HISTORICAL EVOLUTION OF PROPERTY LAW

SCENT

It is during this time that the basic idea of property is forged; It was developed in stages:

A.1. ARCHAIC PERIOD

In this period, it is the Family or Gens that had ownership over a primitive right over the
land , with the PATER FAMILIAS at its head, who was the one who had the power, the
fullness of its civil rights (SUI IURIS). Therefore, there was collective property, but
private and not public, in the first case an individual property in the second.

Individual property is more a " power " than a property, in the modern sense of the term.

Since the beginning of the Republic , Rome has seen its domains grow at the mercy of
conquests, which will allow lands to be confiscated and given to individuals, against the
payment of an annual fee. This factual situation, called POSSESIO, little by little
attributes a true right to whoever obtains occupation, so that increasingly the State 's
property right is drawn as a theoretical lordship, an eminent domain .

A.2 CLASSICAL PERIOD

Firstly, we can point out the so-called "Quiritarian Property" or full Roman property,
where the only ones who exercised it were Roman citizens. Secondly, we can point out
the appearance of the so-called provincial, pretoria or pilgrim property. The praetor
considers that there were properties that were not under quiritarian ownership and
should be protected; The conditions of their protection are set by the magistrate, thanks
to whom the de facto relationships produce increasingly important legal consequences.

Possession is considered as a de facto relationship, but adapted to needs, practice and

sometimes assimilated to material possession and other times to the right to possess.

A.3. UNDER EMPIRE

We find here that the only existing property is that recognized by Roman civil law . At
this time, praetorian, pilgrim and provincial property are just a memory.

At this time, possession acquired its greatest evolution , when it was pointed out that the
possession par excellence was the POSSESIO CIVILES or possession of the owner or
the one who believed himself to be the owner, by virtue of a fair title of acquisition, for
which he had to demonstrate good faith, fair title and duration.

In summary, we will say that the Dominium ExIure Quiritium is indeed scarce, because
there were very few FUNDI IN SOLO ITALICO; What is common in Rome is not such
a domain, but rather a large series of provincial estates, based on which the Byzantines
developed their CORPUS IURIS, which is taken as the typical Roman property, despite
not having its characteristics either.

b. MIDDLE AGES
After the fall of the Empire, the authority of the large owners becomes more de facto
than de jure, the crisis of the State turns the large owner into an all-powerful owner and
makes his property a "domination."

The number of small freeholders decreases and they are subject to the "Potens" Law or
to request the protection of an ecclesiastical establishment.

An essential character of the time is the confusion between personal ties and real ties.
Legal relationships are relationships of force : "Having" something does not mean being
its owners, it is very difficult to talk about property and owner, it would be better to
highlight the fact that different real rights overlap on the same land .

The appearance of the lordships marks the appearance of a type of "Rural Chiefs" who
enjoy almost total autonomy, leading them to confuse sovereignty and property.

The "Potens" convert the taxes of public power into the object of their private property,
they acquire seigneurial rights that are a sign of their power, property becomes the
object of their sovereignty

The feudal group is a kind of extended family and the bonds of man to man, created by
the ceremony of vassalage. The vassal must be "faithful" to his lord and he must lend
him the "Auxilium" and the "Consilium" (Council). Thus, the regime of fiefdoms is of
more interest to private law than to public law. It thus became a specific property
regime that would persist until 1789, the year in which the French Revolution would
radically put an end to feudalism , as TOCQUEVILLE states "It was by finishing
overthrowing feudalism that the revolution became noticeable." It was the Revolution,
which through various laws , suppressed noble titles, debts contracted with nobles and
lawsuits arising from crimes committed against them, but perhaps the most important
Law was to require nobles to present their titles. of ownership over the land to be able to
conserve or rescue it, which in practice was a pure and simple abrogation, in favor of
the bourgeoisie. It is the declaration of 1789 that would give the property an inviolable
and sacred character that would be reflected in the French Civil Code of 1804.

c. CONTEMPORARY AGE

It is during the 19th century, as we noted above, that the thesis of property as a social
function emerged, the thesis that would break with the "sacred and imprescriptible"
character that Liberalism sought to give to property.

As the basis of this thesis, we can point out, first of all, the criticism of the
individualistic character of property; VON IHERING pointed out that "Property could
not be an inaccessible castle... left to the discretion... of incomprehension, caprice,
stubbornness and the most frivolous and unbridled selfishness of the individual ", since
property had to serve, as an element for the integral development of society . Secondly,
we can point out the growing intervention by the State in the economy , a point that
would be reflected with greater emphasis after the world wars . As a first example of
what has been said, we can point out the WEIMAR Constitution of 1919, which in its
article 153 points out that "Property will be protected by the Constitution. Its content
and limits are set by the Laws. Property obligates. Its use must at the same time be at
the service of the common good." That is, from this moment on the right serves as a
brake on the owner's powers.

This orientation is included in our positive legislation, stating "That property obliges the
use of assets in harmony with the social interest " or in harmony with the common good
in accordance with the dictates of the new Constitution (Art. 70).

d. PROPERTY IN PERU

We will develop it by periods to be able to appreciate its evolution.

D.1. PRE-INCAIC PERIOD

Property data on the prehistoric period are still incomplete; However, in Peru, as in
other towns, property has been collective in origin. In the Peruvian case. The primitive
social cell is the agrarian community or AYLLU. This community appears to us as a
result of secular evolution; Its birth is lost in prehistory and we still find it today in
various regions of America without its physiognomy having been noticeably altered
(Baudin).

Consequently, as Hildebrando Castro Pozo asserts, "the original root of the prehistoric
ayllu was, therefore, the Hordic clan or groups constituted and organized by ties of
consanguinity, in a single economic unit, at the beginning of only consumptive and
defensive quality , and with essentially productive posteriority. That is why the word
"Ayllu", in Quechua, means genealogy, lineage, kinship, caste; the genus or species of
things."

The full existence of private property corresponds, in general, to a historical stage in

which clan and gentile groups collapse, families become emancipated and isolated, and
a lordly layer divided into families that have slaves and servants is imposed. Therefore,
this stage coincides with organized despotism and the creation of official officials, that
is, of the State.

D.2. INCA PERIOD

Regarding the nature of land ownership, the Inca is considered a socialist collectivist
system , where certain traces of individual property that were stopped by the application
of the Inca system, and "quasi-ownership", consisting of donations, can be seen. was an
exception."

A collective society thus erected leads to considering, legally, a fairly strengthened

collective property.

Atilo SIVIRICH affirms that the Incas being traditionally collectivist, they did not have
the slightest concept of private property in relation to real estate. For this reason,
according to him, the Incas only had one Public Law; They had no knowledge of
Private Law. By ignoring private property, he affirms that the institutions of private law
relating to people, obligations , contracts , etc. did not exist.
But there are other authors like Jorge Basadre, who admits a rather impoverished private
and commercial law. It is based on the fact that although real estate could not be, at least
for the most part, an object of sale , then, when a relative "assimilation" of land to
movable property occurs, making it interchangeable, the Law of (real) things occurs. ,
obligations and successions , becomes relevant.

D.3. PERIOD OF CONQUEST AND COLONIAGE

Collectivism is replaced by individualism. As for property, the AYLLU is replaced by

feudal private property. One of the contributing elements to this varied penetration is the
law that we could characterize as mestizo, intermediate: Indian Law.

This Indian right played a very important role, because as soon as America was
discovered, the Spanish crown tried to obtain titles that "prove", that legitimize its rights
over the regions of the New World. This becomes even more important to the extent
that the colony's enterprise is closely linked to the appropriation of goods ( minerals ,
land, etc.).

Apparently, it was the papacy that came to formalize Spanish royal domination, via the
institution of bulls.

In this questioned bull, the crown was protected to grant the lands to various people as a
reward for the services provided in the discovery and conquest. And also according to
said bull, the crown obviously had dominion over the American lands; Such lands were
conferred not only to the discoverers and colonizers, but also to the churches,
municipalities, convents, etc. And, by contrast, in everything that was not delivered or
granted by the crown, it evidently belonged to it (as established by Law XIV of October
20, 1578).

The colonial agrarian regime, Ugarte maintains, "determined the replacement of a large
part of the agrarian communities with individually owned latifundia, cultivated by the
Indians under a feudal organization . These great fiefdoms, far from being divided over
time , were concentrated and consolidated in a few hands because real estate was
subject to innumerable obstacles and perpetual encumbrances that immobilized it, such
as estates, chaplaincies, patronages, and other property ties".

This Period is characterized, therefore, by the heroic resistance of the agrarian

community (deep Peru), in the face of constant attacks to disappear it and absolutely
and totally implement feudal property (official Peru).

D.4 PERIOD OF INDEPENDENCE

José Carlos Mariátegui, when analyzing the land problem during this period, highlights
the role of rector of the bourgeoisie - incipient bourgeoisie, for that matter - during this
movement . The indigenous peasantry, despite being the vast majority, did not have a
direct, active presence, therefore, Amauta adds, "If the revolution had been a movement
of the indigenous masses or had represented their aspirations, it would necessarily have
had an agrarian physiognomy."
The new policy of the Republic, "left intact the power and strength of feudal property,
invalidated its own measures to protect small property and the land worker."

d. 5 PERIOD OF THE REPUBLIC

At the beginning of the republican era, legislators - as in the colony - transplanted the
European legal- political ideas inherited from the French Revolution : division of
powers, civil rights, citizen and democratic liberties, etc. And the French revolutionary
conception was not anything other than a return to the Roman conception taken to the
extreme.

The subjectivist conception of property - which considers it as a projection or extension

of the human personality on goods - leads to considering it as an absolute and unlimited
right, so that all types of ties and privileges are eliminated. For this reason, the first of
our Constitutions (1823) guaranteed the inviolability of the right of property (Art.193
Inc 3). Example that all subsequent ones have followed, although those of this century
already introduce new currents related to the subject.

CONCEPTUAL DIFFERENCE BETWEEN DOMAIN AND OWNERSHIP

When developing the first point, the evolution of the property we find the fact that in
Rome There was not a single form of property, but several (Quiritarian Property,
Pretoria, Provincial, etc.), we also point out the error that is made when equating the
word "Property" with "Dominium", since each of them has its own meaning. in Rome.
Later, with the jurists of the Middle Ages , these terms were confused, a confusion that
in many cases still exists.

For Puig Brutau, the term property indicated any relationship of belonging or
ownership, and thus it is possible to speak, for example, of intellectual and industrial
property . On the other hand , domain refers to ownership over a corporeal object.

Property = Economic Issue

Domain = Legal Issue

In this same line, Jorge Eugenio Castañeda literally says: "The term "Property" takes on
a broader meaning, it also includes rights, not just things. On the other hand, the word
"domain" is reserved for movable or immovable things.

In that same torrent of ideas, Beatriz Arean, commenting on the opinion of some
authors, comments: "The word property is more generic, since it can be used to refer to
all rights susceptible to pecuniary appreciation. It includes dominion, which is the right
of ownership over things."

As a consequence of the greater scope accorded to the word property, it is possible to

speak of literary, scientific, artistic or industrial property, to refer to situations
completely outside the domain that, in a certain aspect, even go beyond the patrimonial
sphere, as occurs, for example, with the right author's morals . Roca Sartre navigates in
this same direction by pointing out that the Domain is the Real Law, which attributes to
its owner the possible power or lordship over a corporeal thing, within the institutional
limits with a fully autonomous, perpetual (in principle), elastic and partly of
discriminable content.

Likewise, Puig Brutau indicates that "Property is an economic-legal concept, while the
word domain is generally used in a technical sense, to designate dominion over physical
things. It refers to things and rights, full or limited, but always referring to corporeal
things. Property is spoken of with reference to all real rights, while dominion is spoken
of only with reference to full power over corporeal things.

However, Lafaille points out "that these two concepts have been used synonymously
since Roman times."

Vélez Sarsfield also has this same opinion when using the word domain in the sense of
"property", pointing out that this is the criterion extracted from Spanish Jurisprudence .

Our Civil Law is not alien to this discussion, but having used the concept "Property" in
its legislative technique, it is enclosed in it, as Jorge Eugenio Castañeda points out, not
only things, but also rights. "Thus it cannot be said that "domain over a bearer credit ,
but ownership of said credit".

CLASSICAL AND MODERN DEFINITIONS OF PROPERTY

There is no valid definition for all places and all times of property. It is conditioned by
economic, political and other factors.

The Romans were very practical, they always avoided giving an abstract definition of
the domain. REA MEAS EST was a brief Romanistic expression that gives, as Ferranti
says, a synthetic idea of property rights. It indicates the relationship of lordship of the
person with the good.

For the Partidas of Alfonso the Wise, it is "the right to freely enjoy and dispose of our
things as long as the laws do not oppose it" (Law27, tit28, Art. )5; Law 10, tit. 55,
Art.7).

Clemente De Diego gives an interesting definition, for him, property and family, with
their derivative contracts and succession Mortis causa, constitute the main object of
Civil Law and the root of all types of civil-legal relationships.

For the German Romanist Rudolf Sohm, it is absolute legal lordship over a thing; and
although limitations are imposed, they must always be external and will consist of the
rights of other people or of police or public law persons.

The eminent French Marcel Planiol and Georges Ripert conceptualize it like this: "It is
the right by virtue of which a thing is subject, in a perpetual and exclusive manner, to
the action and will of a person." This definition has the merit of containing all the
characters attributed to it by classical doctrine.

Martín Wolf maintains that property is the broadest right of lordship that can be had
over a thing.
Juan Bonnecasse defines it like this: "It is the typical real right, by virtue of which, in a
given social environment, and within a specific legal organization, a person has the
legal prerogative to appropriate, through these materials or legal, all the usefulness
inherent in a movable thing"

Karl Marx , founder of scientific socialism , critically argues: "In each historical epoch
property has developed in a different way in a completely different series of social
relations. Hence, property is not an eternal, immutable and sacred thing, as jurists
affirm, but rather a relative and contingent thing, a product of the economic
organization of societies throughout history . That is why trying to give a definition of
property, as an independent relationship, an abstract and separate category, an eternal
idea, cannot be more than an illusion of metaphysics or jurisprudence."

CONCEPT OF PROPERTY RIGHT

The traditional definition of property right is based on the enumeration of the main
powers that make up its content.

This is observed in the most famous of the definitions born in Byzantium DOMINIUM
EST IUS UTENDI ET ABUTENDI RE SUA QUATENU IURIS RATIO PATITUR.
This way of defining property passed to the French Code in 1804, which in its article
544 states that "property is the right to enjoy and dispose of things in the most absolute
way as long as they are not used in a use prohibited by law or the regulations" and then
to all the Latin Codes that imitate it, having among us, as we saw previously, a norm of
this type (article 923 of the Civil Code).

This type of definition in itself already points out the almost impossibility of defining
ownership since it is not possible to indicate all the possibilities that the owner's will has
regarding the thing. Modern doctrine considers the right of property (like any subjective
right) as the broadest unitary power over the thing, as a global lordship, where the so-
called powers or rights of the owner are not a series of addends whose addition
constitutes the property. , but they are only partial aspects of the total lordship that this
is. <in this sense Manuel Albaladejo defines property as "the maximum full legal power
over a thing. Power by virtue of which, this - in principle - is directly and totally
submitted (that is, in all its aspects and utilities that it can provide) to our exclusive
lordship." In the same way, Wolf says that "property is the broadest right of lordship
that can be held over a thing"; and in the direction of these ideas Jorge Eugenio
Castañeda defines property as "The power or dominion that a person has over a thing
exclusively and exclusively."

We must point out by way of explanation that, when referring to full power, we do not
mean unlimited since it is the same Law that places limits on the right of property; That
is why we share the idea of Albaladejo when he says that: "full power is total power,
within the limits in which the Law grants it over the thing, or if you want, within the
maximum limits that the Law allows it to reach." "lordship over things" or as Pugliatti
says, who, commenting on article 832 of the Italian Civil Code, indicates that property
has no limits and tends to totally absorb all the possibilities of use of the thing, which
leads us to point out that the right of ownership does not lose its character of total
power, even if the owner's powers are reduced, when another person has some other
right over the same property. What would exist is a limitation due to the right of a third
party falling on the thing (Real Right over another's property), which would be
recovered as soon as that right is extinguished.

CONCEPT OF OBJECT OF PROPERTY

Traditionally, legislation that assumes the use of the word "domain" as the direct
relationship with the thing, considers that the object of the property right falls
exclusively on tangible things. We find rules of this type, for example, in Spanish
Legislation, which in article 348 of the Civil Code states that "property is the right to
use and dispose of a thing." Commenting on the French Civil Code, Ripert and
Boulanger point out "that property is the most complete right that a person can have
over a thing, it is identified with things, it materializes in them and appears to be
something corporeal." Along these lines, Manuel Albaladejo considers that the object of
property can only be specifically determined tangible things (whether immovable or
movable).

Diego Espin Canovas, when dealing with this same topic, considers that "logically the
right of property falls on corporeal things, and these are originally limited, but Modern
Law also speaks of intellectual and industrial property, which is why it prefers to talk
about rights over intangible assets , as a category of property rights, of a nature
analogous to real property, which is why they must be considered as special property
rights.

Referring to this point, Puig Brutau points out that "the use of the word property means
the fullest right that can fall on objects of another kind (other than material things), so
we can speak of special properties."

Barbero thinks differently when indicating that we can speak of the object of property
both in terms of material goods (things) and in relation to immaterial goods. He points
out that only people cannot be "objects" of property.

Our legislation, considering that property is a set of rights over a good, includes in its
object both material goods and immaterial goods, this is what teacher Jorge Eugenio
Castañeda considers when pointing out that the word "good is a broad term." that not
only includes things, but also rights".

PROPERTY AS A FUNDAMENTAL CONCEPT OF REAL RIGHTS

The fundamental type, the dominant type of real rights is property. Not only material
property - as the Germans believe - but also the so-called immaterial (incorporeal)
property. Some human beings have never had anything to do with a mortgage or a
usufruct, but there is probably not a single one to whom ownership is strange. As Justus
Wilhelm Hedemann maintains, "the beggar himself is the owner of the rags that cover
him and the staff on which he leans." To understand the deeply human meaning of real
rights - adds the German jurist - "it is enough for us to think of property, as in an
elementary form, referring to which that is a vulgar concept."

MODALITIES OF REAL PROPERTY

A. HORIZONTAL PROPERTY
Currently in force in Peru is the new HORIZONTAL PROPERTY law (although not
under that name), Law No. 27,157, published in El Peruano on July 20, 1999. The
object of the special law is the reorganization of the title and the factory declaration of
"real estate units in which exclusive property and common property property coexist",
such as apartments in buildings, country houses, houses in co-ownership, centers and
shopping galleries or fairgrounds, among others. As can be seen, the original concept
limited to buildings has therefore been significantly expanded, although we believe that
the enumeration is different. For example, it is necessary to mention satellite cities,
neighborhood units, residential groups, to mention a few.

HORIZONTAL PROPERTY is a particular type of property that occurs when the

ownership of the different floors, or the sections, apartments or premises into which
each building or multi-family type is divided, may belong to or correspond to several
people. Obviously, each floor, section or department of it will belong to a different
owner. It is based on the idea that "just as a building can belong entirely to one person,
it is also possible that its different floors correspond to different people"
(ALBALADEJO).

Peruvian legislation does not define it although it gives a broader coverage - and that
corresponds to the rise of this institute - including not only the apartments located in the
buildings, but also villas, shopping centers and galleries, fairgrounds and the so-called
"houses". in co-ownership" (Art. 1st). The law omits to mention neighborhood units,
satellite cities and residential groups, which are so widespread and which were
mentioned in its predecessor.

According to the legal nature, HORIZONTAL PROPERTY is a special or peculiar type

of property, in which along with exclusive ownership (of the apartments, apartments or
sections) there is forced co-ownership (of the common elements). It is not, therefore, co-
ownership or condominium, because this requires that there be no global or materialized
ownership, without a participation in the whole, fixed arithmetically. In horizontal
property, however, each owner of an apartment or flat is the absolute owner;
Consequently, you may lease it, mortgage it, sell it and, in general, tax it freely.

In summary , there are two elements that characterize horizontal property:

a. exclusive ownership over each of the apartments or floors; and

b. the parties or common assets (co-owner over the third party and other common
use assets).

This temperament has been sanctioned by our courts through an executive order that
says: "Horizontal property is characterized by the fact that each owner has exclusive
right over a floor or apartment and co-ownership or condominium over the common
areas and services of the building. The constitution of an easement of passage over
someone else's property is not enough to consider that it is horizontal property.

Exclusive ownership is constituted by the domain that each owner exercises over an
exclusively owned asset, whether called a section or department.

The law in force is aimed at enabling the regularization and healing of the situation of
all those owners of this type of real estate units and buildings "that have been built
without a construction license, compliance of work or that do not have a factory
declaration, independence and/or internal regulations" (Art. 3)

This exclusive property has all the characteristics that the Civil Code grants to real
estate (that is, to common property). Therefore, recognizing the law as exclusive
domain, the owner has the power or right to sell, mortgage, rent, encumber and, in
general, dispose of the section or department of his exclusive property, independently of
the other owners (it expressly said so). the art. 12, "c" of Reg. Of the repealed law).

There are assets or parts of the building in common ownership, that is, whose
enjoyment and use benefits all owners (of each department); These assets are
inseparable from the ownership and use of their respective property.

The current law - contravening the previous law, which declared the transfer or
alienation of common property assets null and void - expressly admits the transfer of
common property assets, which "must be approved by two-thirds of the votes." of the
Board of Owners". (Art.43)

The special law contains an illustrative, non-limiting list of common assets and parts,
namely:

A. The land on which it is raised or built, the building.

B. The foundations, foundations, columns, exterior walls, roofs and other structural
elements, provided that these are not only members of one section but rather
serve one or more sections.
C. Passages, passageways, stairs and, in general, common use circulation airways.
D. Elevators and freight elevators.
E. Exterior decorative works of the building or located in common areas.
F. The premises intended for concierge and guard services.
G. Gardens and systems and facilities for water , sewage, electricity , garbage
disposal and other services not designated for a particular section.
H. Basements and roof terraces, unless clauses to the contrary appear in the
property titles of the sections.
I. Patios, light wells, ducts and other open spaces.
J. Other assets intended for the use and enjoyment of all owners (Art.40)

All these goods are common because they are essential for the use and enjoyment of all
owners; Doctrine and comparative legislation have always considered that these
elements are subject to the forced co-ownership regime. However, Peruvian law, as
stated, admits its alienation or transfer, which could generate a number of conflicts .

The list contained in the referred section is necessarily illustrative, that is, neither
exhaustive nor definitive; For example, it is obvious that the general entrance door, the
common doors, the crematoriums, the lobbies, etc.; They have the character of common
property, although the law does not say so. This is because the legislator cannot foresee
the development of the technique and its applications to the construction industry ,
which in fact generate new forms and services, not being feasible to be listed.
The soil or terrain on which the building is built is the most important element. The law
expressly indicates its character as a common good (Art. 40, "a"). However, other
legislation admits the possibility that it may belong exclusively to an owner.

Horizontal property has common characteristics with co-ownership, since in the former
certain common assets have the character of forced condominium, but in co-ownership
they can be divisible; and furthermore, co-ownership contemplates "share rights over an
object and each of its parts (one third, one half), but such shares do not engender a
singular or concrete right over a material part of the object. On the other hand,
horizontal property contemplates the ownership and exercise of a right over a material
part of the building; in no case, on ownership".

In short, the property of a department or section is purely and simply an "individual,

unitary property, but with the particularity that it falls on an object that constitutes part
of the whole." It is, consequently, a superposition of parts and not an ideal division of
shares, as in co-ownership.

A. Expressing a single definition of the institute is not possible. Without a doubt we

are witnessing the consolidation of a new type of property. This figure cannot be
confused with co-ownership, nor can it be based on the principles or rules of
horizontal property.

MULTI-OWNERSHIP has to do with COLLECTIVE GROUP ownership IN

SPACE AND INDIVIDUAL PROPERTY IN TIME.

In MULTIPROPERTY "the builder or organizer of a complex intended for time-

sharing 'sells' one or more weeks of enjoyment of a furnished apartment in
conditions of being enabled immediately. In turn, the buyer must return it at the
expiration of the set period, in the same conditions in which it was received.
That is, the purchase is not only of the property, but also of all the accessory
furniture: beds, tables, chairs, sheets, blankets, etc. Sometimes, the operation
also means the enjoyment of common property, such as swimming pools, sports
fields, etc." (Borda) It also includes saunas, club houses, among others.

There are many benefits and advantages of this system. "The timeshare system
means the possibility of enjoying a brief vacation at the desired time and place,
at a very reduced cost , when compared to the purchase of a sole proprietorship.
It also means the possibility of exchanging your time of enjoyment for another
time shared" (Borda)

MULTI-OWNERSHIP is a new real right, different from co-ownership and

horizontal property, which is characterized because several people (multi-
owners or time-sharers) are owners of the same property (generally, real estate,
although also movable) but at different times or time. Each owner has the use or
enjoyment of the property in stages, hence it is clearly different from co-
ownership.

The purpose of the MULTIPROPERTY is to favor and promote tourism ,

recreation and energy-replenishing vacation rest.
 Timeshare is not exclusive to real estate, it is also applied in the regime to
movable property such as "yachts, sailboats, equipment, computer systems and
programs , industrial designs, trademarks and patents, industrial, civil and naval
infrastructures, laboratories, studies legal, notarial, accounting and auditing and
all those things or assets whose use and enjoyment is susceptible to conventional
partition."

Timeshare is a different real right, which must be regulated as an autonomous

real right, distinct from horizontal property and condominium, as well as from
iura in re aliena (use, habitation, usufruct, surface).

B. THE MULTIPROPERTY
C. OWNERSHIP OF THE TOMBS

There is an interesting controversy regarding this sui generis figure. The tombs are
"concessions in cemeteries", where the administration has wanted to consider the
concession as a lease ; but it is not a civil property right, because even when the
concession is perpetual, in some cases it is resolvable, thus precarious when the
displacement (transfer) of the necropolis is ordered. However, in such cases the grantee
is granted a similar right in the new land.

In reality, there is no rule that establishes that it is co-ownership with forced indivision,
although it is true that it is customary to consider mausoleums as family property.
However, in such cases the concessionaire is granted a similar right on the new land.

It is difficult to establish the legal nature of tombs, tombs and mausoleums. There are
several trends:

a. It is said to be sui generis, since its purpose excludes anything other than serving
as a depository for the mortal remains of the concessionaire and his relatives.
b. It is also considered that the act of concession in the municipal cemetery is a
rent, or a lease, depending on whether the concession was in perpetuity or
temporary. Law on Cemeteries and Funeral Services (Law No. 26,298,
published on March 28, 1994).

In relation to the tombs, some characteristics can be established:

1.- These are privately owned assets, whether they are found in private cemeteries or in
municipal cemeteries.

2.- The graves grant a concession of use, temporary or perpetual (Law No. 26,298
establishes in its article 7: "the ownership of the land for graves that have not been built
by the concessionaires in perpetual use, within 1 years after its concession, will revert in
favor of the cemetery").

3.- They are assets that cannot be seized (Cod. Proc. Civ. Art. 648, 8).

4.- It is difficult to know if they are non-seizable and inalienable assets, but perhaps the
tombs located in public cemeteries could be said to have these characteristics.
The repealed Constitution sanctioned the right of every person to a burial and,
considering it a public service, even in the case of not having financial means , they had
to be buried free of charge in a public cemetery (Cons. Art.11). Although it is known
that this principle was never applied. The 1993 Constitution does not include a similar
norm.

In conclusion, in Peru cemeteries are public or private. At the same time, graves are sui
generis assets that grant a temporary right of use (or perhaps usufruct), and are also non-
seizable.

A. OTHER TYPES OF REAL ESTATE PROPERTY

D.1.- THE DOMAIN OF NATURAL RESOURCES

It is not appropriate to speak of property but rather of control of natural resources.

These, as is known, belong to the entire Nation . The Political Constitution expressly
states this (Art. 66).

D.2.- THE IMPERFECT DOMAIN, CONCEPT AND CLASSES.

Peruvian legislation does not contemplate this figure; However, the Argentine code does
refer to it. It is NOT properly a type of real estate property.

It is so called because it appears devoid of some of the characteristics or faculties that it

normally offers and, consequently, the rights of the dominus are diminished or
diminished.

The Argentine code establishes in its article 2,507: Domain is called full perfect, when it
is perpetual, and the thing is not encumbered with any real right towards other people. It
is called less full, or imperfect, when it must resolve at the end of a certain time or at the
advent of a condition or if the thing that forms its object is a property, encumbered with
respect to third parties with a real right, such as an easement, usufruct, etc. ..

Imperfect domain only exists in three cases regulated by article 2,661 of the
aforementioned Argentine code.

a. Trust Domain

In these two hypotheses , perpetuity is affected. The property expires after a

certain time.

b. Revocable Domain
c. Domain dismembered or encumbered with real rights established in favor of
third parties.

This last hypothesis refers to the limitation of the right to use and material enjoyment of
the property – through the dismemberment of some of the attributes – that the owner
supports. They are the real rights over another's property (use, usufruct, habitation,
surface). It is a temporary, provisional alienation. Once the period of time for which the
asset was conferred has ended, it returns to its owner.
These assumptions are regulated by the Peruvian Civil Code.

c. APPARENT PROPERTY

Like the previous institute, it is not actually a type or modality of real estate.

Louis Josserand expresses that the apparent owner is the one who appears, in the eyes of
the public, as if he were the owner of a property that, strictly speaking, belongs to
another person; It is, therefore, one who has the possession of the state of owner without
being invested with that state itself.

This is what happens, for example, with the heir apparent; or also with the acts carried
out by a front man whose power has been revoked, without being authorized to do so.

CHAPTER II

LEGITIMISTIC THEORIES OF PROPERTY

They are those that recognize and accept the existence of stable private property rights.

This topic includes the various theories or currents that explain the foundation of
property law. Some are referred to an individual fact or aspect (occupation theory , work
theory); others, however, are based on a social or collective fact (theory of convention,
theory of law). Theories exist that base property on a sociological and economic aspect;
in the rational and social nature of man, etc.

Let's see each one of them:

1.- THEORIES THAT FOUND THE PROPERTY RIGHT ON AN INDIVIDUAL

FACT

TO. THEORIES OF OCCUPATION

The oldest of all, it appears with the revival of Roman Law. He maintains that there was
a moment or social state (of isolation), in which goods were common and that,
therefore, each man could use what was referred to to satisfy his basic needs (they only
need to extend their hand to appropriate the goods they need. and that they were offered
so abundantly).

This occupation made him an owner. Such occupation, upon the advent of the social
state that replaced the state of nature, "served as a justified title to the right." Its most
notable defenders were Grotius and Pufendorff, from the School of Natural Law. In
fact, Pufendorf signs that there is no precept of natural law that precepts his general
distribution of all assets to signify his share as his own. What natural law does is advise
the establishment of property, when the convenience of human society requires it;
leaving to prudence all things or only some, and whether they should possess them
separately or pro indiviso, abandoning the others to the first occupant, the philosopher.
Once the divine permission was established, man was from then on the right to become
owner of the goods of the earth; But to ensure that the common right of others over the
thing that remained in one's possession was considered to be excluded, some convention
is needed, and the institution of this property, to be in accordance with the maxims of
right reason, is still necessary. originally founded on human conventions.

Also among the supporters of this current we find Burlamaqui, for whom what has
produced property is the taking possession of what has no owner, and that to understand
this we must consider that work increases value , it being fair that the land be it who has
added said value.

This thesis is considered insufficient – even inadmissible because although it explains

the historical origin of the property, it does not serve to provide it with a rational
foundation. Simple occupation does not justify that others have to respect the right of
the first occupant. It is said that property cannot consist of an arbitrary fact whose
stability will only depend on force.

b. THEORY OF WORK

He affirms that labor is the essence of property; ergo this derives from work, as a
reward for it. Man transforms nature by increasing its usefulness. Therefore, the product
of that work must be for the person who did it.

To a certain extent, we can say that this theory is complemented by the previous one,
since for it occupation is not enough to explain property; it only confers possession that
is transformed into property through work.

This theory was born with the economists of the 18th century, in his work Investigation
of Nature and Causes of the Wealth of Nations, Adam Smith says that: The product of
labor is the natural reward or the same. In that first state of things that we suppose to
have preceded the ownership of land and the accumulation of funds, all the product of
labor would belong to labor: in it there was no owner nor another person with whom to
share it by right of lordship or dominion.

The institution of property, limited to its essential elements, consists of the recognition
of the right that each person has to dispose, exclusively, of everything that they may
have produced through their personal efforts, or received from the producers as a gift or
donation. loyal consent, without using force or fraud . The basis of everything is the
right of the products over what they produce themselves.

The English philosopher Johon Locke considered that the product of ours is ours and
consequently the property that is also ours is produced.

Criticism: It is argued, against it, that work does not produce but only transforms. Work
alone cannot grant ownership.

