADLING, W., “The law of Property”…, cit., p. 173.
5 BURN, E. H., CARWRIGHT, J., Chesire and Burn’s Modern Law of Real Property…, cit., p. 4, affirm to this end: “Property rights are to be contrasted with personal rights. This contrast, in Enclish law, can be expressed in the same essential terms as were developed in Roman law: property rights are rights in rem; persona rights are rights in personam. Tos ay that one has a property right in relation tol and is tos ay that one has a right over, or in respecto of, the land itself. A personal right, however, is a right against a person, generated by the act of the persono r imposed on him by the law, but in every case the right is against… the particular individual concerned”.
6 BURN, E. H., CARWRIGHT, J., Chesire and Burn’s Modern Law of Real Property…, cit., p. 4, affirm to this respect that “the significance of the distinction between personal rights and property rights, for our purposes, lies in the case where third parties become involved”.
7 National Provincial Bank Ltd v Ainsworth  AC 1175, 1247-8.
8 SWADLING, W., “The law of Property”…, cit., p. 174.
9 SWADLING, W., “The law of Property”…, cit., pp. 175-176.
10 With respect to the numerus clausus / numerus apertus matter in the Spanish legal system see DÍEZ-PICAZO, L., “Autonomía privada y derechos reales”, in Revista Crítica de Derecho Inmobiliario, Nº 513, 1976, pp. 273-305.
11 DIXON, M., Modern Land Law…, cit., p. 3, affirms: “The law of real property (or land law) is, obviously, concerned with land, rights in or over land, and the processes whereby those rights and interests are created and transferred”.
12 BURN, E. H., CARWRIGHT, J., Chesire and Burn’s Modern Law of Real Property…, cit., p. 5, with respect to the origin of the technical distinction between “real property” and other property (“personal property”) affirm what follows: “The common law devised certain forms of action to enable rights to be enforced. … In the early law the actions by which property could be specifically recovered we known as the “real actions”. But only land could be specifically recovered by such actions; a person who was dispossessed of a chattel could bring only an action for damages for the wrong committed by the dispossession, and could not recover the chattel itself. Land, the subject of the “real actions”, therefore came to be known as real property”.
13 SWADLING, W., “The law of Property”…, cit., p. 178.
14 DIXON, M., Modern Land Law…, cit., p. 23.
15 DIXON, M., Modern Land Law…, cit., pp. 10-11.
16 If the right were legal, it would always bind every transferee or owner of the land over which it existed. Whereas if the right were equitable, it would bind every considerable extent by requiremets of registration. DIXON, M., Modern Land Law…, cit., p. 25.
17 DIXON, M., Modern Land Law…, cit., p. 25.
18 DIXON, M., Modern Land Law…, cit., pp. 15-16. There are many different essential books which deal with the law of trusts; for an introductory study of this particular common law legal figure see GARDNER, S., An introduction to the law of trusts, 3d Edition, Oxford University Press, Oxford, 2011.
19 SWADLING, W., “The law of Property”…, cit., p. 185.
20 DIXON, M., Modern Land Law…, cit., p. 7.
21 About the constitutional configuration of property law see the essential work: LÓPEZ Y LÓPEZ, A. M., La disciplina constitucional de la propiedad privada, Tecnos, Madrid, 1988.
22 SWADLING, W., “The law of Property”…, cit., pp. 185-186.
23 SWADLING, W., “The law of Property”…, cit., p. 185.
24 (1985) 49 P & CR 324, 332, CA.
25 See King v David Allen (Billposting) Ltd  AC 54. Thus, in Haywood v Brunswick Permanent Building Society (1881) 8 QBD 403, a vendor of a title to land promised his purchaser to keep certain buildings on it in repair. Both parties assigned their various rights, and the question arose whether an assignee from the vendor, who had bought with knowledge of the promise, was liable for failure to perform it. The Court of Appeal held that he was not, for such right could not amount to an easement, as it required positive action.
26 SWADLING, W., “The law of Property”…, cit., p. 195.
27 Article 530 of the Spanish Civil Code affirms: “La servidumbre es un gravamen impuesto sobre un inmueble en beneficio de otro perteneciente a distinto dueño.
El inmueble a cuyo favor está constituida la servidumbre se llama predio dominante; el que la sufre, predio sirviente”.
28 SWADLING, W., “The law of Property”…, cit., p. 199.
29 SWADLING, W., “The law of Property”…, cit., p. 200.
30 Although this is not purely accurate for, unlike easements, they cannot be acquired by prescription: SWADLING, W., “The law of Property”…, cit., p. 201.
