The real estate team at Rodrigo, Elías & Medrano Abogados shares its third newsletter, featuring the most notable real estate regulations, resolutions, and opinions for the month of May.
National entities of the Executive Branch are required to repeal or modify administrative provisions that have been declared illegal and/or unreasonable bureaucratic barriers.
On May 8, 2025, Supreme Decree No. 059-2025-PCM (the «Supreme Decree») was published in the Official Gazette «El Peruano.» This regulation mandates that the National Government entities that comprise the Executive Branch must expressly repeal or correct the legal defects of administrative provisions that have been declared illegal and/or unreasonable bureaucratic barriers.
Such repeal or, if applicable, the correction of the legal defects (through the respective amendment) must occur within thirty (30) calendar days from INDECOPI’s publication of the list of administrative provisions that have been declared bureaucratic barriers, whether by final resolutions of the first or second instance of INDECOPI. The obligation to repeal or correct does not apply in cases where the resolutions declaring the bureaucratic barriers are being challenged in a contentious-administrative process or are in the process of filing the respective contentious-administrative claim.
INDECOPI has a maximum period of ten (10) calendar days from the entry into force of the Supreme Decree to publish the indicated list. Thereafter, INDECOPI must publish the updated list of administrative provisions that incur in the above-mentioned barriers on the first business day of each quarter.
Properties located in non-mitigable risk zones and other zones are declared imprescriptible.
On May 26, 2025, Law No. 32349 was published in the Official Gazette «El Peruano.» This law declares those areas declared by the competent local government to be intangible and uninhabitable zones. It also prohibits the granting of ownership and the provision of public services, with the exception of interventions intended for the non-permanent installation of water and sewerage services.
Likewise, the law prohibits the acquisition of property through acquisitive prescription for properties located in non-mitigable risk zones and in areas at recurring risk of landslides, mudslides, and river flooding.
The separation and transfer of AUTODEMA land to local governments is authorized.
On May 27, 2025, Law No. 32352 was published in the Official Gazette «El Peruano.» This law authorizes the separation of unaffected land for agricultural use and for purposes awarded to the Majes Autonomous Authority (AUTODEMA). The latter entity is responsible for identifying unaffected land for agricultural use and which, consequently, are not useful for fulfilling the purposes of the Majes-Siguas Special Project.
Likewise, its free transfer is hereby ordered exclusively for housing and urban development purposes in favor of the District Municipalities of Huancarqui, Uraca-Corire, Lluta, San Juan de Siguas, Santa Isabel de Siguas, and Quilca.
INDECOPI declares that the requirement to obtain municipal permits and/or authorizations for projects included in the National Plan for Sustainable Infrastructure for Competitiveness (PNISC) is an illegal bureaucratic barrier.
Through Resolutions No. 0095 and No. 0096-2025, INDECOPI has declared in the final administrative instance that it is illegal for the Metropolitan Municipality of Lima (MML) to require obtaining municipal authorizations and/or permits for the development of projects included in the PNISC and related to transportation and urban mobility infrastructure in Lima.
The measure is due to the fact that, through Ordinance No. 2590-MML, the MML declared the Tenth Final Complementary Provision of Law No. 31955 inapplicable in its jurisdiction, a provision that exempts the aforementioned projects from the processing of the aforementioned authorizations.
INDECOPI has indicated that the MML does not have the authority to disapply a law, and that its powers are subject to the limits established by the laws that regulate the activities and operation of the public sector.
However, INDECOPI has ratified that the MML has the authority to authorize and inspect works carried out in public domain areas that are not covered by the PNISC.
DECLARATIVE CONTRACTS
In this installment, we will address declarative contracts or acts regarding real estate. We seek to determine whether the legal system allows for the execution of this type of agreement whose main purpose is to declare the existence of legal situations. In this way, a person will indicate that they are the owner of a property based on the declaration of ownership granted by its previous owner. Please note that the latter has not sold, donated, or transferred ownership to the person. He has merely declared him the owner, just as a judge, arbitrator, or administrative authority would. The new owner’s title will be the declaration granted by the previous owner.
For this purpose, it is necessary to delve into private autonomy and define whether owners have the power to grant declarative deeds. It is necessary to delve into legitimacy, legality, and possibility, which are the most important requirements of contractual freedom.
Declarative deeds, as granted by the owners and/or registered holders of the property, would meet the requirement of legitimacy. The act would be executed by the person who is or appears registered as the owner of the property. The deed would always include their participation. If this is the case, this requirement is met.
On the other hand, these deeds would also be lawful, as there is no legal mandate prohibiting their execution. There is no law that declares these agreements invalid (principle of legality). Nor does it repudiate public order or good morals. This being the case, these acts are not prohibited.
Finally, legal possibility. Here, it must be demonstrated that the legal system allows for the conclusion of this type of agreement, considering it in some normative factual situation. In principle, the general rules seem to exclude this possibility, although the registry rules do allow it. Let us explain.
Article 140 of the Civil Code, the provision that defines a legal act, establishes that a legal act is a manifestation of intent intended to create, regulate, modify, or extinguish legal relationships. Considering this general definition, a legal act cannot declare legal relationships, but only create, regulate, modify, or extinguish them. The same is true of a contract. Article 1351 of the Civil Code establishes that a contract is the agreement of two or more parties to create, regulate, modify, or extinguish a property relationship. Again, it does not provide that the parties can declare the existence of a property relationship.
A similar lack of foresight is evident in Article 923 of the Civil Code, the provision that regulates the attributes of property. It establishes that property is the legal power that allows one to use, enjoy, dispose of, and claim an asset. It does not indicate that property allows one to declare the existence of other rights. Given this, and considering the general rules, it could be concluded that private declaratory titles, and especially those with a patrimonial scope, would not be permitted.
However, the situation changes when we turn to registry regulations. For example, Article 2019 of the Civil Code establishes that registrable titles are those acts and contracts that constitute, declare, transfer, extinguish, modify, or limit real property rights over real estate. In other words, this regulation assumes the existence of declaratory acts and contracts. Not only that, but they can also be accessed in the Public Registries.
Along these lines, there are resolutions from the Registry Court that have ordered the registration of property recognition contracts, arguing that there is no legal impediment to entering into them and that they seek to regularize unregistered property through a declaration by the registered owner (Resolution No. 558-2017-SUNARP-TR-T and Resolution No. 517-2018-SUNARP-TR-A).
The only requirements established are: (i) that no third-party rights are affected, and (ii) that the recognition ultimately modifies registered rights and does not merely seek to reaffirm them (Resolution No. 2481-2017-SUNARP-TR-L and Resolution No. 546-2018-SUNARP-TR-T). It is important to note that, although there are various resolutions that provide for the registration of a property recognition contract, such pronouncements do not constitute a mandatory precedent or a plenary agreement. Therefore, we do not rule out the possibility that registrars or a registry court, composed of new members, may rule out the registration of property recognition.
In principle, each case must be analyzed individually. However, in light of the foregoing, we see no conceptual or legal objections to allowing the execution of declaratory contracts, whether caused (such as the recognition of obligations), preclusive (such as an out-of-court settlement), or abstract (such as the recognition of ownership). In compliance with the principle of freedom, this type of operation would be permitted, under Articles 1353 and 1354 of the Civil Code.