In reality, many other negative reasons are also put forward. It is said that the worker
already assumes the right of property in raw materials, tools , land, etc.; If the worker
were the only basis of the right to property, this could not occur in children or disabled
people (elderly, insane) who would lack the possibility of being owners even in
consumer goods, which is equivalent to denying them the right to subsist. Likewise,
they add their criteria, those goods that are very useful in the way nature offers them
could not be objects of private property. In this line of thought . H. George affirms that
the land could not be the object of private property because it does not come from
human work, it is prior to it and produces fruit without its assistance. Marcel Planiol,
objecting to this theory, has gone so far as to say that it would lead to an inextricable
accumulation of owners. Likewise, the theories of social contract and law have observed
this thesis, stating that work is a fact, and a fact is not enough to legitimize a right.
Rights do not justify rights, they must have their reason for existence in a specific legal
system, whether positive or natural.

2.- THEORIES THAT FOUND THE PROPERTY RIGHT ON A COLLECTIVE

FACT

TO. THEORY OF THE SOCIAL CONTRACT .

Also called social conversation theory, it is based on the assumption that the social
contract, while creating society, institutes or guarantees private property.

He affirms that neither occupation nor work serves as a basis for the right to property,
because it does not oblige others to respect said right. This obligation is only generated
by mutual consent or convention.

Others support this thesis with the variant that, while some believe that the pact put an
end to the community of goods due to its inconveniences, replacing it with private
property, Rousseau supposes that this is prior to the pact, deriving from the work linked
to the occupation and that the agreement was only intended to guarantee it.

In fact, Rousseau, when explaining the passage from the state of nature to the social
state, summarizes his position by saying: Reducing our approach to terms that are easy
to compare: man loses his natural freedom and the unlimited right to everything
whenever he desires and can achieve by gaining instead , civil liberty and ownership of
what you own. And he adds, what is most strange about this alienation is that, far from
the community stripping individuals of their property, by accepting them, it does
nothing other than ensure their legitimate possession, changing usurpation into an
absolute right and enjoyment into property.

In the same way, if it can be legally possible to have something as yours, it must also be
allowed for the whole person to constrain all those with whom he may experience
difficulties to make mine and yours in relation to any object, to that they are situated
with it in the state of society (metaphysical principles of Law. He then adds, But the
rational title to acquire can only be found in the idea of the universal will jointly or
unanimously; idea that is tacitly assumed as an indispensable condition: since a
universal will, truly harmonious, or jointly in its elements for the purposes of legislator,
is the social stage; that is, considering that state and its function, but before its
realization (because otherwise the acquisition would be derivative) as something can be
acquired primitively, and consequently in a provisional manner. Peremptory acquisition
only takes place in a social state.

It is considered that Kant systematized this theory by distinguishing three periods:

a. Preparation Period.- During which man occupies things

 b. Period of Provisional Property.- During which man transformed things with his
work, creating a kind of provisional property on them, but which was not true
property, for not creating in others the obligation to respect it.
c. Period of the social pact.- In which men tacitly agreed to respect their rights over
things, thus appearing definitive and complete ownership.

It is also said that this theory has a double aspect:

a. One individual: occupation and continuous work of the land.

b. Other social: The law that guarantees domain but does not give birth to it.

The first thing that is argued against it is that the convention, if it existed, would be too
weak a foundation for a right as transcendent as that of property. It would be changeable
and random, and what was done yesterday could be undone today, so the property
would lack stability. Another reason given is that said pact would only bind those who
agreed to it, but not those who did not intervene in it, so it would have to be tested at
every step, always being doubtful as to who it bound and those who did not.

Finally, Arnés stated, the law in general is independent of the will, being above the
discretion of people, although that will is recorded in a contract; In the same way, the
right of property cannot depend on conventions, but it is essential that the convention be
in accordance with the law, and the general contract cannot be more than the social
guarantee of the rights of all.

b. THEORY OF LAW

According to this theory, property is a creation of law. Only it can constitute or found it,
providing for the renunciation of all and granting a title of enjoyment to only one.

It states that once society and civil power were constituted, it decreed, in the interest of
all, the capacity of each person to achieve exclusive possession of goods and established
the conditions of this appropriation, and from then on the right of property began to
exist. private.

This thesis is very similar to the previous contractual one, since the law is more than the
expression of the common consent of the associates.

Among its defenders stand out Montesquieu J.Bentham, Bossuet; revolutionaries of the
stature of Mirabeau, Robespierre and others.

Montesquieu, supporting it, says: Just as men have renounced their natural
independence to live under political laws, they have also renounced the natural
community to live subject to civil laws. The first of these laws granted them freedom;
the latter the property. That is to say, man gives up his initial freedom to submit to
political laws, ensuring his freedom and property with them.

Sale, for its part, expressly. The law does not say to man "Work and I will reward you,"
but it tells him, work and the fruits of your work, this natural and sufficient reward,
which without me you could not keep, I will assure you the enjoyment of them,
containing the hand that would like to take them away from you, If the industry creates,
the law is what preserves. If in the first moment everything is due, the other moments
everything is due to the law. He adds that to better understand the benefit of the law, we
will try to form a clear idea of natural property, and that it is solely the work of the law.
But his thoughts are summed up in this famous phrase. Property and law were born
together and will die together. Before the laws there was no property; Laws are
abolished and all property disappears.

It is argued that the law will serve to recognize property, an impressive result to believe;
It does not explain what the right of property is, nor how it was born. The right to
property, like any fundamental right, would be prior and superior to positive human
law. In support of this criticism, the words of Leo combine it with the common good.

It is also stated that this theory, instead of founding the right to property, destroys it,
since on the one hand, people who were not subject to the same human law that had
created that right would not be legally obliged to respect it, the same law is say the
public powers could suppress them.

THEORIES THAT FOUND THE PROPERTY RIGHT IN A SOCIOLOGICAL

AND ECONOMIC ASPECT

TO. SOCIOLOGICAL AND ECONOMIC POSITION.-

Among those who support this thesis we find the founder of modern sociology .

He maintains that the selfish characteristic of primitive industry tends to transform,

since existence, ceasing to be individual, begins to be social; Even in existence, ceasing
to be individual, it begins to be social, even in the domestic stage. This transformation,
he adds, cannot be scientifically appreciated other than by establishing two correlative
laws unknown until now, relations with material existence. Their natural combination
constitutes the positive theory of accumulations.

Of these two economic laws, one is subjective and the other objective, since they refer
to ourselves and the outside world, respectively, and consist of these two general facts:
each man can produce more than he consumes, the products obtained can be preserved
longer than that requires its production .

Another supporter of this theory says that property is the absolute right of a man over
the product of his efforts on the things to which he is the first to provide value and to
which he gives a lasting form and grants productivity. permanent. And he ends by
saying that what constitutes the supreme reason for property in general and for
territorial property in particular, what gives it an unbreakable basis, is the interest of the
entire society.

THEORY THAT PROMOTES THE RIGHT OF PROPERTY IN THE

RATIONAL AND SOCIAL NATURE OF MAN

TO. THEORY OF HUMAN PERSONALITY

It acquires this for whom man, by his nature, has in instinct the right, the property, the
morality . For this reason, man finds it within himself with the acts of conscience to
want the right, the property, the State and adds my will in the property is personal and
the personality and the person is an individual being from which property becomes the
exclusive of this will. Whenever I, through property, give a determined essence to my
will, it matters that the property also has a determination and that this is the most. In this
is the strongest reason for the need for private property.

b. THEORY OF CATHOLIC THOUGHT.

