Las consecuencias jurídicas de la posesión efectiva y actos de disposición frente a terceros herederos o legatarios.

Abstract

This thesis work involves a study of a social situation that affects to a broad spectrum of people and social groups in Ecuador. Death is a natural fact of life and no person can foresee it. Death can happen at any time and the pain it inflicts on the relatives, such as the Spouse and heirs makes them unable to handle decisions that they must confront: what to do with the properties of the deceased. Many times, the testamentary act or will of the deceased it is not enough to dispose of the property as it lacks legal formalities. Either due to legal ignorance, distrust, the common believe that there is still time to do it or just plain lack of certain legal formalities that makes the will null and void. Therefore, it is essential to be aware that Ecuadorian legislation provides for those situations where there is no testamentary act or will. When that is the case, the the heirs or legatees can claim the property left by the deceased by simply declaring before notary public that they are the heirs of the deceased and that they currently are in legal possession of the properties that once belonged to the before mentioned deceased : the notary then proceeds assigning said assets or rights to the before mentioned petitioners or declarants. This notary assignment enables the petitioners to legally dispose of the properties. The before described legal figure is known as effective possession which is prescribed on the Ecuadorian Civil Code and on the Ecuadorian Notary Law. This legal procedure has its own legal consequences in society in particular to unaware third parties. The effective possession of the inheritance was incorporated into our legislation first as an exclusively judicial action and then, through legal reforms to a procedure by the notary this notary procedure is a legal development in the law, because those notary procedures are held almost daily before notaries throughout the country. According to the sample incorporated in the present work, users who come to the notaries to request effective possession do not count in most cases, with legal knowledge of why they should do it, they just want to dispose or sale the properties they are in possession and they do not know about its consequences in law. We consider that the reason for this institution is a declaration that the goods or rights that belonged to a person before his death are now his heirs, but with the exception that a clause is incorporated stating that is "without prejudice to third parties ", this means that if effective possession is registered on the property of the deceased, and appears a third pary who believes he has the same rights, he can also request that they register that property or right to his name. But this registration of the effective possession has nothing to do with the occupation or possession in fact. The properties or rights that are assigned by an effective possession of the heirs themselves has registered in the Property Registry of real state of each County or City where the properties are located. Consequently, effective possession is the registered possession of the real state that the heirs make and without which they cannot make a valid tradition of such property.