The reform arising from the Law 13/2015 has created the increase of the presence of the notary in the proceedings of uniting details between the Property Registry and Land Registry offices, which can only be seen as a positive measure as on one side it increases the security and transparency for the interested party and on the other it lowers costs and time period. As lawyers it is our obligation to actively collaborate with the notaries and specialists to obtain this end, always advising the client in an efficient and clear manner. Above all, it is important to distinguish the figure of the lawyer and that of the notary in Spain. Whilst, on one side, the lawyer is the professional in charge of defending a client, always in their best interest; the notary is a public servant whose main aim is to vouch for the acts and legal Business matters, as well as to safeguard the rules. We make this brief comment, as we realise the confusion caused to many of our foreign clients, as in other legal systems these two figures are generally as one. For example, in an Enlgish solicitor. Having mentioned this, we now pass on to deal with the problems that really worry our clients and friends: the fact that in the Property Registry office there appear certain details and in the Land Registry others, and lastly that in the reality the details are others. The above mentioned Law greatly altered these proceedings. One of the most important modifications was that of the surplus of capacity. That is, when in the Property Registry appears a surface and in the Land Registry there appears another. This proceeding should take place before a notary. In this link you will find further information concerning this, but in summary we provide this clear diagram, dividing the proceeding when the difference is no more than 10% and when it is more.
- No more than 10%
- Art 201.3 Mortgage Law
- Up to 5% is sufficient a simple declaration Of the granter before the notary
- From 5% to 10% proof must be shown with A land registry certificate and chart
- More than 10%
- Arts. 201.1 & 203 Mortgage Law
- A longer proceeding, as the Notary must notify the file to all neighbours and interested parties
However, if both the Property Registry and Land Registry Offices have incorrect details, we can find ourselves in the following situations: If, on the other hand, the Land Registry is incorrect and the Registry is correct, a deed of land registry alteration must be drawn up and then the coordination. Another of the most important alterations of the Law has been the appearance of the “georeference coordinates” Why do we lawyers always request this document? Of what use is it? Well, it is not just for the sake of asking, but that the law demands this document be provided in the majority of cases when the geographic identification is required for the registration. If we carefully read the art. 9 Mortgage Law, in its section b) we can see that it will be compulsory to provide this document in the cases of the below, always when causing a re-planning of the land. Once we know all this, the ideal road to take is to previously alter the details appearing in the Land Registry in order to then register these details in the Property Registry office through a public document signed before a Notary. Therefore, it is vital, and here is where the game starts between lawyer, notary and Surveyor, to study all the documents; draw up a survey study with all georeference details of the actual borders of the property, including a report of the separations; study of age, surfaces and uses in the case of declaration of new construction, including the geoseparations of the survey point; as well as the communications in order to alter the registry details and follow up of the proceedure. PRACTICAL ADVANTAGES We are speaking above all of the coordination between the Property Registry and Land Registry offices, but lets be practical, what advantages are in this? Well there are many advantages!! And here are some of them:
- On one side we have the art. 38 LH that informs us that «it is presumed that the Rights appearing in the Registry exist and belong to its owner in the manner as the entry appears». Therefore, we have a presumptio iuris tantum, that is, that proof to the contrary is admitted, of what is entered in the Registry is correct. This way, the person who is purchasing an asset can be without worry and sure.
At the same time, we will be able to extend the real details of the presumption of legality and possess the maximum influence granted by the Property Registry office for the registry publicity that cannot be ignored by third parties.
- Non assail of the limits of the plot, prior tempore potior iure
- Security for future purchasers and this way, sale in a safer manner providing a higher economic value to the property
- The bank giving the mortgage will be much surer.
- Avoid problems with the heirs of neighbouring properties
- Be in the legal and definate knowledge of the boundaries of the plot.
And even though it appears complicated, this is not so if you have a team of lawyers and specialized consultants in the matter, up to date and informed, and who know how to guide you at all times and indicate the steps to be taken in order to obtain your aim. Our lawyers in Mallorca and Ibiza, highly qualified in Real Estate and Planning Law, would take pleasure in studying your personal case.
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