Incoherent land information systems in Spain
In Spain, it is often the case that entries recorded in the cadastre and the land register (register of deeds) are not identical and the two registries can often contradict the actual plots on the ground.
The reason for this contradiction is that the sources of the information differ: in the land register, only information contained in official documents is recorded (e.g. notarially certified contracts or judicial decisions); however, the information in the cadastre is submitted and recorded by municipality officials or the tax office.
The function of the information also varies: in the land register, a private individual enters the information which they wish to defend with the guarantee of the official register; in the cadastre, the administration prepares the information necessary for the calculation of tax and the enforcement of its own demands.
This potential contradiction is not the only difference between the Spanish and other foreign land registers: another and very important difference in the Spanish land register is the mandatory recording of a building’s description, including details of the construction areas, with a notarial certificate, while in other foreign land registers (like in Germany, for example), only the explicit size of the plot (without buildings) is recorded. Significantly, this means that if alterations are made to the building, its alterered condition must also be updated in the land register with a retrospective notarial “New Works Declaration“. However, this is often not done, either through ignorance, a reluctance to pay the notary, tax and registry costs, or more usually because (new) planning permission has not been granted.
Nearly all contracts of sale for property are dependent on the funding of the buyer. This funding is usually granted by a bank, but always with the guarantee that it is recorded in the land register as a mortgage on the purchased property. It is therefore very important that the information recorded in the land register does not conflict with reality because any information missing from the land register can mean that the bank will not cover the purchase price agreed for the property (irrespective of what is actually stated in the land register).
Therefore, if you are intending to put a property on the market as a seller, it is advisable to find all entries in the land register and cadastre and compare them with the actual plots. Providing the correct measurements are recorded in the cadastre, it is relatively simple to amend the land register. With existing (or older) valid planning permission and final approval documented by the municipality, things can move forward quickly. It becomes difficult however when a building or part of a building exists which has not been recorded and for which there is no official approval. Then only the lengthy and expensive route of gaining planning permission through an architect remains.
The situation is different when not only the factual information, but also the legal information recorded is incorrect: this often occurs in the case of inheritances which have not been formalised or when the buyer has not had a notary certify the signed contract of sale. Because only information contained in official documentation can be recorded in the land register, private contracts of sale cannot be registered.
Carlos Prieto Cid
Tarracoiuris Abogados
Member of Eurojuris España
Tags: carlos prieto, Eurojuris España, international lawyers spain, tarracoiuris lawyers, tarracoiuris rechtsanwälte
