The Real Right of Surface

Abstract

This article focuses its analysis on the surface right in rem within the framework of the Draft of the new Peruvian Civil Code. The author seeks to update the concepts related to surface rights and to introduce the reader to the subject. In this line, he highlights the importance of this right as a legal institution that allows the construction and maintenance of buildings on the land of another owner, thus separating the ownership of the construction from the ownership of the land. The article also discusses the history of the right of superficies, its evolution and renaissance in modern civil codes, as well as its usefulness in solving the housing problem, particularly for people of limited financial means. It also examines the current legislation of the right of superficies in the Civil Code of 1936, which classifies it as a modality of usufruct. This classification is criticised by the author, who argues that the right of superficies should be regulated independently. Finally, after presenting the distinctive characteristics of this right, the author proposes a revision of its regulation, advocating a legislative treatment that recognises its autonomous and substantive nature and corrects the deficiencies of the 1936 Civil Code regarding compensation and the duration of the right.