Is ownership of real estate and the buildings on it separate?
No. However, it is possible to create separate ownerships of the surface, sub-stratum and airspace (including buildings) of land by a combination of freehold and leasehold estates.
Real property comprises the land, buildings, constructions and other structures attached to it that, if removed, would damage the property. Thus, ownership of real estate entitles the owner to everything that the land produces and that is adjoined or incorporated to it, whether naturally or artificially.
Generally, title to real estate is not separate from title to the buildings, they automatically follow ownership of the land. In this regard, land and constructions are recorded together with the Public Registry by means of the corresponding public deed evidencing ownership of the real estate. Some States, however, acknowledge in their Civil Codes the right to acquire and register land and buildings separately, according to specific rules that may vary from State to State (eg. Nuevo León, Morelos, Querétaro, Guanajuato, Jalisco and Puebla). Furthermore, other jurisdictions may allow to waive the inherent right of an owner to own the constructions on their property, in which case, a co-ownership would exist.
In principle the ownership of buildings on real estate automatically follow the ownership of the real estate. The exception is a rights of superficies that gives the holder the right to own or to acquire structures, works and plants in, on or above the real estate.
Ownership of buildings normally follows ownership of land. However, if the access to land is established through a ground lease, Norwegian law allows separate ownership to the buildings under the Ground Lease Act.
This legal construction is politically controversial, and the Ground Lease Act has been tried before the Supreme Court and the European Court of Human Rights several times over the last 10 years. For commercial property it is important to be aware of clauses regarding regulation of land rent, valuation clauses for assessment of buildings when the land lease expires, and the right to extend the ground lease period.
Yes, ownership rights of real estate and buildings are separate – while a land plot and the buildings erected upon it are usually registered in the same land book, the owner of the land does not necessarily need to own the buildings erected upon it, but the building owner must have a superficies right or similar proprietary interest in order to own buildings constructed upon another party’s land.
Ownership of land plots and that of buildings on them are recorded in the Realty Registry separately.
If a land plot and a building located on it are owned by the same owner, they may not be sold separately, i.e., the land plot may not be sold without the building and vice versa.
For historical reasons, it is quite common for the owner of a land plot (usually the state) and the owner of a building on it to be two different owners. In such situations, if the building is sold, a new building owner simultaneously acquires the same right to use the relevant (part of the) land plot occupied by and surrounding the building on the same terms and conditions as the seller (previous owner). Consequently, the right to the land actually follows ownership of the building located on that land.
Ownership of a real property includes, by legal definition, all buildings present on that property. When transferring real estate, as a general rule, the land and all buildings erected upon it automatically follow the transfer of the ownership to the buyer, without any need for specific contractual regulations in that regard.
Some exceptions to the general rule do of course exist. For instance, a site leaseholder automatically owns all buildings on the property upon which the site leasehold is granted, and the property owner must compensate the site leaseholder for the value of the buildings upon termination of the site leasehold. A similar situation occurs when buildings are erected by a land leaseholder, in such case the building is separately owned by the land leaseholder and is legally not a component of the real property unit on which it is placed.
In a freehold ownership, the ownership of a building located on a specific plot of land automatically follows the ownership of such plot. This is also the case, to a certain extent, in the condominium type of ownership, where each owner of an apartment or of part of the building is also a co-owner of the plot of land on which the building is constructed.
On the other hand, in the building lease ownership, the land and the building on it will have different owners.
Unless otherwise provided, the ownership of real estate includes the usable land above and below. Within the scope of this without prejudice to the legal limitations, property, buildings, plants and resources are within the scope of the real estate. In accordance with the principle of superficies solo cedit, anyone who owns a real estate is also the owner of building which is not movable or non-permanent. On the other hand, there are some exceptions to this rule such as construction right or natural source rights which are explained in details in Q4.
The Brazilian legislation establishes that a real estate includes the soil and all elements incorporated thereto – either naturally or artificially. Legislation further establishes that every building on a plot of land has presumably been made by the owner at his expense, unless evidence demonstrates otherwise.
As long as performed in good faith, if one builds something on somebody else's land, he loses the buildings to the lawful owner, but will be entitled to proper indemnities.
