Spanish Property Law: Key Concepts and Regulations

Posted on Apr 30, 2024 in Law & Jurisprudence

UNIT 7: The Land Registry

27. Real Action for Registration under Article 41 of the Land Registry Law

Option 1: Characteristics of the Procedure (Article 41 LH and Civil Procedure Law)

  1. Purpose: Ensuring the effectiveness of registered rights.
  2. Active Legitimacy: Owners of a registered right whose validity is proven by certification of the corresponding entry without contradiction.
  3. Passive Legitimacy: Those who oppose or disturb the registered right without a registered title.
  4. Procedure: Oral trial procedures with some specialties.
  5. Summary Procedure: Defense and attack are limited.
  6. No Final Decision: Regarding the right of the opponent.

Option 2: Defendant’s Grounds for Opposition (Article 444.2 of the LECI)

  1. Falsification of the Registration Certification or omission of registered rights or conditions that detract from the action exercised by the defendant.
  2. Possessing the property or enjoying the right by contract or other direct legal relationship with the last owner or previous owners, or by prescription, provided that it harms the registered right.
  3. The property or right is registered in favor of the defendant, justified by submitting a Land Registry certification proving the validity of the registration.
  4. The right held by the defendant is not actually registered.

28. Requirements for Third-Party Mortgage Protection under Article 34 of the Mortgage Law

  1. Acquiring ownership or real rights over real estate (creditors who fail to note attachment are not protected).
  2. Acquiring the right from a holder who has previously registered it in the Registry.
  3. Acquiring in good faith, presumed at the time of purchase (may require keeping up with registration) and may involve checking the property’s possessory situation.
  4. Purchase consideration: gratuitous purchasers have no more protection than their transferor.
  5. Registering your right in the Registry.

29. Article 32 LH and the Principle of Unenforceability: Example

Typical cases of Article 32 involve conflicting rights of two purchasers from the same seller, with no doubt about the seller’s ownership. For example, in a double sale of a property owned and registered by the seller, Article 1473 of the Civil Code grants ownership to the first to register. If Article 32 LH is considered separate from Article 34 LH, the first to register would acquire ownership, even if they were not the first purchaser.

30. Usucaption and Article 36 LH: Case Study

Juan is the registered owner of a property possessed by Pedro, who is 3 months away from perfecting usurpation. Juan sells the property to Antonio, who registers the purchase. Antonio can interrupt Pedro’s possession within the remaining 3 months if:

  1. Antonio does not meet the requirements of Article 34 LH.
  2. Even if Antonio meets the requirements, he knew or had reasonable means to know about Peter’s possession before acquiring the property.

If Antonio meets the requirements and was unaware of Peter’s possession, he has one year from acquisition (registration) to interrupt the usurpation.

31. Principle of Priority Registration and Consequences

Top Priority (Article 17)

Once a title or right is registered, no other incompatible title or right of the same or earlier date can be registered.

Consequences

Incompatible registrations are refused. Compatible rights can coexist, but the pre-registered right prevails (e.g., a registered easement is respected by a subsequent usufruct).

Date and Time of Registration

The date of presentation is considered the registration date, provided the registration is completed within the 60-day registration period (Articles 17 and 66 LH).

UNIT 8: Ownership and its Contents

32. Characteristics of Ownership in French and Spanish Civil Codes

The Spanish Civil Code, unlike the French Civil Code’s absolute and unlimited view of ownership, emphasizes a more nuanced approach:

  1. General: Ownership grants specific powers and limitations, encompassing all lawful uses of the property.
  2. Abstract: Ownership can exist even without all typical powers or utilities, as long as it’s not reduced to an empty shell.
  3. Elastic: Powers or utilities limited by law or other rights revert to the owner when the limitation ceases.
  4. Diverse: While the Civil Code provides a general framework, specific regulations address different types of property (e.g., mines, water, intellectual property).

33. Social Function of Property and the Spanish Constitution of 1978

  1. Law Defines Limits: Property rights are not unlimited but are defined and limited by law.
  2. Delimitation According to Laws: Limitations must be based on state or regional laws and regulations.
  3. Respect for Essential Content: Limitations must respect the essential content of property rights (Article 53.1 of the Spanish Constitution).
  4. Diversification of Property Regimes: Different types of property have different social roles and regulations.

UNIT 9: Defense of Property

42. Industrial Action Relating to Real Estate: Concept and Requirements

Concept

The real action for repossession allows an owner who is not in possession to reclaim the property from someone who possesses it without a valid right.

Requirements

  1. Ownership: The plaintiff must prove ownership of the property.
  2. Possession by Defendant: The defendant must currently possess the property without a valid right.
  3. Identification of the Thing: The property claimed must be perfectly identified.

Difference from Declarative Action of Domain

The declarative action of domain is directed against someone who disputes ownership without possessing the property. It does not seek restitution of possession.

Difference from Negatory Action of Easement

The negatory action of easement is used by an owner to declare the absence of an easement or other limited real right claimed by the defendant.