Are the roads in Casa Linda Sosua – Dominican Republic Public Domain, Private or Common Areas of a condominium? This question emerged during a review of the roads in this area motivated by freedom of travel and property rights violations by a private commercial company who is restricting access to homeowners. When speaking with various owners in the area, it is clear the facts have been distorted amongst this group of consumers since elsewhere in the world it is commonly understood roads that connect private lands are public. To begin we need to study various laws such as Law No. 108-05 on Real Estate Registration. Translated from Spanish to English, the following chapters are relevant to answer the question.
CHAPTER IV – REAL ESTATE OF THE PUBLIC DOMAIN
ARTICLE 106 – Definition – They are all those properties destined to public use and consecrated as “public domain” by the Civil Code, the laws and administrative provisions. In urbanizations and subdivisions, streets, areas green spaces and other spaces for public use are consecrated to the public domain with the registration of the planes.
PARAGRAPH I. – It is not necessary to issue Certificates of Title on the real estate destined for the public domain.
PARAGRAPH II. – The public domain is imprescriptible, inalienable, unattachable and no sanitation on it in favor of any person, physical or moral.
PARAGRAPH III. – The State is responsible for guardianship, administration, conservation, and protection of the public domain.
ARTICLE 107.- Disaffection of the public domain. The disaffection of the public domain is made exclusively by law and is intended to declare the property as a private domain of the State and put it into commerce.
CHAPTER XI – THE CONDOMINIUMS
ARTICLE 100. – Definition of a condominium. It is the right under the which different parts of a property with functional independence and direct exit or indirect to the public route, they are established as the exclusive property of one or more persons, which in turn are undivided co-owners of the common parts.
PARAGRAPH I. – The land is essentially common and undivided of all the condominiums.
PARAGRAPH ll. – Common and pro-undivided sectors or areas are inseparable from exclusive ownership and cannot be transferred or encumbered independently. The transfer of ownership includes, although it does not contemplate the contract, the right over the common parts that correspond to it.
PARAGRAPH lll. – Construction in progress may be subject to 1 condominium regime. However, for financing purposes, the owner and the financial institution may register with the corresponding mortgage registry their decision to submit the property to the condominium regime once the construction is completed and the requirements and formalities established by law have been met.
PARAGRAPH IV.- You cannot create condominiums on real estate or units already incorporated into this regime;
PARAGRAPH V.- You cannot create condominiums on land protected by written records;
PARAGRAPH VI. – The different floors of a building located on land The registered owners cannot belong to different owners if they are not affected by the condominium.
PARAGRAPH VII.- For each condominium, a Certificate of Title will be issued that identifies the exclusive unit, the participation on the common parts and the terrain, and the number of votes that correspond to each holder in the condominium assemblies.
PARAGRAPH VIII.- A Certificate of Title will be issued in the name of the
consortium of owners for the land, on which a registration block is registered in the Complementary Registration of the Certificate of Title.
Law No. 176-07 of the National District and the Municipalities
Article 179.- Public Domain Assets
Assets in the public domain are those destined by the city council to a use or service public
Paragraph I.– They are goods for local public use, roads and highways, squares, streets, walks, squares, parks, waters, fountains, canals, bridges and other public works of exploitation or general use whose conservation and surveillance are of the competence of the municipality
Paragraph II. – Public service goods are those intended for the fulfillment of goods public responsibility of the city council, such as municipal palaces and, in general, buildings that host the same, slaughterhouses, markets, hospitals, hospices, museums and the like.
Paragraph III. – For the purposes of this article, public domain assets are considered public property spaces intended for green areas in urbanization projects, without altering the rights of neighbors by other legislations in order to guarantee the maximum legal protection of the same.
Article 181. – Protection Regime for Public Domain Assets.
The public domain assets are inalienable, unattachable and imprescriptible and not they are subject to any tribute.
Paragraph I. – The alteration of the legal status of the public domain assets of the municipalities will require that its convenience and legality be justified.
Paragraph II. – The alteration of the legal status of public domain assets, in violation of the preceding article by the officials of the town halls for the legal effects, constitutes a crime equivalent to embezzlement, abstention or collusion in the Current Penal Code. In addition to the penalties indicated by the Penal Code, the culprit or the guilty could be sentenced to the payment of compensation for the damages caused to the city council, as well as to the disqualification for the public service foreseen by said Penal Code.
Article 182. – Real Estate.
Any alienation, encumbrance or exchange of real estate will be carried out in accordance with established by the Constitution of the Republic.
Law No. 675 of August 14, 1944 on Urbanization, Public Ornament and Constructions.
Article. 1.- Any person or entity that plans to develop a portion of land must submit to the Administrative Council of the District of Santo Domingo or to the authority corresponding municipal, a project based on the following specifications: ( see ley for full details )
Article. 2.- For any urbanization or expansion that is planned to be carried out, the previously a written authorization of the Administrative Council, in the District of Santo Domingo, or the corresponding City Council, in the Commons. This authorization must be requested by the owner of the portion of land to be developed or convert to expansion, or by its legal representative
Article. 6. – When a person or entity submits to the Administrative Council of the District of Santo Domingo or the municipal authority an expansion or urbanization project, fully understand that he does so by renouncing in favor of the public domain, in the if the project is approved, of all the lands that appear in the project destined for parks, avenues, streets and other public dependencies Once the project is approved, the authorities will be able to immediately use said land for such purposes, without any requirement.
Article 25. – It is forbidden to install underground or aerial pipes, or to make trenches or excavations in public roads to establish or maintain public or private services, without prior permission from the corresponding municipal authority, and provided that no provision of a sanitary nature or of decoration and beautification is opposed to it. Everything, except in cases of force majeure and for the time it lasts.
