In depth
I. What is the background?
A private beach club set up a manned security post with a chain that prevented the free passage of non-members.
Picture: Infored
II. What is the basis for the Constitutional Court's decision?
The Ruling 443/2023 in Case No. 03640-2021-PHC/TC applies Law No. 26856 ("Law"). The Law regulates the legal regime of beaches and declares them as "for public use" (free and general for all) and "inalienable" (cannot be subject to commerce).
Therefore, the Law stipulates that any beach resort, club or urban development adjacent to the beach, under public or private ownership, must have an access road that allows free transit to them. Additionally, such access road must be present at least every thousand meters. This is the only way to ensure the right to free transit, which is fully guaranteed by the Constitution of 1993.
This means that no municipality or administration will authorize urban development projects that do not include free access roads to the beach. In order to ensure that, the owners of the properties adjacent to the beach are the ones who must carry out the construction of such access roads, in accordance with the Law regulations.
III. Must constructions in areas adjacent to beaches therefore be removed?
Not necessarily. If the owners of properties adjacent to beaches have complied on providing a free access roads to the beaches every thousand meters, then the constructions located nearby comply with the legal requirements and subsequently do not have to be removed.
However, if free access to the beaches is not allowed due to the constructions, then the private club or the owners of the real estate adjacent to the beaches must remove the constructions that impede free access to the beaches. In the case of noncompliance, the same municipalities may remove and/or modify these constructions.
IV. Are the effects of the TC ruling erga omnes, i.e., does it have effects for other beach clubs or homeowners associations?
No. Although the provisions ordered by the TC through the judgment under analysis only have legal effects between the parties, i.e., plaintiff and defendant, it is essential that all beach clubs or however associations with beach venues abide by the provisions of the Law with regard to access roads and free transit to the beaches, as well as the provisions of the TC Ruling. Only in this way, the owners will be able to prevent future contingencies and possible lawsuits regarding the restriction of the freedom of transit and modification of the structures they have built.
We trust that this information is of relevance to you and your company. If you require further information, please do not hesitate to contact us.
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