Chapter I General.
1 .- Concept:
The word community comes from the Latin term communitas. The concept refers to the common quality, so you can define different types of sets, for example, people who are part of a town, region or nation, nations that are united by political and economic arrangements (such as the European Community or Mercosur), or of people linked by common interests (such as the Catholic community). According to its dictionary definition, community is group of people who live together under certain rules or have the same interests or characteristics.
In this regard, simply gather a certain number of people around an idea, belief, territorial spaces or something that will be shared by diverse and numerous possible causes, one of which originates precisely from the right and is and has been treated as a private institution called half quasi if not an agreement between its participants will, upon will instead would be facing a contract and in this case there are chances of finding various types, such as gender and community referrals as a species. Among the types of community are commercial or civil societies in the field of law or joint, as a kind of community, in both cases half as long, of minds, instead a hereditary community requires the occurrence of a Indeed, what is your death, without any of the intention of the Communards to their birth.
on legal matters, according to Professor Pesci Vargas, the community is "the plurality of subjects that are both holders of the same right and that it falls on a one and the same thing. "
has, however, legal definition, this is found in Article 2304 of the Civil Code, following Pothier, provides: "The community is a universal or singular thing, between two or more people without any of them has contracted company or held another convention on the same thing, is a kind of quasi "definition discussed that do not pay any concept of community, but refers to its legal nature, but that gives us an important fact, which is the existence of rights two or more people on the same thing, without involving his will, if the right is the domain plural subject, takes the name of joint or condo, demonstrating the relationship between gender and species.
For the existence of community is then required to participate at the same time several people as holders of ownership rights, which they may be natural persons or legal entities, which lies on one and the same thing, which can be universal or singular. This clarifies that community can not exist if people own specific parts of a thing, as for example with "The land adjacent to a farm typical of one spouse, and acquired by him during the marriage to any title that then communicated under Article 1725, means to belong to society, except with him and the old farm has formed an estate or building that recently acquired land can not be broken without harm, for then the society and the spouse are joint owners of all proportion to the respective values \u200b\u200bat the time of incorporation, such as provided in Article 1728 of the Civil Code.
However, as discussed below, the law of ownership is created an interesting duality, which is exclusive ownership of unity and community spaces and common property. The idea of \u200b\u200bcommunity
involves limiting participate with each other, in the sense that they each have the same one right on the same common good, limited by compete their right to participate equally in the community, hence generated special obligations that harmonize the very existence of community among them.
2 .- Treatment in Chilean legislation.
legislation in our community is in Book IV, title XXXIV, "On quasi" civil code, title matters that already discussed in the literature, and defined as those institutions that generate or create obligations, a kind of quasi contract, subject to find on other provisions that also refer to special cases of community, as for example in the community is the dissolution of the conjugal union. There are also more standards to hereditary community purpose. For its part, the Code of Commerce is possible to find rules on the ownership of ships, and expressed in Article 837 which states that "The ownership of vessels is not a company but a community that is governed by the rules of law common. "
Notwithstanding the foregoing, we may note that there are types of community that if half will among members and others in which there is not, then we must say that the community can be either contractual or tort, in fact, may be born without there is some agreement among the community, as in the case of several people inherit the same cause or acquire several legatees the same thing. Here was the intention of the legislature or the cause which has given rise to the community.
community also can arise from a contract, not a "community contract" but an agreement or contract that the parties in possession of a thing. For example, many people buy a specific asset, or to acquire a person's share of a commoner, or to be agreed between the spouses separate property and not to liquidate the assets acquired during the term of the conjugal union.
Unlike what happens in the case of society as a contract itself, the community is not a legal person, lacks its own assets, common property belonging to the villagers undivided.
We must keep in mind that the right of the community over co-ownership or common property must be of the same nature, or all owners or beneficial owners, therefore, there is no community between the knot and the beneficial owner, because their rights are different nature, even as they fall on the same thing.
In turn, as the right of the commoners of the same nature, its exercise is limited by the rights of other stakeholders. There
art. 2305 civil code, the right of each community over the common thing is the same as that of the social partners have. This not meant to indicate the legislature the community, as to their legal nature, be assimilated into society, but that the powers of the villagers will be the same as those enjoyed by partners in the use, enjoyment and management of common property.
Our code follows the outline of the Roman community, here, each of the investors has been granted a share in the shared law, are free to adopt appropriate arrangements to regulate the situation of joint ownership. They can even determine the ownership is extinguished by dividing the common thing, is conceived as a temporary situation. Other laws exist
choice between other co-ownership schemes, as for example in English, which allows the co-owners to regulate their status according to the organizational system of the Germanic community, characterized by the absence of quotas, so it is not possible to exercise the division for the co-owners, in this sense the situation is treated as common goods into the condominium. Another feature of this system is that the investors are joined by a familiar character personal bond that is earlier than the situation of joint ownership so that is subordinate to the bond between them is considered a permanent and very stable because property equity share are attributed substrate the family group, as there are no quotas, there is no possibility that each owner can dispose of or sell your position in the community.
Joint ownership is a type of community or special property because it juxtaposes two kinds of ownership: exclusive or exclusive ownership of each of the owners of the flats or units and common ownership or ownership of the common elements of the building. Hence we must consider the matter from the standpoint of individual owner for his unit, where law applies to the general rule governed by general civil rules and the right of the owner of the commons, where he has applied more clear according to the principle of specialty, the law of real estate ownership.
3 .- Limitations and advantages.
The complexity of domain deliver the same thing to several people necessarily create room for potential conflicts between the villagers, Solar Light enlightens us on the issue saying "The man did not stick to one thing and not the absolute master, not cultivated Carefully, lovingly, the land that has, if not his; the common things they leave indifferent or slightly less. "
We therefore conclude that the community does not obey the general interest but of the villagers according to their own interests, this goes against the general principle of free movement of goods, maximum preventing the legislature seeks to prevent permanent undivided states, like the prohibition of successive usufruct, undivided pacts wherein establishing a maximum, etc.
Regarding profits, we can establish that the ownership meets a social need, population growth and the special forms of housing have required special protection from the legislature, who, seeking a special status of this form of community has created a special regime which is characterized precisely by the convergence of individual and collective rights that tend to stay in time, received a special form of termination, other to the community.
Next week continued.
Greetings.
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