The surface right: building on another’s land and owning what you build

They are Sections One and Two of Chapter IV of Title VI of Book Three of the Civil Code of 2020, Articles 971 to 985. It is the figure that separates the owner of the soil from whoever builds and uses what is built, without the soil changing hands.

It is constituted by the owner, with the consent of any lessee or usufructuary of the property or of the part over which it is granted; that consent is not needed where the Property Registry shows the owner reserved the faculty to grant it.

• Granting it by public deed and recording it in the Property Registry: Article 973 requires both for valid creation.Verified against the official source
• The consent of any lessee or usufructuary of the property, unless the owner’s reservation appears in the Registry.Verified against the official source
• Constituting a servitude of access to the public road or another necessary one over the principal plot in the superficiario’s favour.Verified against the official source
• Building within the term granted, which may not exceed five years, or within five years from constitution if the title fixes no deadline.Verified against the official source
• If the right falls on an existing building, that it be recorded or its recording applied for by a declaration of new work.Verified against the official source
• To demolish, enlarge or raise the building, the owner’s written consent.Verified against the official source

• The public deed of constitution, where the building deadline, the tanteo and retracto rights and the liquidation regime may also be agreed.
• The declaration of new work, where the right is granted over an existing building that is not recorded.
• The notarial act of building, by which modifications may be recorded if both parties agree.

1. 1

   Step 1: What it is, and what counts as construction

   Article 971 defines it as a limiting real right over another’s thing that empowers a person, the superficiario, to build on the soil, subsoil or airspace of a plot or on an existing building belonging to another person, the propietario. And it gives its own list of what counts as construction, among others: a new or existing building, antennas, photovoltaic panels, windmills, electronic boards, and sowings and plantations. It is not only for houses.

2. 2

   Step 2: What is built becomes a plot of its own

   The same Article 971 says it: the surface right creates an encumbrance on the principal plot, and once the construction is finished it will be recorded as a new independent plot. If the right is granted over an existing building, that building must be recorded in the Property Registry or its recording applied for by a declaration of new work.

3. 3

   Step 3: Public deed and recording: both

   Article 973 leaves no alternative: the surface right is validly constituted by its granting in a public deed and its recording in the Property Registry. A private agreement is not enough.

4. 4

   Step 4: How long it lasts if nobody writes it down

   Article 972 settles it with a rule worth knowing before signing: the surface right may be perpetual or for a term, and if the title says nothing it is understood granted in perpetuity. Silence does not shorten the right: it makes it perpetual.

5. 5

   Step 5: Who has to consent

   Article 974 says it may be constituted by the owner, with the consent of any lessee or usufructuary of the property or the part over which it is to be granted. That consent is not necessary where the Property Registry shows the owner reserved the faculty to grant the surface right.

6. 6

   Step 6: Five years to build, and not one more

   Article 979 sets a hard cap: the right to build will be granted for a term no longer than five years, and if the constituting title fixes no deadline, the superficiario must carry out the construction within a maximum of five years counted from the date the right was constituted. Article 976(a) further allows agreeing that breach of the deadline have extinguishing and, if applicable, resolutory effect; and it adds that in any case what has been built reverts to the owner, absent agreement otherwise.

7. 7

   Step 7: Access is not optional

   Article 980 makes it a requirement: granting a surface right requires constituting a servitude of access to the public road or another necessary servitude over the principal plot in the superficiario’s favour. Where the title does not designate the site and the other conditions of the servitudes’ exercise, failing agreement, the court fixes them.

8. 8

   Step 8: What each party may and may not do

   Article 977 lets the superficiario carry out works on the constructions with the title’s conditions and limitations. Article 978 obliges the owner to refrain, from constitution, from any act that disturbs, hinders or prevents the right’s exercise, and makes them answer for damages if they do. And Article 985 sets two limits: the superficiario may not demolish, enlarge or raise the building without the owner’s written consent — modifications may be recorded by notarial act of building with both parties’ agreement — and neither owner nor superficiario may act so as to endanger the other’s building or its good use and enjoyment.

9. 9

   Step 9: Selling the right, and who gets first refusal

   Article 975 makes the right transferable unless it is conditioned, constituted gratuitously and as personalísimo, or expressly prohibited by law. Article 984 adds the preferences: tanteo and retracto rights may be agreed in the deed, and absent agreement, in every onerous transfer of the surface right the owner will hold tanteo and retracto against any acquirer; and in onerous transfers made by the owner to private parties, the superficiario will hold the same rights. It runs both ways.

10. 10

    Step 10: If it is perpetual, a condominium can be made of it

    Article 982 opens a large possibility: where the surface right is granted in perpetuity, the superficiario may submit the surface property to horizontal property and may transfer and encumber as independent plots the apartments, premises and private elements, without needing the soil owner’s consent.

Before a notary for the public deed, and before the Property Registry for the recording Article 973 requires for the right to be validly constituted. The court only comes in where there is no agreement on the site and conditions of the access servitude.

• Creating it in a private document: a public deed and Registry recording are needed.
• Not writing the duration: silence makes it perpetual, not temporary.
• Forgetting the consent of the property’s lessee or usufructuary.
• Agreeing more than five years to build: Article 979 does not allow it.
• Letting the deadline pass without building: what is built reverts to the owner absent agreement otherwise.
• Granting the right without constituting the servitude of access to the public road.
• Demolishing, enlarging or raising the building without the owner’s written consent.
• Selling the right without reckoning with the owner’s tanteo and retracto.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov