Land registry based on the real folio principle.
Some land registration systems consider any immovable asset, regardless its nature or situation, a subject matter of registration. Others restrict the concept only to those specified by law, or even create legal fiction of immovable assets with regard to the registration in the land registry.
1. Is there any specific provision in your law that regulates what can create a new land registry file (a new folio)? Could you please state that provision? What is the basic unit in the land registry? What can open a folio? Only Immovable assets by nature, or also immovable assets by legal fiction (by disposition of law)?
According to article 1 of the Land Registry Code (LRC), the purpose of Portuguese LR is to publicize the legal status of immovable property, considering the security of real estate legal trade. The immovable properties can be urban or rural (article 204/2 of the CivilCode).
Almost all immovable assets by nature, once owned by private entities (meaning that they can be traded and are not affected exclusively for public purposes, i.e, that cannot be considered a public domain) can open a folio.
The public domain property, according to the Portuguese Constitution (article 84), includes the territorial waters and adjacent seabed, as well as rivers, lakes, ponds and streams of navigable water, with its beds; the mineral deposits, mineral-water sources, natural underground cavities; the roads; the national railways and other assets classified as such by law.
There is not a basic unit in the land registry. A land parcel for agricultural or forestry, a plot for construction, a house, a building (with condominium or not) weather for inhabitation, commerce, industry, parking, etc, can open a new file regardless of the area (respecting rules of urbanization and others).
If, over the land, there is a house, a garage or any other building on the piece of land, it shall be stated in the description of the immovable property. Its apartments or flats can give place to a new folio once the building is under the condominium regime. This new folio is linked to the folio of the parcel.
Previous to the registration, the parcel, the plot or the construction must be declared to the tax department. Thus, the opening of a folio only depends on the existence of an immovable property, rural or urban, regardless its economic destiny (it can be for business, commercial or industrial premises, and this information is available at the property description).
In addition to immovable assets by nature, it is possible to open a file to register temporary rights of time-sharing (Decree Law n.º 275/93 5th of August and article 81º of the Land Registry Code) and the concession on public property for the purpose of inscribing a mortgage (articles 2no u) and 84º of the Land Registry Code).
The main rule regarding the creation of a new registry file (new folio) is the one established in article 80º of the Land Registry Code: a new folio will be created always based on the inscription of a new right. The facts (rights or burdens) with real effects that can be inscribed in the land registry are the ones listed in article 2º of the Land Registry Code.
2. Could an immovable asset, being part of a bigger immovable asset already registered, be separated in the land registry by opening a new file (a new folio)?
How are these situations organized: is there any link or connection between different real folios?
Please provide more cases according to your system.
There is the possibility of creating a new folio by separating a parcel from another one previously created, or by joining two or more parcels already existing – article 85º of the Land Registry Code.
This can take place, for example, when splitting rural properties – articles 1376º to 1382º of the Portuguese Civil Code, or dividing in plots for urban construction – Decree Law nº 555/99 dated 16th of December.
In these cases, the new file or files opened are not automatically linked to the previous one. However, the new folio will refer that has been separated from the previous one (identifying the number) and the previous folio will refer that a part (identifying the number) has been separated – article 82 of the Land Registry Code.
Also, the new folio created by joining two or more folios will refer the number of all the previous ones; and in the previous files an annotation of unusable will be done. These previous folios can no longer be used – articles 82º and 87º nº 2 c) of the Land Registry Code.
There is also a possibility of creating a new folio by inscribing the condominium
– article 1414º of the Portuguese Civil Code, and the time sharing rights – Executive Law n.º 275/93 5th of August and article 81º of the Land Registry Code.
According to the Portuguese system it is possible to inscribe the condominium. Depending on that inscription – which states the relative value of each apartment and the specific rights of each owner – the registry files of each apartment are created – article 81º of the Land Registry Code. The same happens when the time-sharing is inscribed in the registry – the new files of each temporary right are created.
In these cases – condominium and time sharing rights – there is always a link or connection between the different folios.
The new folios created with the inscription of the condominium keep the same number (the number of the called “mother folio”) followed by a letter, in alphabetical order, for each apartment; the temporary folios created with the inscription of the time sharing will keep the same number of the folio, the letter of the apartment followed by the number of the period of use – articles 81º and 83º of the Land Registry Code.
3. What is the legal criterion that defines the object of land registration (Please select all possibilities, applicable to your system):
– Is there a connection between the object of the legal traffic and the land registry entity? If so, could you please describe this connection
We must distinguish between the land registry unit (the object where the rights or burdens are inscribed) and the object of the registry.
The legal criterion that defines the land registry unit of Portuguese Land Registry is the nature of the object. There are 3 different types of assets (article 82º nº 1 b) of the Land Registry Code):
– Rural land parcels;
– Urban – including plots for construction, houses for inhabitation or any other buildings (for commerce, industry, services, parking, etc);
– Mixed – when a part is rural land and a part is a building.
Additionally, by Portuguese Land Registry Code the object of the registry are the legal facts stated in the law (article 2 LRC). Although the object of the registry is subject to a numerus clausus rule, we can say that all the facts that generate or affect rights over rem are object of LR.
4. Identification of the LR entity: Is each land registry entity identified by a single identification number? Is it created, maintained and written off by the Land registry organization?
– If a Land Register identification number is applicable to your situation: could you please describe the way this LR ID number is structured. Could you please share a (specimen) identification number?
In the Portuguese Land Registry each immovable property is identified by an identification number, within its location.
The number of each folio is organized in each parish (a division of the municipality). For example, in the parish of Santo António, Municipality of Funchal, the first folio has number “one” followed by the date of the creation of the folio (if it was registered in a previous land book, the new number in the digital format will refer the old number in paper support).
The folios in the same parish and municipality are then numbered sequentially.
There is no unique nationwide number. The tax administration and the cadaster (where it exists) have another id number. This number, however, is mentioned at the description of the property at the LR.