Public law aspects of the relinquishment of real property ownership

Abstract

The paper offers an analysis of the relinquishment of real property ownership from a public law perspective. It begins with the qualification of ownership, in light of its social function (Article 42, paragraph 2, of the Constitution), as a complex legal situation encompassing not only rights and powers but also passive positions such as obligations, burdens, and duties. It then examines the fate of these latter elements following a unilateral act of relinquishment, considering both the responsibilities that may still weigh upon the renouncing owner and the obligations arising after the act of divestment. In this regard, the paper proposes a critical reinterpretation of Article 827 of the Civil Code, challenging the view that assumes an automatic and necessary acquisition of vacant property by the State, and opening the way to some considerations regarding the admissibility, under current law, of res nullius in the field of real estate. The paper concludes with brief remarks on the relinquishment within the context of expropriation proceedings tainted by unlawful occupation.