EDITION: December - February 2013

The Property Registry and the Land Registry

Texto: Anja Sämann-Gutschick y Armin Gutschick













When preparing to buy or sell a property, it is often discovered that the entry in the Property Registry does not coincide with the Land Registry data, and also, that neither of them actually reflects the real characteristics of the property.
 
At the Property Registry, all contracts and rights related to properties are inscribed. These entries follow the principle of good faith and are presumed to be true, and have legal validity before third parties. The relevant Registry is always the one that covers the territory where the properties are located.
 
Public documents issued by a notary, or executions, or judicial or administrative documents can all be registered. Generally, agreements that are privately documented cannot be inscribed in a Registry. It is not compulsory to register the transmission of property ownership in the Property Registry, although it is highly advisable. The legal security that the principle of good faith offers can have practical relevance, for example, if there should be a double sale: if the owner of a property in the Balearics sells it through a private contract and transfers its ownership to the buyer, this person will become the new owner. If this seller sells the property again later, the second buyer will be covered as the legal owner of the property if s/he did not know about the previous sale and as long as the first buyer has not inscribed the ownership right in the Property Registry.
 



 
The principle of good faith does not extend to the description and size of the property. When the selling price is established independently of the size of the property, and should the real size differ from the registered size, the buyer cannot claim anything from the seller. However, it is of course very different if both parties expressly determine in the contract the size of the property.
 
The Land Registry is an administrative registry that is subordinate to the Ministry of Economy and Taxes in which descriptions and maps of properties are included. The functions of this Land Registry are mainly topographic.
 
The Property Registry and the Land Registry are managed independently. In the past, adjustments were made quite seldom between the data of both registries, and so there are often discrepancies between them. Since 1996, the law obliges notaries and registrars to reflect in public deeds and registry entries the Land Registry reference. For this, both contracting sides present before the notary the latest receipt of payment of the real estate tax which includes the Land Registry reference. Since then, the information contained in both Registries has been slowly adjusted.
 
For historical reasons, often the surfaces of properties in public deeds of sale are not true. In such a case, the only solution is to request a private topography office for a new measurement to be made so that the real size of the property can be determined.

 
 


 
As an example, we will explain next a few cases in which it is advisable to seek the help of an expert:
 
When there are doubts regarding the borders between properties and the neighbours cannot reach an agreement about where the dividing line lies, we must request the opening of a process to demarcate the properties.
 
When a property is not inscribed in the Property Registry, the legitimate owner can be determined through a judicial process called “ownership process”. Another possibility is to carry out a notary process to determine the ownership of the property.
 
When the surface of a property that is inscribed in the Property Registry needs to be changed, this can be done through a notary deed and the Land Registry description