This is based on natural law , conceived as a participation of the eternal law in the
rational creature. Therefore, state activity must be limited to recognizing, regulating,
guaranteeing and sanctioning property taking into account its social function.

This doctrine aims to be located in an intermediate situation between individualist

theories and societies or collectives, since it includes elements, one individual and the
other social. The latter serves to reject the idea of property in an absolute
complementary manner.

Among the legitimate ways of acquiring property or immediate titles, the domain over
concrete goods, he adds, stand out in the occupation of the good that does not have an
owner and the work or specification, that is, the activity of man is legitimately awarded
the fruit of his job.

For the State it does not have the right to arbitrarily dispose of that function. He adds
that the natural right to privately own and transmit property through inheritance must
always remain intact and inviolable. He maintains that nature itself established the
distribution of goods among individuals so that they are useful to men in a safe and
determined manner and affirms that the wealth incessantly increased by social economic
growth must be distributed among people and classes.

The main arguments given by the Catholic school are:

1. Private property is a universal and permanent institution that progresses in

parallel with the culture of men, it has always existed and in all peoples.
2. Nature has assigned material goods the purpose of satisfying human needs,
which requires that these can be acquired by man as private and stable property.
3. Material goods have been given by nature to man so that by using them in a
manner in accordance with his dignity and his natural aspirations, he may
provide not only for his own conversation and improvement, but also for the
good of his family.
4. Man has a natural right to the fruit of his labor, which can only exist through
private property.

Furthermore, Catholic theory returns to the ancient hypothesis that affirms that property
has existed since the beginning of history, against the generally accepted criterion that
primitive property has been collective and also maintains, erroneously, that private
property is the only means by which How can material goods fulfill their purpose, when
it is known by all that the vast majority of people lack their needs satisfactorily.

THEORY OF THE SOCIAL FUNCTION OF PROPERTY

BACKGROUND :

As we have repeatedly expressed, as a result of the French Revolution, the Roman

conception of property taken to the extreme once again prevailed.

However, this extreme liberal trend soon came into crisis because it was considered that
the law could limit the powers of the owner. Thus, it appeared with another conception
that subordinated it to collective interest.

THEORY OF THE SOCIAL FUNCTION OF PROPERTY

From that moment on, dominion is justified not by the benefits obtained by the
dominator but by those that society derives from its existence or maintenance . The
defenders of this current considered it the most important milestone in the evolution of
the concept.

Many authors do not discuss social character. Although they insist on not separating it
from the individual or natural aspect of the property. Such is the case, both of the
positive and of Catholicism.

State positivism usually places its foundation in the legal norm of the State or, with a
broader formula, in mere social utility.

VARIANTS OF THE THEORY

In this social theory of property, we can basically distinguish two variants: one that
considers that property is a social function, and another that affirms that property fulfills
a social function, both of which certainly have differences.

That current that considers that property fulfills a social function both certainly have
differences.

Those currents that consider property as a social function, in reality, do not have major
followers. The reaction to the publication of the law has occurred on the side of private
law, reiterating the subjective nature of the domain, arguing that property does not
constitute a social function, the fact of having goods can naturally serve the exercise of
the function. but it is not in itself, properly speaking, a function. If not, what is different,
a function of this nature must be fulfilled, which is reprehensible to the confusion
between property and the company it serves, its intended identification as a social
function and not as a subjective right. This current considers that it is up to the State to
settle, regulate property, any conflicts that arise between public and private interest.

The second variant, the one that argues that property fulfills a social function, is the one
that enjoys the greatest popularity. The characteristic of this current is that it imposes
duties since its employment and function are not left to the discretion of the owner in
the interest of an individual.

THE SOCIAL FUNCTION

It is a formula of harmony that attempts to harmonize the interests of the individual with
those of society as a whole, preventing the exercise of the owner from undermining or
affecting in any way the common good. It is based on the freedom of the individual and
the powers that property grants, with the obligation to use it in a manner convenient to
the social interest. Social function can be limited to ownership but can also be actively
determined.

FOUNDATION OF THE SOCIAL FUNCTION

The basis of this social function of property is in the fulfillment of purposes aimed at
the greatest increase in production, for the benefit of the entire society, considered for
these purposes fundamentally as a group of families and which entails at the same time
in an aspect general repugnance to human personality.

It is therefore a social interest that bases the right of property but a social interest based
on the need, always pressing and universal, to increase production to achieve greater
perfection in the satisfaction of the needs inherent to the family.

THE CHANGE OF OWNERSHIP OF THE FINANCIAL YEAR

In this regard, a consistent transformation occurred in the exercise of rights.

CONTROL OF THE EXERCISE OF RIGHTS.

It was conceived that the exercise of subjective rights as an act of individual liberality
did not fulfill the objective of ensuring everyone the effective possibility of exercising
their rights.

The profound economic and political transformation of the legal systems put these
typically liberal values in crisis and gradually affirmed the theory of abuse of law as a
controlling mechanism for the exercise of rights.

The transition from ownership that implies lordship or free action to activity is one of
the most notable phenomena that has been observed in recent times in the field of
justice.

PROPERTY AND ECONOMIC PROCESS

Another characteristic that has been observed is the insertion of property in the
production process that marks a transition from static property to property organically
and instrumentally incorporated into economic activity. Here a Copernican turn has
occurred: property, which in the codified system included economic activity as an
activity for the exercise of rights, has gone from container to content when it is
considered one of the means that economic activity serves to achieve goals. its purposes
or in other words as the element of heritage, establishment, exploitation or, if you want,
company in an objective sense.

THE NEW PROPERTY.

As a consequence of this evolutionary process, a new image of the domain appears. It
could be defined by pointing out four fundamental features: pluralism, social connection
or relationship, disconnection from the idea of freedom and activity or exercise as part
of regulation.

PLURALISM.

It is a consequence of the diversity of special regulations issued to mitigate the effects

of the individual via intervention and generally based on the characteristic peculiarities
of certain types of goods, state intervention that is currently reduced to its minimum
expression.

Pluralism raises problems related to the determination of the specific characteristics of

the property in each of the types, the interconnection between them and mainly in order
to the conflict between the interest of the owner and the interest of the community
represented by the State.

THE SOCIAL INTEREST.

The social character of the domain came from a radical change in the relationships that
exist between individual and state demands. Accepting the social function as a central
aspect of property means that it is presupposed by its possible correlation to a non-
individualized end so that this connection becomes the foundation of the right to
property.

