General common use

Collective use, or common use, is that which takes place by the general public and, therefore, indiscriminately, anonymously, without the need for any title. It is what can be exercised by any administrator, without requiring special qualification.

Public use is based, in principle, on a factual budget: certain goods are susceptible to that characteristic use carried out by the community as a whole, through the indiscriminate use of its members, to the extent that each one needs it. This requirement constitutes in some cases a consequence of the way of being of the property itself: the coastal sea, the atmosphere. In others, it is the product of the necessary works to transform physical reality, as occurs in the case of highways or urban roads. But, in any case, the good in question covers a common need, a need felt by all members of the community.

Taking these two requirements into account, Administrative Law grants certain goods a destination or affectation: that of use open to all, public use. Consequently, this is the type of use that corresponds to public land roads (roads, streets, squares, promenades), the territorial sea and its banks and, likewise, the banks of rivers and water courses. Normally the activity of individuals will be reduced to a circulation activity or a brief parking situation.

General common use, or the normal regime of collective uses, is governed by the principles of freedom, equality and gratuity, principles that must be respected by administrative acts or provisions issued on the use of these goods.

Special common use

The principles of freedom, gratuity and equality characteristic of general common use are not always easy to guarantee, which is why they must sometimes be restricted, as happens in the cases of special common uses. Special use is also a common use that, without distorting or preventing the general use of the public domain by anyone, nevertheless implies that an interested party uses or takes advantage of a certain public domain asset more than others, as a consequence of its special relationship or location with respect to it.

The category of special common use includes very heterogeneous assumptions. Thus, we can speak of a special common use due to the special intensity in the use of the common good, an intensity of use that must not reach a level that prevents use by others. To do so, administrative authorization will be required and, sometimes, the payment of a fee for special use is also foreseen.

We can cite, as examples of this special use, certain uses or commercial activities that take place on public roads, such as street vending or the placement of chairs and stands during festivals, parades, etc. Also the cases of special use derived from the situation of bordering or contiguity with public roads, such as the crossing of sidewalks by vehicles in order to access nearby properties.

This special common use is especially evident in everything related to automobile circulation. In this field, the concept of dangerousness has justified the requirement of a license or special authorization of fitness of the subject of the right (driving license), and another of absence of defects in the vehicles (circulation permits). Other cases of special common uses occur in the collective use of museums when the visit is conditional on the payment of a fee, in terms of fishing and hunting (license), etc.

Private use

The private use of goods primarily intended for general use is characterized by being a derogation from the principle of equality in favor of an individual. Private use must be understood as the set of powers of enjoyment that, over a demanial dependency, is possessed by an individual or an administration other than the owner of the property.

Thus, in accordance with the provisions of arts. 75.2 RBEL and 85.3 LPAP, private use is that constituted by the occupation of a portion of the public domain, in a way that limits or excludes the use by other interested parties. This happens, for example, when, on a street or public square, the installation of a kiosk is authorized or the owner of a bar is allowed to place tables and chairs on the street.

To the extent that these cases contradict the primary purpose of public dependency, which is general use, these private uses constitute an abnormal use of the public domain. If, despite everything, they are admitted, it is because the contradiction is not serious, since it only falls on a part of the demanial dependence, and therefore the general purpose to which the good in question is affected can continue to be fulfilled. Consequently, we must not lose sight of the general interest involved in the allocation of the public domain to public use, to which private use must in all cases be subordinated. Furthermore, even if it is a private activity or use, it must also fulfill a purpose of social utility or general interest, the requirement of which must be controlled by the administration.

In any case, the private use of a public asset must have an accessory or secondary, marginal character, with respect to the public allocation of the asset to public use; Otherwise, private use would mean an illegitimate change in the impact of public property, as would happen in the case of authorizing the placement of bar chairs and tables on public roads so that both pedestrian and road traffic would be impossible.

