By Fabio Marques

The surface right can be defined as a real right over another person's property that authorizes a third party who is not the owner to build or plant on another person's land for a specific period of time, or even the real right to have one's own property incorporated into another person's land.

The right of surface is an exception to the ancient principle of accession, according to which the owner of the land becomes the owner of everything that adheres to it, and cannot be removed without fracture or deterioration.

The main characteristics of the surface right are: (i) It temporarily allows the breaking of the ownership unity between land and construction or plantation; (ii) It is temporary. The perpetual surface right is not permitted, and the establishment of the surface right in this way, or for such a long period that it is equivalent, in its effects, to perpetuity, constitutes fraud of the law.

The temporality of the surface right, however, does not imply a time limit for the exercise of this right, which can be adjusted by the parties, but the contract cannot have an uncertain or indeterminate term or a resolutory condition.

The parties may also constitute what is called a surface by Split, which is defined as being one in which the owner of a property where there are already plantations or buildings remains with the bare ownership, and grants the surface to the surface holder.

The doctrine has also been admitting the establishment of a double right of surface, the right of surface over the surface, called sub-disclosure, which is accessory to the first right of surface.

The surface right does not authorize construction in the subsoil, unless it is inherent to the purpose of the concession. The construction of construction in the subsoil is not prohibited; it is only subject to a link of utility and functionality with the erected work.

The surface may be constituted by public deed, registered at the competent real estate registry office, by cause of death, established in a will, by adverse possession after the completion of the 10 or 5 year term, and the surface owner may also acquire adverse possession of the full ownership of the property – when he explicitly states to the grantor that he no longer recognizes the supremacy of his right to the restitution of the thing and possesses the property as his own.

The main characteristics of the surface right are: (i) The transaction is not presumed to be free of charge. In the event of omission, the interpreter must take into account the nature of the works, the amount of investment, the terms of the real right over another person's property and the final compensation for accessions; (ii) the remuneration is called solarium or surface right. Payment may be made in advance, during or at the end of the contract. The remuneration should not be confused with rent, which is a personal right. The leased property is subject to repossession for personal use or for renovation of the building, in addition to any compulsory renewal; transferability by inter vivos act, whether onerous or gratuitous, or causa mortis.

The clause regarding the inalienability of the surface is considered unwritten, even if imposed in a donation or will.

It is an autonomous and non-personal right and, therefore, can be alienated, including being seized and taken to public auction.

The third party who is not the owner is called a surface owner and assumes certain obligations provided for by law: (a) not to give the property a purpose other than that for which it was granted and; (b) to be liable for charges and taxes that affect the property.

Right of preference: the parties have the right of reciprocal preference in the acquisition of the surface or property right respectively, in the event of onerous alienation.

Extinction: by the advent of the formal term, after the term for which it was contracted has elapsed; by violation of the terms of the contract or by expropriation.

In addition to the surface right provided for by the Civil Code, there is the surface right provided for by the City Statute, law 10,257. The doctrine debates the possible revocation of the Law by the civil code, but there seems to be an inclination towards maintaining the surface right provided for by the Law based on the specialty criterion.

There are several points in which the discipline of the surface by the city statute is different from the discipline of the civil code: firstly, the city statute only provides for the surface that occurs on urban land, in addition, the term in that can be for a determined or indefinite period, and the creation, by act between living persons, depends on a public deed with registration in the notary's office.

The scope of the surface right of the city statute is also broader because it can reach the soil, subsoil or airspace.