Notes on the land registry
THE ACQUISITION of a property usually involves the signing of a private contract in which the obligations of the parties (buyer and seller) and the deadline for its definitive completion are established, following the completion of the corresponding enquiries on the property. This title deed is signed before a notary public.
The aim of this article is to explain why this process should be followed, on the basis that the final point of the process is to get our title deed registered in the land registry. But why?
Spain is divided into territorial constituencies, the socalled real estate tax districts. Each real estate tax district is assigned its own land registry, managed by the land registrar.
What can be registered in the land registry?
Among other things, title deeds or deeds declaring ownership of real estate or its rights in rem. Other deeds of constitution, acceptance, alienation, modification or extinction of the rights of usufruct, use, mortgage, easements and any other rights in rem.
In this respect, we would like to highlight the possibility of mortgaging real estate that should be subject to registration. Likewise, the right of usufruct is also subject to mortgage, but the mortgage expires when this usufruct is terminated due to events beyond the control of the usufructuary. As long as it is an act of will of the usufructuary, the mortgage subsists until the secured obligation is satisfied or until the term of the natural extinction of the usufruct expires.
Judicial decisions declaring the absence or death or affecting the free disposal of a person's property. Registration of court decisions.
Leasing and subleasing contracts of properties, cessions, and subrogation.
Is the registration of the title deed mandatory?
The answer is no". The Spanish legislation contemplates it as elective.
Hence, if it is optative, the next question would be: Why should we register the title deed if it is not required for the change of property ownership?
There are many reasons for doing so. The function of the land registry is to give publicity to the entries and annotations made in its registry books, in the interest of security and protection of real estate legal affairs.
The registration offers preventive legal safety. Once the ownerships and rights are registered, they are enforced by Courts and the registered information is treated as attested.
When a right, as the ownership of a house, is registered, public recognition of that ownership is achieved. Only the owner of this property is entitled to sign contracts or encumbrances in relation to the asset, such as purchase and sale transactions or mortgages. On the contrary, if there is no information in the register about the ownership, it would be much more complicated to operate that property.
Additionally, the registration or recording of title deeds by means of which possession and rights in rem are declared, transferred, encumbranced, modified or concluded require a previous documented registration or recording of the granting persons´ right or of the person on whose behalf the referred deeds are granted.
Let us consider an example: Imagine A sells to B, the latter does not register the ownership title deeds. Afterwards B sells the property to C. In this case, C could not register his deed of sale, unless B does it before. That is why the contents of the land register are interpreted as genuine and real, unless there is evidence to the contrary.
If the right of ownership is registered in the name of a person other than the person granting the transfer or encumbrance, the land registrar will refuse registration.
Even more, it is a paramount professional resource for real estate professionals, likewise for general public, since its contents are of public domain. The type of information the registers provide are the following:
Nota simple informativa registral, an informative report that contains the identification of the property, ownership/s of the rights registered on it- sole ownership, mortgage, usufruct… its area, origin and limitations.
La nota de localización,a location report that offers only instrumental information, aims to provide the location of the Register, province and locality where any natural or legal person has property or rights registered.
Certificacion de registro, which certifies the content of the entries in the register. Encumbrances, charges or lack thereof on the property or rights in rem may only be proved to the detriment of third parties by means of this type of certification. It has the consideration and probative value of a public document.