Hidden charges and overriding interests

1. Are there any such hidden charges in your system? If so, please list them, and explain how a buyer can discover them. Explain if there is any simple way that the property can be freed from them.

a) In our system there are several charges that can or have to be transcribed in the Land register in order to have effects against third parties. For example:

  • Leasing and rents lasting more than 9 years
  • Limited rights such as usufruct, use, habitation
  • Right of habitation in the marital home, in case of separation, when the right is stated in a judicial decision
  • Easements and superficie
  • Public rights to use the land still existing such as Levels
  • In all the mentioned cases, a proper search in the L.R. should give all related information.

b) There can be other charges that are not mentioned in the land register. For example:

  • Adverse possession or Usucapio (in the LR one can find only the transcription of the decision declaring the usucapio, but before this moment a buyer cannot find out if someone is acting to gain the adverse possession)
  • Fiscal charges such as the debt of the previous owner related to transfer taxes (usually the notary requires the seller to give a declaration, issued by the competent revenue office, concerning possible fiscal debts)
  • Municipal or other public rights of pre-emption, due to the public utility of the property or its artistic value.
  • In all these cases there isn’t a public register where needed information can be found. Usually the Notary collects the needed declarations or permissions.

2. Do any of these, or any other similar matters, have priority over a mortgage, where the lender was acting in good faith and was unaware of them? Explain if there is any simple way that the property can be freed from them.

  • Adverse possession means an acquisition unencumbered by other real rights. Thus the property is acquired free from mortgages.
  • If there is a fiscal debt related to the property, the State has a privilege on the property, that is the right to be preferred to the other creditors, both mortgagee and unsecured, in case of execution.

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