31 SWADLING, W., “The law of Property”…, cit., p. 201.
32 Article 533 of the Spanish Civil Code affirms: “Las servidumbres son además positivas o negativas.
Se llama positiva a la servidumbre que impone al dueño del predio sirviente la obligación de dejar hacer alguna cosa o de hacerla por sí mismo, y negativa la que prohíbe al dueño del predio sirviente hacer algo que le sería lícito sin la servidumbre”.
33 SWADLING, W., “The law of Property”…, cit., p. 202.
34 Article 609.2 of the Spanish Civil Code affirms: “La propiedad y los demás derechos sobre los bienes se adquieren y transmiten por la ley, por donación, por sucesión testada e intestada, y por consecuencia de ciertos contratos mediante la tradición”.
Article 1095 of the Spanish Civil Code affirms: “El acreedor tiene derecho a los frutos de la cosa desde que nace la obligación de entregarla. Sin embargo, no adquirirá derecho real sobre ella hasta que le haya sido entregada”.
35 Article 1124 of the Spanish Civil Code affirms: “La facultad de resolver las obligaciones se entiende implícita en las recíprocas, para el caso de que uno de los obligados no cumpliere lo que le incumbe.
El perjudicado podrá escoger entre exigir el cumplimiento o la resolución de la obligación, con el resarcimiento de daños y abono de intereses en ambos casos. También podrá pedir la resolución, aun después de haber optado por el cumplimiento, cuando éste resultare imposible.
El Tribunal decretará la resolución que se reclame, a no haber causas justificadas que le autoricen para señalar plazo.
Esto se entiende sin perjuicio de los derechos de terceros adquirentes, con arreglo a los artículos 1.295 y 1.298 y a las disposiciones de la Ley Hipotecaria”.
36 HARPUM, C., BRIDGE, S., DIXON, M., Megarry & Wade The Law of Real Property…, cit., p. 1115: “A vendor of land has an equitable lien on it until the full purchase Price is paid, even if he has conveyed the land to the purchaser and put him into possession. This lien gives him no right to possession of the land, but enables him to apply to the court for a declaration of charge and for an order for sale of the land, under which he will be paid the money due. … An equitable lien is therefore a species of equitable charge arising by implication of law”.
37 SWADLING, W., “The law of Property”…, cit., p. 203.
38 DIXON, M., Modern Land Law…, cit., p. 425: “Fundamentally, a mortgage is not seen as an opportunity for the lender to acquire the mortgagor’s property: it is security for a debt. For this reason, a court of equity will intervene to protect the mortgagor and their equity of redemption against encroachment by the mortgagee and will ensure that the mortgage ends when the debt is repaid”.
39 SWADLING, W., “The law of Property”…, cit., p. 203.
40 SWADLING, W., “The law of Property”…, cit., pp. 203-204.
41 SWADLING, W., “The law of Property”…, cit., p. 276.
42 Article 1940 of the Spanish Civil Code affirms: “Para la prescripción ordinaria del dominio y demás derechos reales se necesita poseer las cosas con buena fe y justo título por el tiempo determinado en la ley”.
Article 1941 of the Spanish Civil Code affirms: “La posesión ha de ser en concepto de dueño, pública, pacífica y no interrumpida”.
Article 1957 of the Spanish Civil Code affirms: “El dominio y demás derechos reales sobre bienes inmuebles se prescriben por la posesión durante diez años entre presentes y veinte entre ausentes, con buena fe y justo título”.
43 Article 446 of the Spanish Civil Code affirms: “Todo poseedor tiene derecho a ser respetado en su posesión; y, si fuere inquietado en ella, deberá ser amparado o restituido en dicha posesión por los medios que las leyes de procedimiento establecen”.
44 SWADLING, W., “The law of Property”…, cit., p. 282.
45 Article 1959 of the Spanish Civil Code affirms: “Se prescriben también el dominio y demás derechos reales sobre los bienes inmuebles por su posesión no interrumpida durante treinta años, sin necesidad de título ni de buena fe, y sin distinción entre presentes y ausentes, salvo la excepción determinada en el artículo 539”.
46 SWADLING, W., “The law of Property”…, cit., p. 282.
47 SWADLING, W., “The law of Property”…, cit., pp. 282-285.
48 A great analysis of the main transfer systems of proprietary rights can be seen in CUENA CASAS, M., Función del poder de disposición en los sistemas de transmisión onerosa de los derechos reales, José María Bosch Editor, Barcelona, 1996.
49 SWADLING, W., “The law of Property”…, cit., pp. 288-290.
50 SWADLING, W., “The law of Property”…, cit., pp. 290-293.
51 It must be noted that due to the basic approach which characterizes this paper we will not analyse other cases of extinction of property rights such as “inferior title sold to good faith purchaser for value”, or encumbered title sold to good faith purchaser for value”; both extremely complex cases which would need to be deeply analysed to reach a comprehensive overview from a civil lawyers perspective.