Costa Blanca News

Notes on the land registry

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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.

 ?? ?? Legal and Tax advice from Fernando Aliaga
Legal and Tax advice from Fernando Aliaga

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