SYSTEM FOR TRANSFER OF REAL PROPERTY .
By: Andrew Chang Guillermo Hernández (*)
acquire a property (a house for example), according to our legal system proves to be simple yet risky, so today will discuss the form and manner in which it can buy property property. This is because to buy a property just simply the expression of intent, this is just simply an agreement (contract) simple verbal or written transfer, without additional formalities as a public deed or registration to operate effectively the transfer of the property .
However, this system, typical of the French system of transfer of ownership in our country has brought many problems, since unfortunately there are cases where a landlord disposes of the same goods to more than two people, ie sells the same While two people, so discuss the formalities required to acquire goods safely.
In fact, according to Art 949 of the Civil Code (CC) "The only obligation to dispose of a particular property owner makes it to the creditor, unless the different legal or otherwise agreed," that is to alienate (transfer) a property is no longer required formality that voluntary agreement, and now this meeting of minds in the law is manifested, inter alia, by a contract, so must comply with article 1351 of the CC with respect to the notion of contract and "The contract is an agreement between two or more parties to create, regulate, modify or terminate a legal relationship assets ", and likewise we have a contract for its effectiveness only requires voluntary agreement, as expressed in Article 1352 which provides that "Contracts are perfected by the consent of the parties, except those who also must observe the manner prescribed by law on pain of nullity," and as mentioned above transfer of immovable property does not require any formalities. Remember that paragraph 4 of Article 140 of CC also provides, "For the validity of the act's enforcement of the prescribed form under penalty of nullity"
However, this system has created a confrontation between the traffic law, it is promote, and legal security is compromised when a buyer, in some cases, not sure if your seller has sold the same property to another person before. For the only way to know to verify the information contained in the Public Registry, however, transfer your registration is not required, to be valid, so a person can own a house, but in the records may include as another owner. For Ejm. Martha Lucio sells a property, but is not registered right in the public records, but according to the Arts. 140, 948, 1351, 1352 proves to be the new owner, but Lucio (so to appear in the Registers) is listed as the owner in the records.
being so our system of acquisition of property relation to its inclusion in the Public Registry, is a declarative as opposed to other German, Austrian or Swiss in which registration in the Register is constitutive of law.
In this regard in order to feel safe when purchasing a property is recommended to first make a study of securities (which involves inquiring about the ownership of the property, liens and charges it, etc) and try to observe the formalities provide security to the transaction and transfer agreement must be made by public deed and registered at the Public Registry. Well if the good is sold to several people, there is what the civil law heritage known as concurrent creditors and should be applied as provided in Section 1135 of the CC, which gives preference to the creditor in good faith whose title has been ranked first or, in the absence of registration, the creditor is entitled to an earlier date. It is preferred, in the latter case, the instrument consists of a certain document dated older.
* Professor of the Universidad Privada San Juan Bautista
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