Common Land Registry Issues and Solutions: A Practical Guide
1. Deed of Gift Filing Deadline
Scenario: A deed of gift is presented in the Property Registry number 22 of Barcelona on April 2, 2009. What is the exact day the filing seat expires if not extended?
Practical Solution: July 11, 2009
Basis of the Solution: The seat has a term of sixty working days, excluding the day of presentation (arts. 17 LH and 109 RH). July 11th is still in force until the closing time of the day, 6:00 PM (section 360 RH). Holidays and Sundays are excluded, but not Saturdays, as they are considered working days for these purposes.
2. Public Deed of Sale Filing and Registration Time
Scenario: On May 2, 2009, a public deed of sale is presented by fax. On May 6, the fax is consolidated with the physical layout and removed for paying taxes. It is not reintroduced until July 11th. How long does the registrar have to register?
Practical Solution: As shown on display 59 of the seat, an automatic extension of 14 days can occur for the Registrar to dispatch the document.
Basis of the Solution: To avoid the Registrar being required to dispatch in a single day, or possibly in a few hours depending on the time it was resubmitted, LH Article 18.3 allows an automatic extension until the end of the qualifying period and clearance. (15 days if you have the last day, 14 if you have the penultimate, etc.).
3. Finding All Properties Owned by an Individual
Scenario: As lawyers, we need to know all the properties of an individual to decide whether or not to bring a claim against them. What can we do?
Practical Solution: Contact any Land Registry and request that they consult all property registers of Spain through the Computerized General Index. Note that this information is for informational value only.
Basis of the Solution: Arts. 332.9 and 222.8 LH and RH 398.c
4. Proving Property Ownership in Court
Scenario: We need to prove in court that the property “X” is ours. What can we do?
Practical Solution: Request a certificate from the Registrar as authentic evidence.
Basis of the Solution: Art 222 LH
5. Distribution of Proceeds from Auctioned Property
Scenario: An estate is encumbered by a first mortgage (1H) of 130,000 euros, a second (2H) for 103,000 euros, a notation (1E) for 7,500 euros, and another attachment annotation (2E) for 3,000 euros. 2H runs and you get 109,000 euros at auction, paid for by the highest bidder (R). What happens to each of the three rights and the highest bidder? How is the money made split? (Assuming no interest and expenses other than the principal of the respective debts).
Practical Solution:
- 1H remains unchanged; the execution is not affected.
- 2H is canceled and receives 103,000 euros.
- 1E is canceled and collects the remaining 6,000 euros (the rest should be pursued outside the record).
- 2E is canceled and will not receive anything; it must also be pursued outside the registry.
- R acquired the estate with the burden of 1H.
6. Declaring Completion of New Construction
Scenario: A developer wants to declare the new work complete on a single-family house built in Barcelona. What is needed for its effective registration?
Practical Solution:
- Present the deed of declaration of new work.
- Include the planning permission granted by the municipality.
- Provide the technical certificate from the architect stating that the works comply with the project for which the license was obtained.
- Deposit the building book in the registry.
Decennial insurance is not required as it is an autopromotor (self-promotion).
Basis of the Solution: Article 19 and DA of the LOE and arts. 45, 46, 47, 49, and 50 RD 1093/1997, of July 4. Art. 25.4 Llei 18/2007, of 28 de desembre, the Dret a l’Habitatge
7. Challenging Ownership Based on Inaccurate Inmatriculation
Scenario: A promoter registered land in their name on April 20, 2008. Now, B asks us, as lawyers, to advise them on the fact that they claim to be the owner of the property in question, proving in court with a corresponding statement that A was not the holder. What about the registration of the property on behalf of A?
Practical Solution: The Registrar, upon presentation of the court decision declaring B as the owner, should cancel the inmatriculation in A’s name and register it in the name of B.
Basis of the Solution: Public faith does not protect the inmatriculant when the inmatriculation of the domain is flawed, such as when a requirement of Article 34 LH is missing: the inmatriculant does not have the power to transmit the property.
8. Challenging Ownership After Property Sale
Scenario: A registered a property in their name through acceptance of inheritance on April 20, 2006. On May 5, 2008, they sold it to B. Now, on April 7, 2009, C is claiming ownership of the property. What about the registration of the property in the name of B?
Practical Solution: Nothing can be done. More than two years have passed since the farm inmatriculation, so the buyer (B) is protected by the public faith of the registration.
Basis of the Solution: Art 207 LH
9. Resolving Double Inmatriculation
Scenario: What if there had been a double inmatriculation for two different people?
Practical Solution: If there is no agreement between the parties, a judge of First Instance can be petitioned to order the Registry to request the extension of a marginal note warning of the double inmatriculation. Alternatively, an ordinary declaratory judgment can be filed directly. In any case, the solution lies in the hands of a judge.
Basis of the Solution: Art RH 313.
10. Correcting Property Size Discrepancy
Scenario: A, the holder of an estate in Madrid, discovers that the farm is actually 2999 m2 instead of the 3,000 m2 recorded in the registry. They want to declare the correct size of 2999 m2 in the registry. How can they do this?
Practical Solution: Since the discrepancy is less than one-twentieth of the registered area, it can be declared in writing (prior to the declaration of new work) without providing any documents. However, this is contingent on the Registrar having no doubts about the identity of the farm.
Basis of the Solution: Art 3298.3.4 RH.
11. Property Title Reflecting Different Farms
Scenario: A (buyer) wants to purchase property “X”. They request the title from the seller (B) for review and notice that B did not buy property “X” but farms “J” and “C”. They request a simple note and discover that property “X” is registered in the name of B. What is the explanation?
Practical Solution: B likely purchased farms “J” and “C” and later consolidated them to form a new farm, “X”.
Basis of the Solution: Art 45 Rh.
12. Registrar Denying Registration of Family Home Sale
Scenario: A, a married registered owner, sells their family home to B. B urges registration, but the registrar denies it. What are the likely reasons for the refusal?
Practical Solution: The registrar likely requires the consent of A’s spouse or judicial authorization.
Basis of the Solution: Art 91 HR.