“A quality of justice is to render it promptly and without delay; making it wait is injustice.”
Jean de La Bruyère
Article 31 of Law No. 108-05 on Real Estate Registry is clear in assigning, in principle[1], only to the defendant, by means of a counterclaim, the possibility of requesting compensation for damages before the Land Courts. This provision has been the subject of numerous doctrinal criticisms, based on the argument that it directly violates various procedural and constitutional principles, such as: the principles of Effectiveness, Procedural Economy, Procedural Expediency, Concentration, Equality, Legal Reasonableness, Due Process, and the Right to Effective Judicial Protection.
We believe it is important to recall that the Land Courts are concerned with real property rights, and therefore personal actions, except for those previously cited in the footnote, fall under the jurisdiction of the ordinary civil court. However, a perspective that is gaining increasing support advocates for allowing damage claims before the Real Estate Jurisdiction, provided that the main matter falls within the scope of this jurisdiction and the compensation requested is a consequence of the conflict arising therefrom.[2]
This approach is appropriate, fair, and equitable for both parties. It promotes procedural expediency and equality of arms. In other areas, such as labor and criminal law, it is both accepted and entirely possible to address civil matters accessory to punitive ones. Why, then, must the Land Courts be the exception? The natural judge handling the merits of the case is – generally speaking – the most competent to assess and quantify the damage caused based on what has already been decided.
From this reasoning arises the following question: Would the Land Courts lose their essence by admitting this type of action? We believe they would not, since one of the judge’s powers is the implicit competence to deal with the incidents specific to each case. It follows that the judge with jurisdiction over the main matter is also competent to hear accessory or incidental issues. Furthermore, the Real Estate Judge was conceived to exceptionally hear personal actions, as there are many cases in which the Real Estate Judge is competent to hear purely personal actions without losing his or her essence – the real action that connects them.
Failing to adopt this approach, Magistrate Kathy Soler[3] believes that “it is unreasonable for the parties to have to wait through an entire process with all instances until a final judgment with the authority of res judicata is reached before starting another proceeding, which is procedurally abusive.” In addition, Magistrate Ana Magnolia Méndez also holds the opinion that “if they are competent to hear the main issue, they must also hear the accessory one, in this case, damages.”[4]
Despite the above considerations, our Supreme Court of Justice has clearly established[5] the criterion that damage compensation may only be sought by way of counterclaim, as stated in Article 31 of the Real Estate Registry Law. This suggests that the Court’s reasoning was that the legislator’s intention with this article was solely to mitigate reckless litigation and the deliberate intent to cause harm by initiating actions over registered rights without lawful cause. However, this assertion directly violates several fundamental principles enshrined in the constitutional framework, such as:
Violation of the right to equality[6]
When accessing justice, both parties seek assurance that they will enjoy equal opportunities to bring action or present their defenses. By granting only the defendant the opportunity to claim by way of counterclaim, this article infringes upon the right to equality as established in our Constitution.
Violation of the principle of reasonableness
Article 40.15: No one may be compelled to do what the law does not require, nor prevented from doing what the law does not prohibit. The law is equal for all: it may only mandate what is just and useful for the community and may only prohibit what harms it. (Emphasis added.)[7]
Justice must ensure the reasonableness of the law so that the law is efficient. Unreasonableness must be addressed, especially when a law fails to meet the constitutional criteria to be deemed reasonable. Based on the analysis of Article 31 of Law No. 108-05 on Real Estate Registry, we can infer that it does not meet the standard of reasonableness, as it is neither fair nor useful.
Firstly, we consider it not useful because, for the claimant to pursue damages before this jurisdiction, they must wait for the conclusion of the case over registered rights (the main issue) before filing for damages in the ordinary civil court. However, we maintain that it is precisely the Land Courts that are best suited to assess and quantify these damages because: Who better to determine damages than the judge who knows the merits of the case? The real estate judge is deeply familiar with real estate terminology and regulations, making them the one who truly understands the extent of the damage previously judged and verified through their expertise.
