The property of the individual’s assets
Property is the power of belonging to a good, assigning to the individual the ability to enjoy and dispose of it according to the autonomy of their will, all this, without limiting the rights of the conglomerate or contrary to the established legal order. In that order of ideas, the term property is classified according to its origin in common or individual, if it is private or public.
In the case of private property, this finds asylum, both in constitutional instruments, and in the international treaties to which our nation is registered, linked through the constitutionality block. In the case of the Colombian Political Constitution, it contains special provisions that deal with both limiting and guarantee contained in article 58 of the Political Charter, where the Republic of Colombia stipulates the associative guarantees, social, ecological and ecological obligationsSolidarities of private property, exclusively limiting the exercise of said right for the general interest or public utility.
Likewise, within the international instruments, article 21 of the American Convention on Human Rights or Pact of San José enshrishes the guarantee that every individual has, to freely exercise the use and enjoymore limitations than those exercised by the legal system.
In that same sense, we refer to a form of integral amparo that the nation offers to Colombian homes;It is therefore an institution established by Law 70 of 1931, Law 91 of 1936, Law 9 of 1989, Law 3 of 1991, Law 546 of 1999, Law 1537 of 2012, Law 1753 of 2015and in turn related to article 42 of the Political Constitution of Colombia, which establishes the family as an indispensable nucleus of every company, being this susceptible to all the protection mechanisms provided by the State for its support, in its character of recipientof concrete actions by the legal system aimed at its strengthening and permanence, all, for its essential role in a society.
In that order of ideas, family heritage protects the set of indispensable assets that a family group has giving the characteristic of unattachable and safeguarding them from those risks that in the future of time may arise, such as future creditors, economic crises and situationsof precariousness. C317 of 2010. All this, in order that those who make up this nucleus can live in decent conditions, establish, safe and sustainable, according to the principle of human dignity.
In the same way, said institution finds asylum in article 42 and 51 of the Political Charter, which provides for the constitution of the unattainable family of family and in turn with the special protection of the State for the people who inhabit it. In this way, relating to the International Pact of Social and Cultural Economic Rights of 1966, which forces the States Parties to guarantee the right of every individual and their family to have a decent standard of living and in turn, with the Convention on Rightsof the child, which has been linked to our Constitution through Law 12 of 1991.
In that order of ideas, within the special laws that regulate this tool, there is Law 495 of 1999 that aims not only to protect the right to dwelling houses of limited resources, but also include colleaguesand permanent companions that Law 70 of 1931 previously excluded taxatively.
This means that today, they are legitimized to institute it freely, conscious and voluntary, a spouse or permanent partner, who are permanently linked by marriage or marital union in fact their respective children, and those individuals who arefind in the minority of age and relatives that are located in the second degree of consanguinity;As long as they have the full domain of the property, they do not possess it with another pro -indivis.
However, if the good has a value less than legally required in Law 70 of 1931, other goods may be linked until said amount. Art 3 and 4 8 of Law 70 of 1931 modified by Law 495 of 1999
Regarding the conformation procedure, this legal institution is created by a petition before the notary belonging to the territory where the good object of constitution is located, where it must be recorded by the union and will of a permanent nature, whether marriage or marital union offact, the present or future existence of children within said union and the oath that it is not created based on defrauding creditors;Then, once formed in the public deed, it will be mandatory to register it in the Real Estate Registry within the following nineties, of not carrying out the above, the public deed will return to the State in which it was before its Constitution and apetition before the respective notary again. Decree 2817 of 2006.
In that same sense, Law 861 of 2013 empowered the Office of Registry of Public Instruments to execute this process and extended the possibility of accessing it, to the men and women who are considered head of household and that in favor of their childrenminors, subscribe their only real estate. This protection lies in the protective function that the Colombian legal system makes, given the circumstances of violation, marginalization and helplessness suffered by the women of our country for decades and the situations that have made them the heads or nuclei of the home, whereThey must assume deplorable situations without the support of any male figure;And on the other hand, it has also highlighted the primacy of children’s rights over the rights of others around the protection and special guarantees that they should receive where no ceiling is condensed to the value of the property for its creation.
In those same terms, the possibility that the father, who is in a situation of scarcity and acts as a support of one or more minors, can go to this institution for the protection of the signed property.
Regarding social interest housing and housing of priority interest, the obligation to structure its Constitution is established in order to protect the home from possible debts and creditors.
On the other hand, there is a mechanisms similar to the unattachable heritage of family, which in certain circumstances can be conceived as the same, even if you gave of great differences;Such institution is the affectation of family housing or better known as the institution of the double signature, which although, basically has the purpose of protecting the real estate not only of the debtors and giving it its character of unattachable, but also of generating aopposition to the spouse or permanent partner who wants to dispose of the good that has been constituted for the housing of both, that in the same circumstances, that the family heritage, preventing the transimmission of the property, as long as it is not duly canceled. Under this understood, it is understood affected by family housing, that property obtained entirely by one or both spouses or permanent colleagues, before or after the legal formation of said union, destined only to the room of both. As a result, the affected property cannot be transferred, recorded, mortgaged, subject to usufruct, limitation or servitude without the consent of both spouses expressed with their signature or prior judicial lifting, which would prevent, develop some other type of businesslegal since such assets do not operate as a guarantee when this was outside of commerce.