Derived from all of the above, it is easy to assume that the principles of gratuity and freedom typical of general common use do not apply to private uses. On the contrary, private use, both abnormal and normal, justifies the payment of a fee. Likewise, the need to control the compatibility of private use with general use, to which the property is primarily affected, explains that the right to private use can only arise from an express and constitutive act of the administration, through which it assesses the opportunity and convenience of granting it.

The private uses are diverse, depending on whether or not they require the completion of a work that involves the physical transformation of demanial dependency. In the first case, we will talk about occupancy, in the second simply about parking. As for the regime of simple parking lots, which constitute, as has been said, a private occupation of the public domain in favor of an individual, but which do not involve the performance of any important work that causes a physical alteration of the property (chairs and tables in cafeterias on public roads, circus tents, etc.), they require an authorization or administrative license for their exercise and the administration has important powers regarding its granting (discretionality) and renewal (precariousness), and in establishing the conditions that can shape its contents, all of this in order to guarantee the general interests of the conservation and circulation of public dependencies.

Unlike parking lots, occupations involve an abnormal private use, not preventing general use, but requiring a transformation, a definitive work and, therefore, they must be protected by a more solemn and effective title: the concession (arts. 86.3 and 93 et ​​seq. LPAP and 78 et seq. RBEL). Examples of permanent occupations are kiosks on public roads, yacht clubs in the maritime-terrestrial zone, etc.

The procedure for granting public concessions is analogous in nature to the contractor selection procedure and responds to the need to ensure the principle of equal opportunities and the choice of the most suitable project or convenient to the general interests.

Private uses in accordance with the affectation

Faced with the assumptions seen previously in which the main impact is public use, certain public dependencies are established precisely with the purpose of facilitating exclusive use and enjoyment by individuals, as occurs, among other cases, with graves in cemeteries and shops in public markets. Normal private uses also constitute those derived from the exploitation of assets that are classified as public domain because they are affected by national wealth, such as mines and hydrocarbon deposits.

General common use

Collective use, or common use, is that which takes place by the general public and, therefore, indiscriminately, anonymously, without the need for any title. It is what can be exercised by any administrator, without requiring special qualification.

Public use is based, in principle, on a factual budget: certain goods are susceptible to that characteristic use carried out by the community as a whole, through the indiscriminate use of its members, to the extent that each one needs it. This requirement constitutes in some cases a consequence of the way of being of the property itself: the coastal sea, the atmosphere. In others, it is the product of the necessary works to transform physical reality, as occurs in the case of highways or urban roads. But, in any case, the good in question covers a common need, a need felt by all members of the community.

Taking these two requirements into account, Administrative Law grants certain goods a destination or affectation: that of use open to all, public use. Consequently, this is the type of use that corresponds to public land roads (roads, streets, squares, promenades), the territorial sea and its banks and, likewise, the banks of rivers and water courses. Normally the activity of individuals will be reduced to a circulation activity or a brief parking situation.

General common use, or the normal regime of collective uses, is governed by the principles of freedom, equality and gratuity, principles that must be respected by administrative acts or provisions issued on the use of these goods.

Special common use

The principles of freedom, gratuity and equality characteristic of general common use are not always easy to guarantee, which is why they must sometimes be restricted, as happens in the cases of special common uses. Special use is also a common use that, without distorting or preventing the general use of the public domain by anyone, nevertheless implies that an interested party uses or takes advantage of a certain public domain asset more than others, as a consequence of its special relationship or location with respect to it.

The category of special common use includes very heterogeneous assumptions. Thus, we can speak of a special common use due to the special intensity in the use of the common good, an intensity of use that must not reach a level that prevents use by others. To do so, administrative authorization will be required and, sometimes, the payment of a fee for special use is also foreseen.

We can cite, as examples of this special use, certain uses or commercial activities that take place on public roads, such as street vending or the placement of chairs and stands during festivals, parades, etc. Also the cases of special use derived from the situation of bordering or contiguity with public roads, such as the crossing of sidewalks by vehicles in order to access nearby properties.