Secondly, we believe it is also unfair in light of what has already been stated regarding the principle of equality. Here, only the defendant is allowed to seek damages, which departs from the principle’s essence — equal opportunities and equal treatment before the courts. On this matter, in a presentation delivered by Héctor Alies at the OMG Institute regarding damages via accessory means before the Real Estate Jurisdiction, he stated that Article 31 violates the principle of equality because only the defendant has the prerogative to bring a claim for damages. From an equality perspective, if the defendant believes the claim is frivolous: Should they not also have to wait for the conclusion of the main action in the land court and then bring a claim before the civil jurisdiction for damages due to abusive exercise of rights?[8]
We agree with the above arguments and share the view that the current way in which the Real Estate Jurisdiction handles damage claims under Article 31 of the Real Estate Registry Law constitutes a clear violation of both the principle of equality and the reasonableness of the law.
c) Violation of due process and effective judicial protection
Article 69 of our Constitution guarantees the effectiveness of fundamental rights through mechanisms of effective judicial protection, allowing individuals to obtain satisfaction of their rights against their debtors. It binds all public powers to the obligation to protect fundamental rights, which must be guaranteed effectively in accordance with the Constitution and the law — a standard that, in our view, is not currently being met.
In light of the above considerations, we argue that in this context, the judge ruling on the main issue should also be the judge of the exception, as this would preserve the rights discussed above and make Real Estate Justice more efficient and functional. This, in turn, would require, in the short term, legislative reform through Congress to ensure that the current situation takes a new course — one in which the effectiveness and efficiency of real estate proceedings are guaranteed.
[1] In principle, because there are personal actions that are also under the exclusive jurisdiction of the Land Courts, for example: 1) Claims related to the guarantee fund for registered properties; 2) Claims related to conflicts arising from the surveying contract; 3) Claims related to disputes arising from the conditional sale of real estate under Law 596-41; 4) Claims arising from Law 5038 on Condominiums and its application.
[2] HERNANDEZ PERERA, Yoaldo. “Armonización de la Ley Núm. 108-05 sobre Registro Inmobiliario y sus Reglamentos.” Accessed August 1, 2018. Available at: www.yoaldo.org
[3] SOLER, Kathy, Judge of the Third Chamber of the Superior Land Court. Interview conducted on May 24, 2017, on the fourth floor of the Real Estate Jurisdiction Building, cited by Lic. Joel del Rosario Alburquerque in thesis titled “La acción en reparación de daños y perjuicios ante la Jurisdicción Inmobiliaria“, 2017, available at Pontificia Universidad Católica Madre y Maestra (PUCMM) Library.
[4] MÉNDEZ, Ana Magnolia, Judge of the Second Chamber of the Superior Land Court. Interview conducted on May 24, 2017, on the fourth floor of the Real Estate Jurisdiction Building, cited by Lic. Joel del Rosario Alburquerque in thesis titled “La acción en reparación de daños y perjuicios ante la Jurisdicción Inmobiliaria“, 2017, available at Pontificia Universidad Católica Madre y Maestra (PUCMM) Library.
[5] SCJ Judgment, 3rd Chamber, No. 161, dated April 29, 2015. Available online: http://www.poderjudicial.gob.do/consultas_sentencias/fallos_nuevos.aspx
[6] Article 39.- Right to Equality. All persons are born free and equal before the law, receive the same protection and treatment from institutions, authorities, and other individuals, and enjoy the same rights, freedoms, and opportunities without discrimination.
[7] Dominican Republic, Constitution of the Dominican Republic, June 13, Official Gazette No. 10805, July 10, 2015. Article 40.15
[8] ALIES, Héctor. Presentation on Accessory Damages via Principal Claim before the Real Estate Jurisdiction. Delivered at the OMG Institute. November 9, 2016. Time: 6:00 pm to 8:00 pm, cited by Lic. Joel del Rosario Alburquerque in thesis titled “La acción en reparación de daños y perjuicios ante la Jurisdicción Inmobiliaria“, 2017, available at Pontificia Universidad Católica Madre y Maestra (PUCMM) Library.
