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?
In the PLR system the Land Registrars carry out a legal assessment of the documents or applications submitted. In accordance with Article 67 of the CLR the feasibility of the application must be assessed in light of applicable legal provisions, the documents submitted and the previous registries, verifying in particular the identity of the building, the legitimacy of parts, the formal validity of titles and validity of statements contained therein.
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?
In accordance with Article 48 of the CLR only the facts contained in documents which make proof thereof according to the law can be inscribed in the land registry.
3. Otherwise, the correct answer with respect to your LR assessment would be:
In any case, the PLR system 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?
Then, if documents don’t comply with the legal prerequisites or contain legal inaccuracies or defects, the registry shall be refused or made provisional for a deadline of 6 months, depending on the severity of the defect found (cf. note 2 above for the cases of refusal of the registry).
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.
When defects are likely to be corrected, according to the Article 73 of the CLR, the registrar shall, prior to his/her decision, contact the interested parties to promote their correction. If they fail to do so within five days, the decision is notified and the interested parties have a period of 30 days to appeal to the president of the Institute of Registries and Notary (administrative appeal) or directly to a judicial court (Article 141 of the CLR).
The administrative appeal or the judicial review is brought by application where its foundations are exposed. This application must be presented at the land registry office to which the official who has issued the contested decision belongs (Article 142). The Registrar examines the appeal and can review the decision. If he/she decides not to review the decision he/she shall send the application to the president of Institute of Registries and Notary or to the judicial court.
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?
The LR offices do their assessment within a 10 day deadline which is mandatory, but the law does not state any sanction if the deadline is not respected. However, usually, nowadays, the assessment is done in a period shorter than 10 days.