However, a distinctive point between both legal institutions is that in the affectation of family housing, a limiting or limiting is assigned according to the value of the real estate, but that on the contrary, it is left to the liberality ofThose interested, which irrevocably facilitates access to their consecration.
Affectation to Family Housing Law 1183 of 2008 Article 16 of Law 1183 of January 14, 2008 refers in its article 16 Article 3 of Law 258 of 1996.
In that order of ideas, Law 60 of 1994, provides for the affectation of rural or urban family housing, under the protectionist nature of the social rule of law against the peasants of few economic resources that intend to buy land for their own livelihood andthat of their families.
Acquisition of rural properties Law 258 of 1996 did not provide a special treatment for cases of acquisition of rural properties, however, considering that the objectives of Law 60 of 1175 94 are aimedof land acquisition to generate productive employment in the countryOf the permanent partners is the entire property, the acquirer of the good determines the part of the land where the family room is located of which will be expressly recorded in the real estate registration without implying the opening of a new folio.
On the other hand, said law only allows the affectation of a property as a couple, thus preventing two or more real estate under the unattachability regime and on the other hand, it also stipulates that its affectation cannot be achieved when mortgages can be formedprevious or affected to support loans for the acquisition, construction or remodeling of housing.
Regarding the cancellation or extinction of affectation, Law 258 of 1996 Art. 4 and Law 854 of 2003, enshrines that the permanent spouses or colleagues may execute the lifting of the same agreement, at the time they wish to make said decision, all by public deed duly registered;In that same sense, this mechanism is voluntarily eliminated by both spouses, by meansstay in it. This, even after divorce, at the request of the spouse that requests its permanence. In case of death of the two spouses and its continuity is requested freely and voluntarily by their descendants, this figure is maintained until they are of legal age.
The owner can dispose of family heritage or cancel registration for another to make good to their particular assets subject to common law but if it is married or have minor children, alienation or cancellation is subordinated in the first case the consent of your spouseand in the other to the consent of the second given by means and with intervention of a curator if they have it or a curator appointed ad hoc.
In another aspect, in terms of the abolition of family heritage, it remains if one of the spouses perishes on the existing one or if they are legitimate or natural successors of minors admitted in marriage or the marital union of fact.
As long as they respect, in both legal institutions there are certain exceptions to unattachability, in family heritage, a good is seized, exclusively by those companies that cover the elaboration, obtaining, renewal or subdivision of the property, the right of the creditor is also shieldedMortgage that at the time of the respective mortgage record, did not know the formation of family heritage.
In the affectation of family housing, article 7 of Law 258 of 1996, priority is given to credits made with mortgage before the affectation of family housing.
For its part, with respect to the cancellation or replacement of family assets, the family defender must pronounce on the acceptance or denial of the cancellation or replacement of family assets, within 15 days of communication by the notary. If the family defender from the place where the good is located is not pronounced, the notary will record this, if there is controversy within the procedure, it will be sent to the competent judge.
On the other hand, the assets categorized as an unattainable family or affected with family housing, are completerequest your uprising, which does not happen with the unattachable heritage of family.
The unattainability is also broken due to public utility or general interest, such is the case of expropriation, where the judge and the family defender must give special protection to minors who may be affected with such a measure, where he mustTake conservative measures for the payment of expropriation to make investment in other goods that serve as property of those affected, which must be duly registered.
Article 24. In case of expropriation due to public utility, if there are minors among the beneficiaries, the judge must issue conservative measures of the expropriation product while investing in the constitution of another family heritage. This Constitution can simply be done for the acquisition of one or more goods, by way of purchase, with judicial authorization. This title must register in the special book of registration referred to in article 18 of this Law, within the term of ninety days.
In that same sense, in case of total or partial destruction of the property subject to family heritage arising either by fire, flood or any natural disaster that gives rise to compensation, it must be paid by the insurer to which the registered is registeredright.
Regarding the domain extinction action, it prevails over any type of action to protect the goods even if they are previously registered and registered, since such action is autonomous, imprescriptible and independent and has constitutional protection in its article 58, against any good, regardless of the owner who has it in his possession, all this, based on the social function of private property, which exceeds any type of annotation or registration in the real folio of real estate registration, as is the case of measuresprecautionary, the affectation to family housing and the unattachable heritage of family. Since, the domain extinction action is a consequence of a patrimonial nature product of the illegal activities carried out by a person.
Family assets prevents the embargo but not sale, however, before making the sale, family assets must first be canceled, and if there are minors involved, it is necessary to have judicial authorization for such cancellation as already stated. In summary, a family heritage property cannot be sold until family heritage is canceled or extinguished.
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