When the surface right ends: who keeps the building

It is Section Three of Chapter IV of Title VI of Book Three of the Civil Code of 2020, Articles 986 to 990. It closes the surface-right regime: how it ends, what happens to what was built and what gets paid.

It applies to the soil owner and the superficiario. It also reaches the holders of real rights the superficiario had imposed: extinction of the surface right extinguishes theirs, and if there is indemnity they are subrogated in the superficiario’s place.

• To extinguish a right established for a term but with no duration fixed, the consent of both owner and superficiario.Verified against the official source
• To collect the Article 988 indemnity, that there be no agreement to the contrary and that the extinction be by lapse of the term.Verified against the official source
• To rebuild after destruction, complying with the right’s original terms and there being no agreement otherwise.Verified against the official source

• The deed of constitution, because the term, the resolutory condition and the agreed causes of extinction come from it.
• Evidence of the construction’s value at the moment of transfer, improvements included, which is the measure of the indemnity.

1. 1

   Step 1: The seven causes

   Article 986 lists them: the superficiario’s renunciation; expiry of the agreed term or fulfilment of the resolutory condition it was subject to; the superficiario’s breach of their obligation to build or plant; consolidation of owner and superficiario in one person; any other cause agreed between the parties; the superficiario’s death, if the right is for life; and expropriation.

2. 2

   Step 2: The term agreed without saying how long

   Article 987 covers a frequent gap: if the surface right is established for a term but its duration is not fixed, extinguishing it requires the consent of both owner and superficiario. Failing agreement, the court will fix, for the right’s conclusion, a period sufficient for the purposes the parties pursued in constituting it. Neither party can cut it short alone.

3. 3

   Step 3: On expiry, the building passes to the soil owner

   Article 988 opens with the rule: when the right is extinguished by lapse of the term, the owner acquires ownership of the building. No further act is needed for that.

4. 4

   Step 4: But they have to pay for it

   The article’s second paragraph is the one that answers the reader’s question: absent agreement, the owner must pay the superficiario an indemnity equal to the value of the construction at the moment of transfer, including all its improvements. The measure is the value at the moment of transfer, not what it cost to build.

5. 5

   Step 5: What happens to mortgages and other charges

   Article 988 continues: extinction of the surface right causes the extinction of the real rights imposed by the superficiario, and if the superficiario is entitled to indemnity, the holders of those rights are subrogated in their place. And it adds a precision for consolidation: if for any reason the owner’s and the superficiario’s rights come together in one person, the real rights falling on each keep burdening them separately.

6. 6

   Step 6: If the building is destroyed, the right stays alive

   Article 989 says the opposite of what many assume: destruction of the surface property does not extinguish the surface right, absent agreement otherwise. The superficiario may rebuild it, complying with the original terms of their right.

7. 7

   Step 7: And for whatever the Code does not say

   Article 990 closes the chapter by naming the residual source: provisions on the surface right not contemplated in this Code are dealt with in the real-property registry legislation. This guide did not read it and therefore does not summarize it.

Extinction is settled between the parties and reflected in the Property Registry. The court comes in for one specific case: where the right was established for a term without a fixed duration and there is no agreement to end it, under Article 987.

• Believing the soil owner keeps the building for free: absent agreement they must pay its value at the moment of transfer with all improvements.
• Calculating the indemnity by what it cost to build instead of by the value at the moment of transfer.
• Treating the right as extinguished because the building was destroyed: it is not, absent agreement otherwise.
• Ending on your own a right agreed for a term with no fixed duration.
• Forgetting that extinction carries with it the real rights the superficiario imposed.
• Assuming that on consolidation the charges merge: they keep burdening separately.
• Failing to build within the deadline and expecting to keep the right.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov