Ocupación De Inmuebles, En Caso De Situaciones Jurídicas Consolidadas

Abstract

The purpose of this work is to analyze the liability of the State because of the permanent occupation of real estate due to the execution of works of public interest, taking into account that, although the actions of the administration respond to supply needs of a general nature, however, in certain cases they cause damages to individuals that must be repaired. In many cases, this failure is due to improper planning of public institutions, who carry out works without foreseeing the acquisition of the necessary land for the execution of such works. However, it is necessary to analyze the factual assumptions that led the entities to decide to occupy real estate, to establish whether the assumptions of liability on the part of the Colombian State are met. In this paper we will study a specific case where the company Salamanca S.A. in the development of an urban development license, ceded an area to Bogotá D.C. in compliance with the provisions of Agreement 6 of 1990, a rule that was later declared null by the Council of State, however, we will proceed to analyze whether at the time of the ruling a right had been consolidated in favor of the District. Therefore, our research question is focused on determining whether the elements of State liability are configured, for occupation of real estate, in areas of urban transfer declared null and void, prior execution of the license granted? In principle, jurisprudence has indicated that the State must compensate the holders of the real right of ownership for the occupation of real estate under the theory of special damage, when damages are generated because of the breach of public charges among the administrators, however, we must specify that this liability, although objective, is not absolute. Consequently, the realization of this work is of great importance due to the discussion that has been generated regarding the nature of the urban cessions, an act that in essence is not free due to the close relationship with the valuation that is produced on the land by the authorization for its urbanization, a situation that motivates the imposition of duties on the head of the developers, but, it is relevant to examine from what moment a liability is generated by the State, when these charges are declared null and void. For the purpose of developing the problem raised, we will study the figure of the occupation of real estate from 3 stages, we will begin by contextualizing the issue in the legal system from the regulatory framework that governs it, then we will expose some factual assumptions regarding the burdens on the head of the developers and finally we will analyze the elements of the imputation trial from the specific case stated, in order to determine whether all the elements of the State's liability are configured.