This special common use is especially evident in everything related to automobile circulation. In this field, the concept of dangerousness has justified the requirement of a license or special authorization of fitness of the subject of the right (driving license), and another of absence of defects in the vehicles (circulation permits). Other cases of special common uses occur in the collective use of museums when the visit is conditional on the payment of a fee, in terms of fishing and hunting (license), etc.

Private use

The private use of goods primarily intended for general use is characterized by being a derogation from the principle of equality in favor of an individual. Private use must be understood as the set of powers of enjoyment that, over a demanial dependency, is possessed by an individual or an administration other than the owner of the property.

Thus, in accordance with the provisions of arts. 75.2 RBEL and 85.3 LPAP, private use is that constituted by the occupation of a portion of the public domain, in a way that limits or excludes the use by other interested parties. This happens, for example, when, on a street or public square, the installation of a kiosk is authorized or the owner of a bar is allowed to place tables and chairs on the street.

To the extent that these cases contradict the primary purpose of public dependency, which is general use, these private uses constitute an abnormal use of the public domain. If, despite everything, they are admitted, it is because the contradiction is not serious, since it only falls on a part of the demanial dependence, and therefore the general purpose to which the good in question is affected can continue to be fulfilled. Consequently, we must not lose sight of the general interest involved in the allocation of the public domain to public use, to which private use must in all cases be subordinated. Furthermore, even if it is a private activity or use, it must also fulfill a purpose of social utility or general interest, the requirement of which must be controlled by the administration.

In any case, the private use of a public asset must have an accessory or secondary, marginal character, with respect to the public allocation of the asset to public use; Otherwise, private use would mean an illegitimate change in the impact of public property, as would happen in the case of authorizing the placement of bar chairs and tables on public roads so that both pedestrian and road traffic would be impossible.

Derived from all of the above, it is easy to assume that the principles of gratuity and freedom typical of general common use do not apply to private uses. On the contrary, private use, both abnormal and normal, justifies the payment of a fee. Likewise, the need to control the compatibility of private use with general use, to which the property is primarily affected, explains that the right to private use can only arise from an express and constitutive act of the administration, through which it assesses the opportunity and convenience of granting it.

The private uses are diverse, depending on whether or not they require the completion of a work that involves the physical transformation of demanial dependency. In the first case, we will talk about occupancy, in the second simply about parking. As for the regime of simple parking lots, which constitute, as has been said, a private occupation of the public domain in favor of an individual, but which do not involve the performance of any important work that causes a physical alteration of the property (chairs and tables in cafeterias on public roads, circus tents, etc.), they require an authorization or administrative license for their exercise and the administration has important powers regarding its granting (discretionality) and renewal (precariousness), and in establishing the conditions that can shape its contents, all of this in order to guarantee the general interests of the conservation and circulation of public dependencies.

Unlike parking lots, occupations involve an abnormal private use, not preventing general use, but requiring a transformation, a definitive work and, therefore, they must be protected by a more solemn and effective title: the concession (arts. 86.3 and 93 et ​​seq. LPAP and 78 et seq. RBEL). Examples of permanent occupations are kiosks on public roads, yacht clubs in the maritime-terrestrial zone, etc.

The procedure for granting public concessions is analogous in nature to the contractor selection procedure and responds to the need to ensure the principle of equal opportunities and the choice of the most suitable project or convenient to the general interests.

Private uses in accordance with the affectation

Faced with the assumptions seen previously in which the main impact is public use, certain public dependencies are established precisely with the purpose of facilitating exclusive use and enjoyment by individuals, as occurs, among other cases, with graves in cemeteries and shops in public markets. Normal private uses also constitute those derived from the exploitation of assets that are classified as public domain because they are affected by national wealth, such as mines and hydrocarbon deposits.