File no. TC-05-2018-0255, regarding the appeal of constitutional review of sentence of amparo filed by Carlos Mariberto Guerrero Ceballos against the Sentence no. 0195-2018-SCIV-00501
Public Domain such as “streets and passages constitute national assets of public use governed by the municipal authority and that, by its very nature, is destined to the transit of people and are, therefore, in common use, so they cannot their streets be closed, since they affect constitutional rights so much of the residents as of anyone else.“
In another judgment that we understand in principle issued by the Constitutional court marked with No. 0126/19 establishes the following against Lifestyle: The constitutional court has been able to verify that the appellant (Lifestyle) is wrong when argues that in the species there was no violation of fundamental rights based on the non-existence of arbitrary and illegal actions and consequently, that the facts have been distorted; Therefore, without a doubt, the evidence that rests in the file, together with the report raised during the visit, related to the constitutional review appeal in terms of Amparo and request for suspension filed by Lifestyle Holiday Assets Holding, SRL against the Judgment no. 271-2018-SSEN00386, issued by the First Chamber of the Civil and Commercial Chamber of the Court of First Instance of the Judicial District of Puerto Plata, on June eight (8), two thousand eighteen (2018). Page 30 of 37 inspection of places carried out by the judge a-quo they realize that the violations of the fundamental rights to property and freedom of movement of the defendants in constitutional review in terms of Amparo are authentically palpable, The foregoing, as It has been possible to appreciate, by virtue of the fact that such constitutional prerogatives have been subject to arbitrary and illegal limitations that prevent their full enjoyment by blocking a public road through the installation of a gate and, later, with the placement of a mechanical arm, not counting with the corresponding authorization from the municipal authorities. In effect, these events have unleashed a series of conditions and obstacles so that both the owners, their lawyers and employees of construction, electrical and sanitary services, can circulate freely through the aforementioned public road that gives access to the properties of the appealed. or. The fundamental right to property and freedom of movement, both invoked by the defendants in their Amparo action, are established in articles 46 and 51 of the Dominican Constitution. Its content establishes:
1) Article 46.- Freedom of transit. Every person who is in national territory has the right to freely transit, reside and leave it, in accordance with the legal provisions.
2) Article 51.- Property rights. The State recognizes and guarantees the right to property. Property has a social function that involves obligations. Everyone has the right to the enjoyment, enjoyment and disposition of their property.
Many residents, property owners and visitors incorrectly believe the urbanization registered with the Municipality under the name “Dream House Residencial Casa Linda” is a legally constituted private area given the fact a private company that isn’t owned nor operated by the community, R.C.L. Administraciones, SRL, made excavations in the public domain in order to build a gatehouse with armed guarded so they can restrict access. The misconception most likely originates with good faith and trust the commercial company had permission, however, head of the Municipality Council has made it clear the commercial company does not.
So we go back to the root cause of the confusion that lead to the topic question which originates from the fact there is a private company obstructing the public domain by constructing a gatehouse, placing armed guards and operating without respect for first order constituted rights and without permission from the city municipality of Sosúa.
So why would a company not care about fundamental rights and Dominican Law?
The business in this situation has a model generating its income by maintaining a monopoly over all essential services in the area, such as water, electricity and access to and front property. Read more about Negative Social Economic Impact of a monopoly market here. With such a high degree of power in the wrong hands, property owners are subject to arbitrary fees and rules by the monopoly operators who lack constituted registered rights defined under Law No. 108-05 on Real Estate Registration. They truly have no other way to maintain control in this community beyond abusive and reckless practices. Unlike an ordinary regime known as a homeowners association, armed guards in this specific urbanization do not work directly for a legally constituted group of property owners nor are property owners able to directly order the armed guards to stop engaging in unlawful activity. In an ordinary regime, property owners elect individuals to oversee the community for the common good and the problems with rights violations by security personal are generally non-existent.
Despite the fact Monopolies are prohibited in the Dominican Republic, studies such as Reports on Human Rights Practices: Dominican Republic by the US state department express the judicial system is inefficient to handle the case load of complaints and problems with corruption. The Dominican Republic is a representative constitutional democracy where laws exist to protect citizens and the existing problems are not unique to this country. The inefficiencies reported in by U.S DEPARTMENT OF STATE and the situation in this urbanization is a great example for academic review on the side effects that result from an inefficient judicial system. An attempt to break up this particular monopoly by a government regulator (Superintendencia de Electricidad) started with resolution Numero. Met-0108293427 ordering the state-owned electricity company “Edenorte” to setup services under to residences of Casa Linda. However, the monopoly operators, who are undeterred by the Dominican Republic legal system, hindered compliance of this order using private armed guards to block access to the state owned electricity company; Normally these essential workers have the ability to freely access the public domain. This obstruction only created an additional burden on the judicial system, which the monopoly operators take full advantage of. Instead of the monopoly operators behaving in a compliant manner, extraordinary steps requiring a court order for the public force to assist Edenorte to comply with the initial order is needed; the sort of abusive and reckless conduct an efficient judicial system has the potential deter all together.
CONCLUSION
In the urbanization registered as Dream House Residencial Casa Linda, the property is individually titled under private ownership instead of issued in the name of a consortium of owners. The land is not undivided. The individual Certificates of Title do not identify exclusive units, common parts and terrain, nor does it include the number of votes that correspond to each holder in the condominium assemblies which is required if it were in fact a condominium. In Subdivisions, streets and green spaces are consecrated to the public domain and a certificate of title is not necessary for real estate destined to be public domain. Thus it is a fact supported by law the roads in the Urbanization registered under the name “Dream House Residencial Casa Linda” are Public Domain.
To be continued…