Derecho Inmobiliario y cuestiones Fiscales
If you are the owner of land in Spain or wish to buy some, without doubt you have realized the tremendous chaos that exists concerning the surfaces… Whilst in the Property Registry office there appears one measurement, in the Land Registry there is another and on top of it all the actual surface is another!!
What needs to be done in these cases?
The best is to consult with a specialist, as the regulations change and sometimes this type of proceeding can take a long time. Above all, if you are thinking of selling your property it is much better to clarify this matter as soon as possible and this way make the sale easier when a purchaser appears. Additionally a lot of documents are required.
In any case, the Mortgage Law provides us with two proceedures:
1. Article 201.3 LH
When the difference of capacity does not exceed 10%, a shorter quicker way is allowed to proceed with the rectification, always before a Notary and one must distinguish between:
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When the difference of capacity does not exceed 10%: This must be proved with a descriptive chart land registry certificate and that from the respective descriptive details is seen full coincidence between the plot in the certificate and the registered property.
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When it does not exceed the 5%, merely with the statement of the grantor.
Once the public deed of rectification is signed, the Property Registrar should issue a legal ruling explaining that there is no doubt concerning the truth of the requested rectification. Should there be any doubt he may refuse to continue with the registration.
What can cause a doubt? Well, for example, that there has been a previous separation. Or that double is intended to be registered. If there are no doubts, he will carry out the process and proceed to notify the neighbours.
2. Article 201.1 203 LH
We are before the named «dominion file» and here appear all the excess capacity above the difference of 10%. This is carried out as well before a Notary, who will send the act and all the necessary documents to the Registrar, amongst which will be a list of the details of any type that the promotor may have to locate the neighbouring properties.
The Registrar will have 15 days in which to issue a certificate, after checking his files, concerning the rectification whose registration is requested. The same as above, if the Registrar has justified doubts about the total or parcial coincidence of the property whose rectification is requested, he will proceed to issue a refusal note of the requested registration. If he has no doubts, he will proceed with the entry note and will send his certificate to the Notary. The entry note will be valid during 90 days (this can be extended up to a maximum of 180 days).
Following this, the Notary will notify this intention to all the interested parties as well as the owners of the neighbouring properties, in order that they may place their declarations before the Notary and provide written evidence of their right within the period of one month. If someone opposes, the Notary could file away the actions and the promotor could only act against he who has opposed through a court hearing before the Judge of first instance corresponding to the place where the property is located.
If, on the other hand, the classification is positive, the Registrar will proceed with the registration and will order the publication of its edict in the Official Government Bulletin ( Boletín Oficial del Estado.)
In summary, if the difference is not more than 10%, we would advise the rectification as soon as possible, as the laws change and to have to carry out this type of rectification through the proceeding explained in the second section, is a much longer process and more expensive. Whilst before the reform of the Mortgage Law it was easy to register excess capacity up to 20%, we now find ourselves that this has been reduced to 10%, and we do not know what might take place in the future. So the sooner this is dealt with, the better!!
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