Fundamental of the archaeological public domain with special attention to real estate: an alternative proposal to deminiality

Abstract

The Spanish Historical Heritage Law of 1985 declares the public domain of assets of historical value that can be studied with archaeological methodology and discovered, from its come into effect, under the conditions that it determines. This declaration is a novelty compared to the previous legislation and supposes to displace the civil norms and principles that in private law govern the acquisition of movable and immovable property of these characteristics. This work aims, on the one hand, to inquire about the technique used by the legislator to make this displacement, which is especially important when it comes to real estate, since it could be unconstitutional with respect to them. On the other hand, it delves into the foundation that justifies the declaration of public domain of archaeological assets and, after finding it in the special protection regime that it entails, its excesses are also shown, proposing, therefore, to replace it by considering it as assets property of the Administration with notes of the public domain and specific exceptions to them.