Preventive control of legality
1. Do Land Registrars or Land Registries carry out a legal scrutiny or assessment of the documents or applications submitted or (conversely) are registered without a previous examination?
Entries in the Land Register may only be made following a decree of the land register judge.
No point must be neglected in the judge’s examination, including the legality of the document, the capacity of the parties, issues that affect the validity of the deal, the impact of the right in question on property, and any defects regarding the description of the property.
2. What does the object of the LR assessment consist of? Are the documents presented and the content of the registration books or land books (or any other books or lists of your LR organisation) the only elements that land registrars bear in mind for carrying out their assessment and then to accept registration or not? What is the situation in your LR system?
The land register judge is supported by a registrar, who is deeply involved in all the phases of the procedure.
The land registrar will first of all compare the application with the status of property in land books at the moment of presentation. Having studied both, he will decide whether accept or reject, without listening to interested parties and without taking into consideration other elements such as for instance other documents. Land registrars are not entitled to rely on different means for taking a decision, not beyond the registrations related to properties in LR books and the documents presented.
In case of rejection, it is necessary to motivate it and it is also possible a partial rejection.
3. Otherwise, the correct answer with respect to your LR assessment would be:
LR system of Libro Fondiario does not accept documents that don’t fulfil all legal requirements.
4. A specific case: let’s consider an application for registration based on a document or deed with lack of legal prerequisites. What would your LR response be?
An application for registration based on a document with lack of legal prerequisites will be rejected.
5. In case of rejection or abeyance of a document, does your system provide legal possibilities to request a review to the parties or stakeholders? Do they have legal possibilities of appealing the Land registers’ decision? Please, describe the procedures if applicable.
Against LR decree of rejection, interested parties can appeal to the Tribunal within 60 days from notification of appealed decree. The document of appeal, named “reclamo Tavolare”, is entered in the books. The Tribunal will decide with a decree, on the basis of acts already considered by LR judge.
6. Must registrars or LR offices do their assessment within deadlines? If applicable, is it mandatory for registrars in charge or is it rather a guideline?
Against Tribunal decision it is admitted, under certain circumstances, appeal to the Court of Appeal within 30 days. No appeal is admitted against this decision.