Not unless otherwise agreed. Buildings are treated as part of the land and transfer with it unless otherwise agreed. For example, it is possible to carve out a specified block of airspace and the buildings structures within it from a transfer of a fee estate or the grant of a lease. Doing so is unusual, and potentially problematic, as it can affect the marketability of the property, and where it is necessary to do so, this is typically achieved by granting separate leasehold interests or subjecting the fee interest to a condominium structure.
Not unless otherwise agreed. Buildings are treated as part of the land and transfer with it unless otherwise agreed (for example, it is possible to carve out a specified block of airspace and the buildings structures within it from a transfer of a freehold or the grant of a lease). However, it is unusual (and frequently problematic) to separate ownership of the land and the buildings at the freehold level and where it is necessary to do so, this is typically achieved by creating separate leasehold interests out of the freehold interest.
Bulgarian law allows for different persons and entities to own the land and separately - the building(s) on it.
The owner may cede to another person the right to construct a building on its land, whereby the other person becomes owner of the building. The owner of the land may also transfer independently from the land the ownership of an already existing building. Ownership of a building independently from the underlying land may also be created through voluntary partition.
The general rule is however that ownership of a land extends over any buildings erected on it. The owner of the land shall be the owner of the buildings and the plants on it, except for the cases when something else has been agreed upon.
In a community of condominium owners, the owners of the flat(s) / other parts of the building may have also joint ownership of a portion of the land, which is a common part of the condominium in this case. In the case, when on the same land there are multiple buildings –each with different owner(s), then all of the building owners may own the land as a community of condominium owners.
Ownership is considered global and is extended in theory to everything on the land, above and under the property unless expressly structured otherwise.
Ownership of the real estate and the building may be separated in the context of a volume division as described above. When consisting of a mere division between the ground and the surface of the property this is known as a ‘surface right’ (droit de superficie) where the ground and the surface are owned separately in freehold.
Note also that under a ground lease as mentioned above, the leasehold tenure will include an in rem interest on the building to the benefit of the tenant which will temporary divide the ownership of the land and the buildings erected on it.
In general, ownership cannot be established upon single buildings. In a nutshell: the owner of the land owns the buildings built on it subject to the below.
Further there is no real equivalent to the concept of proprietary interest enshrined in Common law existing within German law. However there are institutes existing which can be described as "proprietary interests", the most important are the following:
- Absolute Ownership: An absolute owner of a plot of land has the property rights regarding the surface and the space above and below. Further he has the property rights concerning all buildings erected on his land. The absolute ownership can be exercised by several people as co-ownership.
- Condominium Ownership: For a condominium ownership it is necessary that an apartment or another definable unit of a building has been declared as a Condominium under the Condominium act. In that case an absolute ownership upon the Condominium can be awarded. The owners of the condominiums in a building are sharing the ownership of common used areas.
- Heritable building rights: The absolute owner of a plot of land can grant such a right to a third person under the Heritable Building Rights Act up to 99 years. The person then is entitled to erect a building on the land and is owner of the building, thus the owner of the land remains in his position.
Ownership of a building is not separate from the ownership of land. Owning a unit in a multi-storey building in Hong Kong means that the owner owns a portion of the undivided shares in the land such that the owner and the other co-owners of the same building hold the Government lease of the land on which the building has been constructed. Such undivided shares will be expressed to be attached to the right of exclusive use and possession of a relevant premises in the building. Likewise, full ownership of a building will mean the owner owns all of the undivided shares in the parcel of land on which the building is erected.
Not unless otherwise agreed. Anything existing on the land forms part of it and is transferred with it unless otherwise agreed.
It is possible to separate ownership of the land and the buildings by creating a ground lease ("derecho de superficie").
The ground lease gives a person the right to build on someone else's land and to have separate ownership of the building for a certain period of time while the owner of the land retains ownership over the plot. In order for the ground lease to be enforceable, it has to be granted in a notarial deed before a Notary Public. The different Administrations (Local, Regional and State) routinely use this system to promote building, especially in business or industrial parks, by granting a ground lease to private developers to build on land owned by the Public Administration.
When the ground lease is granted by private individuals or companies its term can be up to 99 years.
Upon expiry of its term the owner of the land will retain ownership of everything that may have been built upon the land without having to compensate the grantee.