Is ownership of real estate and the buildings on it separate?

Real Estate (2nd edition)

Cayman Islands Small Flag Cayman Islands

5.1 Not unless otherwise agreed. Real property includes land, all things growing on the land, buildings and other things permanently affixed to the land.

5.2 Title to real property is registered as one. However, by using strata titles, volumetric plans or leases, separate interests can be created with respect to land and within a building.

France Small Flag France

The basic rule under French law is that where a person is the owner of land, it is the owner of any buildings on the land, the owner of the air space above the land "up to the sky" and the owner of the soil and subsoil "down to the centre of the earth".

Ownership of the real estate and the buildings 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 ground upon which the building are to be erected this is known as a ‘surface right’ (droit de superficie) where the ground and its 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 buildings to the benefit of the tenant which will temporary divide the ownership of the land and the buildings erected on it.

Germany Small Flag Germany

See previous answer.

Hong Kong Small Flag Hong Kong

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 premise 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.

Hungary Small Flag Hungary

As a general rule, ownership of a superstructure belongs to the owner of the underlying land. Nonetheless, the developer of the superstructure and the land owner may conclude a written agreement in order to establish the developer’s separate ownership right over the superstructure. In this agreement, it is recommended to regulate the land use right of the owner of the superstructure.

In addition, at the discretion of the real property owner, the superstructure and the land on which it stands may be entered in the real estate register as separate properties.

Spain Small Flag Spain

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.

India Small Flag India

Buildings form part of the land on which they are constructed and the ownership of the building vests in the owner of the land, unless there is an agreement to the contrary.

In case of common ownership, please refer to the previous response.

Ireland Small Flag Ireland

Real estate in Ireland comprises all immovable property. This includes land and any buildings or fixtures on the land. No distinction is made between title to land and title to buildings where they are in the same ownership. Typically, the owner of land is also the owner of any buildings erected on the land.

Russia Small Flag Russia

In Russia, land plots and buildings are separate real estate objects. Therefore, ownership and other proprietary interests are also separate with respect to land plots and buildings. However, in principle Russian law aspires to ensure that the same person has ownership or lease rights both to the underlying land plot and the building located thereon.

Switzerland Small Flag Switzerland

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.

United Kingdom Small Flag United Kingdom

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.

United States Small Flag United States

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.

Peru Small Flag Peru

The general rule contained in the Civil Code establishes that everything that cannot be separated without destroying, damaging or altering the property is an integral part thereof and cannot be subject to unique rights based on the accessorium sequitur principle, according to which an accessory thing goes with the thing to which it is accessory or principal asset.

That said, a surface right allows the surface owner to own the construction built on or under the land which ownership is retained by the land owner. This right constitutes an exception to the accession rule. Likewise, the exclusive property and common property regime, applicable to condominium property, allows the owners of the exclusive units built above or below the land to own them without being exclusive owners of the land.

Mexico Small Flag Mexico

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. The legal consequences of building on someone else’s property will depend on whether the parties acted in good or bad faith.

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 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 (i.e. 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.

 
 
 

Italy Small Flag Italy

In principle, an entity owns both the land and the building(s) on it and, in particular, the owner of the land on which a building is to be erected will also acquire the ownership of such building, once erected, by operation of law.

This rule is derogated in case a superficies right (diritto di superficie) is granted to a person different from the owner of the related land, in relation to a building either already existing or to be built.The holder of a superficies right is entitled to use and dispose of the building as its sole owner, e.g. by granting rights to third parties or even by transferring the building (and the related superficies right).

A superficies right can be either temporary (i.e. having an expiry date) or perpetual. In case of temporary superficies rights, upon the expiration of the relevant term the right ceases, and, notably, all rights granted to third parties by the holder of the superficies right cease, and the ownership of the building is transferred to the owner of the land by operation of law.

Turkey Small Flag Turkey

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.

Cyprus Small Flag Cyprus

The buildings on real estate are part of the ownership of the owner of such real estate and pass to a new owner when the real estate is conveyed. No separate title is issued for the buildings on immovable property. If buildings are erected on land, the owner applies for the update of the title deed of the land so as to properly state the existence of buildings.

Japan Small Flag Japan

Ownership of land and buildings on the land is separate. Accordingly, it is possible to own a building on land owned by a third party. In such a case, the owner of the building needs to have leasing right to, or other legal grounds for owning a building on, the land.

 
 
 

Thailand Small Flag Thailand

Yes, the ownership of real estate and the building on it can be separate.

The CCC provides that the owner of the property shall be the owner of the component part attached to such property; provided that such component part is attached to the property so that they are inseparable without having to destroy the component part. The building erected on the land is a component part of the land. However, there are cases where the building erected on the land is not a component part thereof, for example:

(i) where the lessee constructs a building on the land it leases, without providing that the ownership of the building will be transferred to the lessor who is the owner of the land.

For this case, the separation of the ownership can only be confirmed through the lease agreement.

(ii) condominium pursuant to Condominium Act 1979 where the ownership of each unit is separate from the ownership of the land.

Greece Small Flag Greece

Landowners also own any building thereon. However, in case of horizontal ownership, apartment owners are co-owners of the land thereon.

The right to a real estate diverges from the right to a building constructed thereon in the case of “surface right” on public property, where the right to building is conferred to a third party who is not the owner of the land (article 19 of law 3986/2011, as amended).

Bulgaria Small Flag Bulgaria

Yes, it is allowed different persons/ entities to own separately the land and the building(s) on it.
The owner may establish in favour of another person the right to construct a building on its land, whereby the other person becomes owner of the building. Also, the owner of the land may transfer independently from the land the ownership of an 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.

Brazil Small Flag Brazil

As a rule, real estate includes both the land as well as all that becomes unites to it, either naturally or artificially (right of accession). Exceptions to the accession rule may apply, such as surface rights and slab rights (“direito de laje”).

Surface rights creates a temporary separate ownership of the land surface. Pursuant to it, grantee shall have the right for a limited period of time to build, plant and maintain such building/plantation over a third parties’ property as if a proprietor of the surface of that land, being grantee allowed to use, enjoy, dispose, protect and reclaim the surface for as long as his right lasts, save for any exceptions set forth in the respective deed.

After the surface right’s term, the improvements on the property are consolidated into the original land owner’s name, regardless of any compensation, unless stipulated otherwise by the parties.

Slab right, in its turn, is an autonomous in rem right to the lower or upper surface of a base construction in order that grantee maintains a separate unit than the originally constructed upon the land, encompassing the air space or subsoil for construction or use with separate record at the relevant real estate registry office and, as so, transferable to third parties.

The grantee of the slab right may possess, enjoy, reclaim and dispose of the property use, shall respond for the taxes and charges deriving from its units and may assign its unit surface for a new surface right, as long as duly authorized by original construction owner and in observance of the zoning applicable rules.

Sweden Small Flag Sweden

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.

Indonesia Small Flag Indonesia

In the absence of any specific arrangement, a land owner will be deemed the owner of any buildings constructed on the land. However, Indonesian law recognises the horizontal separation principle (asas pemisahan horizontal) which allows the land and the buildings on it to be owned separately. For example, a person leases vacant land and under the lease agreement they are granted the right to own any buildings they construct on the land during the lease period.

Updated: June 5, 2019