What is meant by a surface right (“derecho de superficie”)?

Question

José Manuel Alburquerque · Accepted Answer

It is the right to own, for a period of time, what is built or planted on someone else's land. One person remains the owner of the land and another, the holder of the surface right (the “superficiario”), owns the building or plantation for as long as the right lasts. In Catalonia it must be created by public deed and for a maximum of ninety-nine years. For it to be effective against third parties, it should be registered at the “Registro de la Propiedad”, the Land Registry. When it ends, what has been built passes to the owner of the land without their having to pay anything, unless otherwise agreed. What it is and what it is used for The “Código Civil de Cataluña”, the Catalan Civil Code, defines it as a right over someone else's property that gives, for a period of time, ownership of buildings or plantations separate from ownership of the land. It may relate to buildings that already exist, above or below ground. It may also relate to those still to be built, which the holder then has the right to put up. Typical uses are: Installing solar panels or wind turbines, the windmills that produce electricity, on someone else's land or roof. Building an underground car park beneath a square or a plot of land. Putting up affordable housing or community facilities on public land or land belonging to an organisation, which keeps ownership of the land. Unlike a tenant, the holder of the surface right owns what they build for as long as the right lasts. They can sell or mortgage it, unless it has been agreed that they need the landowner's permission. In the meantime, the IBI (the local property tax) is generally paid by the holder of the surface right. How it is created and what can be agreed It must be set out in a public deed. The deed must state at least how long the right lasts, what the building or plantation will be like and, if it has yet to be built, the period within which it will be built. It must also state what the holder pays and which part of the property it occupies if not the whole of it. It is effective against third parties from the time it is registered at the Land Registry. Before that, only against those who already knew about it. The term can under no circumstances exceed ninety-nine years. A ground rent (“pensión”) can be agreed, that is, a periodic payment to the landowner. So can a requirement for the holder to obtain the landowner's consent to sell, preferential rights to buy or a clause ending the right if the holder does not build within the agreed period. What happens when it ends The right ends for the general reasons, such as the expiry of its term or renunciation. Unless otherwise agreed, the building or plantation then passes to the landowner, who does not have to pay the holder any compensation. In addition: Mortgages or other rights that the holder has created over the building are not lost if the right ends early. They are lost when the term expires or, if the building already existed when the right was created, when the building is lost altogether. If what the holder built is destroyed, the right does not end and they can build again. Outside Catalonia it is mainly governed by Spain's national land law, which has its own rules that should be checked in each case.