REVIEWING THE RELATIONSHIP BETWEEN LIBERTY AND PROPERTY

The old idea that freedom and property required each other is today questioned
philosophically and economically and is a simple methodological damage; strictly
speaking, property could never ensure equality or the well-being of many people who
have lived freely without property. It can even be said that private property now
contradicts freedom itself.

It is concluded that currently, neither private property confers freedom to individuals

nor is the exercise of property rights in the proper sense an exercise of freedom. At
most, it will be said that the owners of the assets have more secure freedom, in the sense
of the possibility of choosing their means of life. Although this is a rather restricted
connotation only transcendent in the capitalist system.

OWNERSHIP AND ACTIVITY OF THE DOMINUS:

The conception of the social function that subordinates the individual to the community
is based on the emphasis that is now placed on the exercise of the right and not on
attribution.

It is stated that this phenomenon has altered the concept of good and certainly the notion
of property as a type of right over goods.

Today there is an insertion of ownership in the economic process of production or

exchange of goods and services and has finally generated a process of ownership where
the exercise takes precedence over attribution and in which it produces a dialectical
relationship between ownership at the point of force. is to make a separation between
ownership and control of wealth ideas that codification considers inseparable.

CHAPTER III

THE CONSTITUTIONAL REGULATION OF PROPERTY

THE CONSTITUTIONAL SYSTEM OF 1933:

The positive regulations in the Peruvian constitutional text of 1933, in matters of

dominion, were quite deficient. It included property within the Constitutional
Guarantees – national and social.

The Constitution of 1933, following the trend of its contemporaries, already established,
on the other hand, the subordination or conditioning of property to the fulfillment of the
social function.

In a very synthetic way, we can summarize its most characteristic notes.

a. He defended, in principle, private property, as long as it contributed to the

realization of the needs of the nation and the common good, this is with the
understanding that it was subordinated to the fulfillment of the social function.
b. Although it provided for the inviolability of property, it admitted its deprivation
when it was a case of public utility and was preceded by fair compensation.

THE CONSTITUTION OF 1979:

The previous Constitution also recognized in principle, with crystal clear clarity, the
right to private property. Despite the mitigating norms it contained, it can well be said
that its spirit was liberal.

In the parliamentary debates, the presence of topics such as: respect for inviolable
private property, articulating it with its social function, could be observed; the
mechanism of expropriation as a sanction technique (deprivation of property), in which
case prior compensation in money had to be given. A kind of plurality of properties,
especially when accepting the various forms of it created mainly during the previous
regime of 1968-75.

THE CONSTITUTION OF 1933. PROPERTY FEATURES:

The Constitution more openly deepened the orientation towards a clearly liberal
Philosophy . The social role that it was supposed to fulfill has disappeared,
expropriation is practically impossible to apply; Natural resources can be granted to
individuals. From that perspective, the domain presents some innovations in terms of its
characteristics.

a. The right to property is sufficiently protected, since after the formulation of this
constitutional precept it establishes the origin of the amparo action.
 b. Property as a personal right.- In principle, property was considered a personal
right, providing that every person has the right to property. Well, it considers
Property as inherent to the personality of man, as a continuation or projection of
it. Private property perhaps implies a good or an advantage that must be
accessible to everyone. Because it involves even in the current political-social
stage a value of freedom, albeit economic freedom. In the order of civil law this
means that the owner has the right or power to use, enjoy, dispose of and reclaim
an asset that belongs to him. Naturally, she must exercise in accordance with the
limitations established by law.
c. Inviolability of Property.- In principle, private property. It is even considered
inviolable following here the most ancient liberal tradition that comes from the
declaration of the Rights and Duties of the Citizen. This property, however, must
be oriented towards the common good to benefit the community. Consequently,
the owner continues to have more complete rights over an asset.

PLURALISM OF PROPERTY.- The constitution of 79 explicitly regulates various

modalities or forms of Property. Referring to when the State was allowed to promote
access to property in all its modalities. The property relations that Peru offered and that
necessarily had to be reflected in the Constitution. Thus we have that a social property
had appeared, the industrial community, the cooperatives . Hence, the constituents of
'79 had no alternative but to recognize them, although in a rather difficult way. The
1993 Constitution reiterates the principle of economic pluralism, when it speaks of the
coexistence of various forms of ownership and business, however, it no longer makes
clear reference to cooperative companies . What can be stated is that the State no longer
encourages them, it prefers private ones.

ESSENTIAL CONTENT OF THE PROPERTY

The Peruvian Constitution recognizes the right to private property, among the rights of
the citizen. These laws may not reduce their content, it will be the responsibility of
ordinary laws. The essential content of property constitutes, on the one hand, the
criterion that must allow us to distinguish between the configuration of rights and their
deprivation or ablation.

The concept of core or essential content protects private property.

CONCEPT OF PROPERTY

The constitutional text brought certain elements that made property a light but not
totally liberal or individualistic concept. However, we noticed a contradiction there,
because while on one side the social function of property was established and it was
located not only as a right but fundamentally as an obligation, on the other side when,
by exception, sanctions were imposed for failing to comply with such requirements, it
was required which was prior to the payment of compensation money, which
undoubtedly made the expropriation practically very difficult to apply.

Well, the 1933 Constitution overcomes this contradiction with an individualist solution,
which requires the same compensation in cash but no longer considers it social. It can
be said that it is coherently liberal
EXPROPIATION AND LIMITATION OF THE ESSENTIAL CORE.-

The core or essential content constitutes the barrier or border of expropriations so that,
although it guarantees property, it violates the obligations it has. That is to say, as a
consequence of the deprivation of property, an alteration occurs in the aforementioned
essential content of the domain. Numeral 70 prescribes that no one can be deprived of
their property unless the law is declared and after payment in cash of just-precise
compensation.

to. It must be for reasons of national security or public need.- The repealed
Constitution established, along with public need and utility, the cause of social interest.
Regarding the first element, necessity and public utility, it refers to the operational
requirements of the administration . The current Constitution reiterates the notion of
public needs but ignores public utility and, what is more important, social interest. The
second factor collected is that of national security, which refers to extreme cases of
emergency that are not very common in others.

b. Qualification According to Law.- This implies that the expropriation measure must
be legally classified, so a law must provide it.

c. Prior cash payment of the fair compensation.- In this aspect it is criticizable. Here
we speak simply of prior payment of the just-precise compensation.

SPECIAL LIMITATIONS ON PROPERTY.-

The Peruvian state can establish some limitations and prohibitions

specific restrictions on certain assets, for reasons of national security.

PUBLIC PROPERTY.- Public domain assets are inadmissible and imprescriptible.

Goods for Public use can be granted to individuals in accordance with the law for their
economic use. Public goods whose use belongs to everyone are not the subject of
private rights. In the Constitution of '73 it maintains that goods for public use are for the
use of everyone, as then they can also be for private use.

Read more: http://www.monografias.com/trabajos15/derecho-propiedad-peru/derecho-

propiedad-peru.shtml#ixzz3nAMmhwy3