The constitution of the “Derecho de vuelo” in Catalonia

8 February, 2023
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Civil
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Pablo del Estal


Reading time: 3 minutes

The right of overbuilding or underbuilding, also known as “derecho de vuelo”, is a property right to raise a construction on a building or building plot or to carry out such construction under the ground. In such a way that the holder becomes the independent owner of what has been built.

The derecho de vuelo should not be confused with the right of surface, being the following two characteristics its main differences:

In the right of surface, there is a separate property (that of the owner of the land and that of the owner of the surface); on the contrary, once the derecho de vuelo has been exercised, the new construction will be integrated into an horizontal property, so that the owner of the derecho de vuelo will also be the owner of the land on which the building is located.

The derecho de vuelo is always urban in nature; on the other hand, the right of surface may be urban or rustic (also called planting right).

For the valid constitution of the derecho de vuelo, this right must be established in the title of constitution of the horizontal property regime, and must be included in a specific clause. This legitimization requires the unanimous consent of all the owners of a building subject to such regime. However, in the event that there is only one owner, such unanimity would not be an indispensable requirement since there are no other owners.

In addition, in accordance with article 567-2 of the Civil Code of Catalonia, for its valid constitution, it is mandatory that the derecho de vuelo is recorded in a public deed and contains the following data:

1. The maximum number of floors, buildings, if applicable, and private elements that may be constructed, in accordance with the urban planning and horizontal property regulations in force at the time the right is constituted.
2. The criteria to be applied in the determination of the participation quotas corresponding to the private elements located in the new floors or buildings, and those corresponding to those located in the pre-existing floors or buildings, which must guarantee the appropriate proportionality between all of them.
3. The term for exercising it, which may not exceed thirty years in any case, plus any extensions.
4. The price or consideration that, if applicable, must be paid by the person acquiring the right, or the form in which it is valued if it is reserved.

Additionally, the title of constitution of the derecho de vuelo may include the following contents:

1. The community or horizontal property rules by which the building must be governed once it has been exercised.
2. The limitation of the availability of the derecho de vuelo.
3. The power of the holders of the derecho de vuelo to establish or modify the horizontal property regime, to modify the description of the pre-existing building and to fix or redistribute the participation quotas without the consent of the grantors.
4. Any other lawful covenants deemed appropriate.

Finally, regarding the possibility of empowering the holder of the “derecho de vuelo” to modify the horizontal property regime or the description of the existing building, it is interesting to note the Resolution of the Direcció General de Dret i d’ Entitats Jurídiques de Catalunya , dated May 26, 2011, which establishes that, among the powers of a holder of the derecho de vuelo, there is no power to modify the description of the private elements of the other co-owners of the horizontal property.

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