Dangers of aligning information about a property in the Cadastral and Land Registers
In a recent case, my client learned from a friend that his small garden shed was for sale on a real estate agency’s page on the internet. His neighbour had made the graphic coordination of the plot in the cadastral register and the property register and the cottage was now part of his registered property.
The surprise and indignation were obviously enormous. – I’m afraid this state of mind still lasts.
1.- NOTIFICATIONS FROM THE LAND REGISTRY OFFICE
The fact is that lately many property owners receive or have received a notification from the land registry office informing them of the initiation of the “modification of description and georeferencing file under article 199 of the Mortgage Law” which contains a long list of coordinates. This notification is often difficult to understand (I witnessed a comical scene at the land registry office in Felanitx, between an elderly couple and an official who tried to explain the notification, with little success).
Therefore, be careful when you receive a notification with this content. It is definitely not advisable to ignore it, as the consequences for your property might be severe and the partly loss of is possible.
2.- DEFICIENT REGISTRY SYSTEM
The Spanish registry system has serious deficiencies when it comes to identifying properties.
The land registry presumes that the real rights registered therein exist and belong to their owner in the manner determined by the entry (art. 38 of the Mortgage Law). However, despite the literal wording of the law, this presumption only applies to:
a. The existence of the registered right (property, encumbrances and charges such as usufruct, mortgages, etc.)
b. The person who appears as the holder of this registry entry (ownership)
As regards the existence of the right “in the form determined by the registration”, the majority of case law contradicts this presumption. This means in principle (with the exception explained below) that there is no presumption of correctness either for the square meters described in the entry or for the boundaries of the property. As can easily be seen, this leads to great legal uncertainty.
3.- LAND REGISTRY-CADASTRE COORDINATION, LAW 13/2015 ON THE REFORM OF MORTGAGE LAW
In order to remedy this structural deficiency, Law 13/2015 reformed the mortgage law, establishing coordination mechanisms between the land registry and the cadastral register. It should be noted that historically the land registry and the cadastral register have not been coordinated, so that the description and ownership of both files did not necessarily coincide (to the surprise and astonishment of the many).
Since 2015, a system of compulsory coordination has been established (when an operation of parceling, land consolidation, segregation, division, grouping or aggregation, compulsory expropriation or demarcation is carried out), but now the door has also been opened to voluntary coordination (via art. 199 of the Mortgage Law).
This is undoubtedly a very relevant and significant reform, since, once the graphic coordination between land registry and cadastral registry has taken place, it is presumed that the described property has the location and geographical delimitation expressed in the cadastral graphic description.
This reform introduces more legal certainty. Until now, the delimitation of the boundaries of the property was based on the system of walls or boundary markers, which can always be moved, even if this is punishable by law.
However, it should be noted, as mentioned, that this coordination is not automatic, as it is only compulsory in certain cases (see above), and it is therefore to be expected that it will take decades before there is total coordination between the land registry and the cadastral register.
Even so, it is possible (and advisable) to proceed to this voluntary coordination (art. 9, b second paragraph of the Mortgage Law) by means of the modification of description and georeferencing under article 199 of the Mortgage Law. And it is for this reason, and because of the obligatory coordination, that property owners are receiving these notifications from the land registry.
And it is here where you have to pay attention to these notifications, as they can lead to the new delimitation of the neighboring property affecting your own one, even appropriating part of it.
After receiving this kind of notification, the law grants a period of 20 days to make allegations, which must be resolved by the property registrar.
However, if this period of 20 days is allowed to elapse, then the coordination is completed and the presumption of accuracy of the location and geographical delimitation expressed in the cadastral graphic representation applies, even if this means the appropriation of part of the neighbour’s land.
4. REBUTTABLE PRESUMPTION OF CORRECTNESS AND THIRD-PARTY PURCHASERS.
In spite of the above, the general legal view is that this presumption of correctness is not irrebuttable, i.e. the party claiming that the new description of the land and its boundaries is incorrect can still prove otherwise.
However, this may imply the filing of a lawsuit and, ultimately, result in a complex, long and costly trial. But not only that: if the graphically coordinated property is sold in good faith to a third party, it can be assumed that this third party is protected by the appearance of the land register under Article 34 of the Mortgage Act.
Therefore, it could be the case of an owner of a property who proceeds to an amendment to the description and georeferentiation under Article 199 of the Mortgage Act, resulting in an appropriation of part of the neighbouring property. The neighbour concerned is informed of this by a notification from the land registry, but pays no attention to this circumstance, thus does not file an objection, the changes are thus entered in the land register. If this newly surveyed property is now sold to a third party who relies on the correctness of the entry in the land register, he would be protected against a later attempt by the neighbour to object to the new entry. As a consequence, parts of the negligent neighbour’s property were thus expropriated.
This is by no means a contrived case that is inconceivable in practice. As mentioned at the beginning of this post, something similar happened to my client when he learned from a neighbour that his house was for sale on a real estate portal on the internet and he had no choice but to file a declaratory action to claim ownership of the house and the part of the land he had lost due to the remeasurement of the neighbour’s land. This specific case had a happy ending with a positive judgment for my client, the court costs were to be borne by the other side.
However, as described above and apart from the economic, time and personal costs that a lawsuit always entails, the outcome may well be different, namely if the newly surveyed property has already been sold to a third party. In this case, it may be difficult to dispute the original ownership of the property.
5.- MODIFICATION OF REGISTRATIONS IN THE CASE OF RESURVEYS WITH A DIFFERENCE OF UP TO 10% OF THE AREA ENTERED IN THE REGISTER.
The matter becomes even more complicated as the law provides for the possibility of waiving the rectification procedure as described above (and without the corresponding notification of the adjoining neighbours so that they have the opportunity to object, if:
a. the difference in size to be inscribed is not more than five percent of the size so far stated in the land register
b. the difference in size to be inscribed in the land register does not exceed ten per cent of the area so far registered and a certificate from the cadastral register on the corresponding graphic and descriptive representation of the property is submitted.
In these cases, it is not necessary to notify the adjoining parties in advance so that they can file an objection. The land registry officer then has the option of approving and registering the changes after carrying out the checks required by law, which is then merely communicated to the neighbour concerned in a reasoned decision for his information.
6.- OUR ADVICE
Based on the above, we would recommend the following:
a. Give due importance to any land registry communication you may receive. The Land Registry website has a very useful tool to perform an initial check and see whether or not our property is affected by the remeasurement of the neighbouring property in terms of a viewer https://geoportal.registradores.org/ with which you can see which properties are already coordinated (in green) and which are still being coordinated (in red). The neighbouring property that is in the process of being coordinated and which is the basis of the notification received should be shown in red. In the notification itself, a link is provided to access the graphical description.
b. If you believe that the graphic representation then constitutes an appropriation of part of your property by the neighbour, or have any other doubt, it is highly advisable to consult a lawyer and a topographer to decide whether an objection is necessary.
c. Special care should be taken with owners who do not have their main residence in Spain. On the one hand, those owners should inform the land registry of an address at which notifications can be reliably delivered and, on the other hand, grant a power of attorney to a trustworthy lawyer, who will take action if necessary and submit the corresponding objection within the 20-day period even if the owner is absent.
d. Finally, we advise landowners to initiate the coordination between the property register and the cadastral register themselves. Even though this involves costs, they will have more legal certainty regarding their land boundaries, which can avoid recurrent and acrimonious disputes with neighbours.