Building or planting on someone else’s soil: who keeps the work

It is the accession of movables to immovables: Subsection One of Section Two of Chapter II of Title III of Book Three of the Civil Code of 2020, Articles 757 to 766, preceded by Articles 755 and 756 defining the right of accession. It settles one of the island’s most common land fights: who keeps what was put up where it should not have been, and who pays whom.

It applies to whoever builds, plants or sows on another’s soil, to the owner of that soil, and to a third party owning the materials, plants or seeds used. The good-faith builder’s remedies in Articles 761 and 762 additionally require that the work was done with the corresponding permits.

• Overcoming the presumption in Article 758: works, sowings and plantings are presumed made by the soil’s owner and at their cost until the contrary is shown.Verified against the official source
• Proving good faith, because every remedy depends on it: the party in bad faith loses what was built with no right to indemnity.Verified against the official source
• Having built with the corresponding permits, an express requirement of Articles 761 and 762 for the good-faith builder.Verified against the official source
• For the reverse accession of Article 762, that what was built have a value considerably greater than the soil’s.Verified against the official source
• To remove another’s materials, that they can be removed without impairing the work built and without the plantings, constructions or works perishing.Verified against the official source

• Title to the soil, because the rule in Article 757 rests on who the owner is.
• The corresponding permits for the work, which Articles 761 and 762 require of the good-faith builder.
• Evidence of the work’s cost and of its current value, because Article 761 sets the indemnity at the average between the two.

1. 1

   Step 1: The starting rule: the soil takes everything

   Article 755 says that ownership of property gives, by accession, a right to everything that unites or is incorporated to it, naturally or artificially. Applied to land, Article 757 translates it bluntly: what is built, planted or sown on another’s soil, and the improvements or repairs made on it, belong to the owner of the soil, subject to what this subsección provides. That last clause is what opens the door to everything else.

2. 2

   Step 2: And the presumption to overcome first

   Before arguing indemnities you must get past Article 758: works, sowings and plantings are presumed made by the owner and at their cost, until the contrary is shown. Whoever built and wants to be paid carries that burden.

3. 3

   Step 3: If you built in good faith and with permits

   Article 761 gives the choice to the landowner, not the builder: they may make the work their own by paying its value, the amount being the average between the cost and the current value, or they may compel the builder to pay the price of the land. The Code fixes the averaging formula; we neither invent nor interpret it.

4. 4

   Step 4: If you sowed or planted in good faith

   Article 760 separates sowing from planting. The soil’s owner may make the sowing or planting their own, after indemnifying the necessary and useful expenses as well as the expenses in improvements of pure luxury or recreation established in the Code; or compel the person who planted to pay the price of the land, and the person who sowed, the corresponding rent. Planting and sowing do not end the same way.

5. 5

   Step 5: Reverse accession: when the builder keeps the land

   Article 762 flips the rule. Where what was built in good faith and with the corresponding permits on another’s soil has a value considerably greater than the soil, the builder may acquire the occupied land by paying its value in two situations: where the construction has partially invaded the neighbouring soil and the two parts of the soil form with the construction an indivisible whole, or where the construction was made entirely on another’s soil. In both cases the builder indemnifies the owner of the invaded soil for the decrease in value of the remainder and the damages suffered.

6. 6

   Step 6: If the builder acted in bad faith

   Article 763 leaves no margin: whoever builds, plants or sows in bad faith on another’s soil loses what was built, planted or sown with no right to indemnity. And Article 764 gives the soil’s owner three faculties: to demand demolition of the work or that the planting and sowing be torn out; to restore things to their primitive state at the cost of whoever built, planted or sowed; and compensation for damages.

7. 7

   Step 7: The owner who watched and said nothing is also in bad faith

   This is the part most people do not know. Article 765 says the owner is understood to be in bad faith whenever the act is done in their sight, knowledge or sufferance, without their opposing it. Where both parties are in bad faith, the rights of each are the same as they would have if both had proceeded in good faith. And where the bad faith is only the soil owner’s and they elect to make the work their own, they must pay its current value in advance and are liable for damages.

8. 8

   Step 8: If the materials belonged to a third party

   Article 759 obliges an owner who plants or builds on their land with another’s materials to pay their value, and if acting in bad faith, also to compensate damages; the owner of the materials may remove them only when they can do so without impairing the work built or causing the plantings, constructions or works to perish. And Article 766 protects the good-faith third party: whoever employs their materials, plants or seeds answers for their value, and should that person be insolvent, the third party has an action of enrichment against the owner of the soil. That enrichment action does not lie if the soil’s owner demands demolition and restores things to their primitive state at the cost of whoever built.

These are rules of substantive law, not a counter procedure: they are asserted between the parties or before the Court of First Instance. The Civil Code designates no agency to apply them.

• Believing that whoever paid for the construction keeps it: Article 757 gives it to the soil’s owner.
• Forgetting that the law presumes the work was made by the landowner and at their cost.
• Thinking the good-faith builder picks the remedy: Article 761 gives the choice to the soil’s owner.
• Claiming reverse accession without permits: Articles 761 and 762 expressly require them.
• Watching a neighbour build on your land without opposing: that is your own bad faith under Article 765.
• Assuming sowing and planting end the same way: whoever planted is charged the price of the land, whoever sowed the rent.
• Tearing another’s materials out of a finished work: they may be removed only if the work is not impaired.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov