The main function of a property registry is to provide reliable information and legal safety to citizens; they can rely on what is recorded there at the time of contracting on ownership or any other real estate rights: full and legal ownership, encumbrances, loans, charges, easements, habitation rights, ownership limitations, prohibitions for transference, judicial actions on the property, embargos...
Land Registry was created in Spain in 1861 to cover three goals:
1. - To provide solid foundations to the mortgage loan system.
2. - To provide protection to the holders of registered rights
3. - To provide speed to real estate legal traffic.
In some jurisdictions, such as German, registration is mandatory in order to convey the property. In other countries such as Spain, registration is voluntary, but it has huge and inmensely relevant advantages that make it highly advisable!
Some registration principles in Spain:
1. - Principle of request: Any registration in the Land Registry must derive from the request of interested party; the Registrar can not record rights ex officio.
2. - Principle of priority: "First in the registry, better in Law". Once a right is registered, any other non- compatible right cannot win over it. For instance: in the case of double sale of a estate (a person sells a property twice, taking advantage that the first purchaser has not registered the property) the ownership will belong to that one good faith buyer who has duly recorded the right in the Land Registry, leaving the other only entitled to claim a compensation.
3. - Principle of Register Public Faith: This principle has the aim to provide legal safety to the market: "that which is not in the Register,is not in the reality". It is important to remark that the principle of Public Good Faith covers just purchasers for good and valuable consideration acting in Good faith. Good faith is supposed and who denies it need to prove it.
4. - Principle of legality: Just valid and perfect right titles are registered. The legal judgement on validity and fullness is the mission of the Land Registrar.
5. - Principle of publicity: Nobody can allegate ignorance of what is recorded in the Land Registry
6. - Principle of legitimacy: All the Land registry records make every necessary legal effect and are fully valid unless they are expressly declared inexact or invalid.
7.- Principle of sucessive tract:
"No entry except the first, will not be registered, or recorded without the right form where it emanates has been recorded previously" In simple words: Land Registry in Spain works as a chain, so no link can be engaged without the previous one. Sometimes, in order to register a right which has no inmediate right recorded, you will have to do through th registry procedure for resumption of the sucessive tract.
For instance: we are working for a client who wants to register a house he has inherited, the deceased person did not have the house reistered under his name in the Land Registry, we need to prove ownership through public and private means and aply for the registration of ownerhip by the deceased person BEFORE instating our client's ( the heir) record.
8.-Principle of specialty:
Tells about the system of the Land Registry, whose unit is the PLOT, which has anumber and on which all related rights are recorded. So if you own a house in Spain, you need to know its registry number. Your property must be registered in the Registry according to location, no every town has one, so if your house is in a little town , it is very possible the Registry will be in the nearest big one. Anyway, your lawyer will be able to check on your registered ownerhip status online.
9.-Principle of impenetrability:
Once the procedure for registration of a right has started, there is no gate for any incompatible rights to try to enter the Registry.
As you know Land Registry procedures in Spain are very controlled and strict in order to provid safety and consitency to the mortgage market and the real estate traffic.
The role of Notary and Registrars is generally unknown by commun law citizens as it is completely different from the role of them in your legal system. That is also why conveyancing lawyers play a very different part in Spain and in the UK when working for you at the buy or sale of your house in Spain.
Your conveyancing lawyer in Spain is a guide who will make your company while you are inmersed in a system, country and language that you do not know . The spanish convenyancer will procure that deposit and purchase contracts are being draft protecting your interests, and will defend your position before the other contract party in every sense. Notaries and Registrars are not in charge of protecting/advising you personally but on safeguarding legality of operations and protect your public interest rights like Consumers Rights.
The sale is completed with the private contract but you will not be able to oppose it to good faith buyers if it is not registered and of course, no bank will lend you money if the property is not also properly recorded.
This message was last edited by mariadecastro on 16/09/2015.
This message was last edited by mariadecastro on 16/09/2015.