Legal Analysis
Decree 1037 of 2026 established detailed rules for Colombia's accessory right of superficies over public property. This guide explains its scope, uses, formalities, and principal risks.
Colombia's accessory right of superficies is no longer limited to a narrow or largely theoretical use. Decree 1037 of 2026, effective August 7, 2026, established detailed rules for public entities that wish to allow a third party to build, develop, and operate a project above, below, or on publicly owned land while the public entity retains ownership of the base property.
The instrument may support transportation infrastructure, housing under tenure models other than ownership, social facilities, and other compatible projects. It is not, however, an automatic solution to a housing or financing problem. Each project depends on the property's public purpose, land-use rules, procurement regime, legal and technical studies, financial feasibility, risk allocation, and the terms of the contract.
The accessory right of superficies, or DRS under its Spanish acronym, is a temporary right granted by a public entity that owns public-use or fiscal property. The selected third, party the superficiary, may construct, develop, and operate buildings, infrastructure, or projects at its own cost and risk. The public entity, the grantor, keeps title to the underlying property.
The right must arise from an onerous contract, be executed as a public deed, and be registered. Article 284 of Law 2294 of 2023 permits a maximum term of 80 years, including extensions. The specific duration must be supported by the project's approved financial model and written into the contract.
The decree distinguishes the base property from the autonomous construction developed by the superficiary. The exploitable area may be located at ground level, underground, or in the airspace above an existing property or structure, subject to land-use, technical, environmental, and safety requirements.
The right does not transfer the base property. Registration instead identifies the relevant area and may create accessory sub-registries for the surface units. Registrable transactions affecting those units can therefore be recorded without moving them to the base property's land registry folio.
The statutory DRS should not be confused with a person merely constructing an improvement on land owned by someone else. The DRS has a specific legal source, public-property scope, term, contract, deed, and registration process. Its effects, including the temporary separation between the land and the autonomous construction, depend on those formalities.
This distinction also matters for private land. Decree 1037 regulates rights granted by public entities over public-use or fiscal assets; it does not by itself create a general DRS regime for every private landowner. Private projects require analysis under the applicable property and contract rules and should not be presented as falling within this decree without case-specific review.
Law 2079 of 2021 addressed the DRS as a value-capture instrument for urban transportation infrastructure. Law 2294 of 2023 broadened the framework, and Decree 1037 supplied the operating rules needed for implementation. The result is a special regime covering legal, contractual, urban-planning, technical, financial, notarial, registry, and cadastral matters.
The decree applies to public entities that own public-use or fiscal real estate. A project must be compatible with the applicable land-use instruments and may not impair the property's public purpose, public use, or service function.
Special limits apply to certain spaces. In public parks, green areas, plazas, and similar public spaces, construction under the DRS may occur only underground. Transportation assets are also subject to mode-specific operational and safety restrictions.
The contract must identify the parties, the base property and exploitable area, the project, term, compensation payable to the public entity, performance obligations, termination events, and reversion conditions. It must then be elevated to a public deed and registered against the base property's land registry folio.
This is not a shortcut around public procurement. Selection and contracting follow the legal regime applicable to the public entity. Public-origin projects require prior studies and objective selection. A private proponent may submit an initiative and the required studies at its own cost and risk, but that initiative does not automatically become a public-private partnership or confer a right to the project.
Accessory sub-registries can individualize the exploitable area and surface units. Subject to the law, contract, and urban-planning rules, registrable encumbrances or limitations may be recorded against those units without altering ownership of the base property.
That possibility may help structure financing, but it does not make every project bankable. Lenders and investors must assess the remaining term, termination events, priority of security interests, step-in or cure rights, insurance, permitted transfers, and the consequences of reversion.
At the end of the right, the decree's general rule is that the buildings and improvements become part of the base property and pass to the public entity without compensation to the superficiary. The economics of construction, operation, maintenance, and exit must therefore be modeled within the contractual term.
On property allocated to public transportation systems, the DRS may allow complementary urban development or economic uses in the soil, subsurface, or airspace, subject to continuity, safety, and operational requirements. Revenues generated from transportation property must follow the statutory destination applicable to the transportation system or its manager.
For public property not associated with transportation infrastructure, the decree allows the instrument to be used to finance housing projects that promote tenure models other than ownership, including leases, use agreements, loans for use, or other arrangements adopted under the relevant public policy.
This wording matters. The decree does not promise that residents will acquire title to the land or to a permanent home. The proposed tenure, affordability conditions, allocation rules, maintenance duties, consumer protections, and consequences at the end of the DRS must be designed separately and explained to future occupants.
The framework also permits the construction, expansion, or adaptation of social facilities and complementary buildings when they are compatible with the land-use instruments and the purpose of the base property. Whether a particular use qualifies depends on the asset, the entity's authority, and the project studies, not on the label given to the project.
A public entity may originate the project and conduct the required studies and selection process. A private party may also submit a proposal, but must prepare the legal, urban-planning, technical, and financial studies at its own cost and risk. The entity evaluates the initiative and remains bound by its procurement regime and the principles of transparency, publicity, objective selection, and competition.
