تجزیه و تحلیل اقتصادی از اموال افقی گردشگری

Horizontal property is a common legal institution in many codified law countries that establishes property rights on apartment or office buildings among different owners. Applying a version of the Coase theorem, in this paper we analyze it as a solution to establish rights on assets that jointly yield services subject to individual and joint consumption (private and public goods). Under certain conditions, this institution seems to economize transaction and governance costs, especially in cases where the governance costs of a centralized condominium are relatively high and the number of economic agents involved (that is, the number of apartments of the building) is also high

Although some of its characteristics come from the ancient Roman law, the first written legal reference to horizontal property appears on the French Civil Code of 1804, known as the “Napoleon Code.” On its article 664, this code ruled about the case in which .“.. different floors of a building belong to different owners” and established a number of imperfect rules concerning the duties of those owners regarding the improvements and maintenance of the building. Based on this article, commentators and jurisprudence began to elaborate legal theories about the nature of this sort of common property, and from then on many civil codes passed in different countries incorporated the concept in one way or another.1 The basic characteristic of horizontal property as it is commonly understood today is the mix between individual ownership and common ownership. Portions that are privately used (the apartments or offices themselves) are individually owned, but all common parts (ground, external walls, entrance halls, central heating systems, stairs, elevators, etc.) are subject to collective ownership by all the proprietors of the building. What owners possess in a horizontal property regime is a bundle of property rights that implies exclusive use of their apartments or offices and nonexclusive use of the common parts of the building, and these rights are perpetual and transferable. Exclusive and nonexclusive rights are nevertheless indivisible, in the sense that it is not possible to sell the rights on the individually owned portions without adjoining the rights on the collectively owned portions, or viceversa. The particular nature of horizontal property has given rise to the interpretation that the object on which ownership rights are exercised is a combination of individual and common parts known as “functional unit” (unidad funcional). From a legal point of view, therefore, horizontal property is fundamentally different from the kind of ownership exercised by a cooperative partnership, that assigns apartments to its different members but retain all property rights on the head of a single owner (which is the partnership itself). It is also different from the concept of “communal ownership” or “condominium,” where all the owners own everything and exclusive use of certain parts of the building comes from a contractual arrangement. In the institution of horizontal property, all the decisions concerning the common parts are taken by an entity known as “owners’ consortium” (consorcio de propietarios), which is the set of all the owners of the building. The way in which this consortium operates is established by a “regulation of co-ownership and administration” (reglamento de copropiedad y administración) and by general legal rules. Conversely, decisions concerning individually owned parts are taken by individual owners, although they are subject to a number of restrictions based on general property law rules and specific entitlements given to the owners’ consortium.

Horizontal property is a legal creation of codified law countries that combines elements of individual and common ownership and applies them to a situation in which a single good (a building) is subject to individual and joint consumption. It can be seen as an attempt to define property rights in a way that allows most parts of the building to be individually owned and establishes an ad-hoc scheme for the administration of all the common parts. This scheme basically follows the idea of a condominium, but it exhibits some characteristics that belong to the institution of public property. Horizontal property can be seen as a bundle of rights whose delineation tends to reduce transaction costs among owners and between owners and third parties. It also contributes to partially solve the problem of the commons that simple condominium creates, but it implies the emergence of additional governance costs. These governance costs are typically smaller than the ones that appear under alternative property right systems such as centralized condominium or cooperative partnership, which are schemes that have a higher ex-ante capacity to cope with efficiency problems originated in the allocation of resources between individual and common uses. Our model for the evaluation of alternative property rights systems suggests that horizontal property can be the preferred scheme when the governance costs of a centralized condominium are relatively high and the number of economic agents involved (that is, the number of apartments of the building) is also high. When governance costs are smaller, centralized condominium has an advantage over horizontal property. When the number of economic agents is small and governance costs are high for both horizontal property and centralized condominium, then simple condominium can become the preferred property right system. The stylized facts described in the previous paragraph can be used to elaborate a preliminary explanation of why horizontal property is not customary in common law countries and is relatively modern in codified law countries. In the former, governance costs of centralized condominiums are probably smaller, and it is probably easier to trade building shares whose rights are established contractually. In less developed codified law countries (or in former times in those countries) the need to have large apartment buildings is relatively minor, and an institution like horizontal property is probably unnecessary. In more developed codified law countries (or more recently in the majority of them) the combination of a need for large buildings and a higher level of governance costs may explain why horizontal property laws were enacted, as an attempt to lower those costs together with the transaction costs that arise when portions of the buildings have to be traded.