The legal review should confirm the nature and title of the base property, existing contracts, concessions, disputes, registry status, boundaries, and project risks. Urban-planning and technical work must address permitted uses, development parameters, structural capacity, connection to public services, environmental and mobility impacts, and mitigation measures.
The financial model should cover investment, construction, operations, maintenance, revenue, compensation to the public entity, sensitivity scenarios, valuation, and risk allocation. Under the decree, the superficiary generally assumes the investment, construction, and operating risks, subject to the specific rules for early termination not attributable to it.
An approved DRS does not replace planning approvals or construction permits. Autonomous buildings require the relevant urban-planning licenses, and the project must comply with the local land-use plan and its implementing instruments. Procurement, registry, cadastral, tax, environmental, and sector-specific requirements may also apply.
Argentina regulates a broader real right of superficies in Articles 2114 through 2128 of its Civil and Commercial Code. It may be created over another person's property for construction, planting, or forestry and can coexist with separate ownership of the land. For construction, the statutory maximum term is 70 years.
That regime can involve private landowners and should not be imported into Colombia by analogy. The Colombian DRS discussed here is a special public-property instrument with its own procurement, public-purpose, registration, and reversion rules.
A U.S. ground lease is a contractual leasehold, not a uniform federal equivalent of the Colombian DRS. Its consequences depend on state law, the lease, financing documents, and the project. As a concrete example, New York City's housing agency explains that community land trusts retain the land and typically enter into 99-year ground leases with owners of affordable buildings.
The example shows how separating control of land from control of improvements can support long-term policy goals. It does not establish a nationwide rule or prove that the same structure will produce the same results in Colombia.
The three models differ in legal source, eligible grantors, assets, maximum term, registration, public procurement, permitted uses, transfer and security rights, and consequences at expiration. A familiar label such as “ground lease” should therefore be used only as a comparison, not as a legal translation of the Colombian DRS.
The DRS may help a public entity activate an underused portion of an asset without selling the underlying property. It can also give a project a registrable framework and a contractual term long enough to recover investment. The entity may receive money, a share of project revenues, built areas or units, or a combination established in the contract.
These are structural possibilities, not assured benefits. The value of the right depends on demand, permitted uses, construction cost, financing, interfaces with existing infrastructure, compensation to the entity, and the project's ability to operate throughout the term.
An 80-year ceiling does not mean every project receives 80 years. The approved financial model and procurement process determine the contractual term. Early termination, defects in title or boundaries, delay in permits, interference with public services, refinancing limits, and unclear treatment of security interests can materially affect bankability.
Reversion is equally important. Because the autonomous structures ultimately integrate into the public asset without compensation under the decree's general rule, the project must align debt maturity, capital recovery, maintenance, and handback standards with the remaining DRS term.
The base property's public purpose remains controlling. A commercially attractive proposal may still be unviable if it affects public use, conflicts with planning rules, compromises transportation safety, or exceeds the public entity's authority. Regulatory change, community participation, environmental approvals, procurement challenges, and disputes over valuation or risk allocation should be addressed early.
Colombia's housing need provides an important policy context. The 2025 National Quality of Life Survey reported a national housing deficit of 25.6%, combining quantitative and qualitative deficits. It also found that renting was the predominant occupancy arrangement for 40.8% of households.
The DRS may help separate land cost and land ownership from the operation of a housing project on public property. Still, the instrument alone does not determine affordability, quality, eligibility, subsidies, rent levels, resident protections, or long-term maintenance. Those outcomes depend on project design, public policy, financing, and enforceable contractual obligations.
The prudent conclusion is therefore conditional: the DRS can be one tool in a broader housing strategy, but its social effect must be evaluated project by project and measured against defined outcomes.
Not under the decree's public-property framework. The grantor contemplated by Decree 1037 is a public entity that owns public-use or fiscal property. A private landowner may have other contractual or property-law options, but their nature and effects require separate analysis.
The decree permits registrable acts, including encumbrances or limitations, to be recorded in the relevant accessory sub-registry, subject to the law, contract, urban-planning rules, and the DRS term. The enforceability and priority of a proposed security package should be reviewed before financing.
When the DRS expires or is terminated, its temporary effects cease. Under the decree's general rule, the buildings and improvements integrate into the base property and pass to the public owner without compensation to the superficiary. The contract must address termination and reversion conditions in detail.
The Colombian DRS is a registrable real right created within a special statutory regime for public property. A ground lease is generally a contractual leasehold governed by the relevant U.S. jurisdiction and lease documents. The two can solve similar structuring questions, but they are not legally interchangeable.
Decree 1037 of 2026 moved Colombia's accessory right of superficies from a limited legislative framework to a detailed implementation regime. Its potential lies in separating temporary development and operation rights from ownership of public land. Its difficulty lies in coordinating public purpose, procurement, title, planning, engineering, finance, registration, operation, and reversion within one project.
For developers, investors, lenders, and public entities, the first question is not whether the DRS is attractive in the abstract. It is whether a specific public asset, use, procurement route, financial model, and risk allocation can satisfy the law and remain viable throughout the contractual term.
View Juan Diego Cala's professional profile.
This content is for informational purposes only and does not constitute legal or tax advice. Obligations vary by jurisdiction, structure, and the specific facts of each matter.
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