1. How many stages are there in the conveyancing process?
It is possible to distinguish four phases in the conveyancing process:
- Obtaining information and paying taxes (application for certificates of registration and tax documents of the property, other documents for verification of identity, capacity and legitimacy of the parties and payment of taxes)
- Deed or authenticated document performing
- Communication of changes in ownership to the tax authorities
However, besides this four phases procedure, that can be called «classic procedure», since 2007, there is a special one stop shop procedure that can be performed in the registry offices, called «Casa Pronta» (On the Spot House). This special procedure is performed by a Land Registrar and allows to reduce this four phases in to just one.
In this special procedure, the taxes are paid at the Register Office, and investigation for identification of the property, the capacity and legitimacy of stakeholders is also performed at this office through the public databases, with no need for certificates. The land registry office performs the deed and proceed immediately to the registration and required communications after the transmission.
2. How many other agencies/departments/registers etc. must be dealt with or checked prior to signing a legal transfer or mortgage?
In addition to the land registry office, intervenes in the «classic» conveyancing process, the notary and the tax administration. The support of a lawyer or solicitor is not mandatory, but it can be useful to obtain information and make the communications after the registry.
Differentially, at the one stop shop procedure «Casa Pronta» (On the Spot House), the interested parties only have to deal with the land registrar.
3. Who is responsible for dealing with other departments/agencies?
In general, are the interested parties that have to deal with other departments, but them can request and pay the services of a lawyer, solicitor or notary to do so on their behalf.
At the one stop shop procedure «Casa Pronta» (On the Spot House), the interested parties do not need to worry with the other departments as the registration office deals with the other stakeholders in the conveyancing process.
4. At what stage of the overall conveyancing process is your organisation involved
In what we can call the «classic procedure», the land registry office deals is involved in giving the information about the property the conveyancer needs, before the dead, and afterwards is responsible for the registration.
At the one stop shop procedure Casa Pronta (On the Spot House), the land register office is involved in all the actions needed to conveyance a property.
5. Is any or all of the conveyancing process dealt with electronically?
Only phases 1 and 2 (Obtaining information and pay taxes, and Registration) can be performed electronically.
6. Is any or all of the registration process dealt with electronically?
All of the registration process is dealt with electronically.
7. When a deed/document or land registration form is lodged for registration, what is the general procedure involved in registering the effect of the deed?
Once a deed/document or land registration form is lodged for registration, an entry in the Diary Book is made.
Afterwards, the registrar carries out the legal assessment of the documents or applications submitted.
Finally the entry is performed in the sheet of the property
8. How many stages are there in the registration of title process? Please give examples for the following e.g. registration of a (1) transfer of all property, (2) mortgage (3) change of ownership on death where the estate has been administered if applicable (4) registration of right of way (5) transfer of part of property.
We can identify three stages in the Portuguese registration process:
- Once the deed/document or land registration form is lodged for registration, an entry in the Diary Book is made. This presentation number and data marks the priority of the right.
- Then, the registrar carries out the 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.
- The entry is performed in the sheet of the property. This procedure is the same for all the rights and burdens registered.
9. What kind of entries are in your system? Describe their main features.
The registration sheet of each property is divided in two main parts:
In this part lies the «description» of the property which is the physical, economic and fiscal identification of the property.
Any modifications to physical, economic or fiscal elements of the estate shall be registered by an endorsement.
Some administrative information, like the authorization of use for urban properties (housing, commerce, etc.) is registered by annotation.
If is a building horizontally divided (condominium) the units are identified in this part, although this division also gives place to an entry in the 2 – ENTRIES – ENDORSEMENTS – ANNOTATIONS.
In this part are all the facts registered that are still in force.
It includes the entry from which comes the ownership, entries relating to other real rights (usufruct, surface rights, etc.) and all charges (mortgages, liens, easements, etc.), ordered by its presentation date.
Also, all the modifications of each entry are registered through an endorsement that identifies the modified entry.
Each entry has a number, date and time of its presentation in the diary book and indicates the fact registered (acquisition, mortgage, condominium, registration of right of way, etc.). Each entry must identify its beneficiary (owner, mortgagee, usufructuary) and the person from which he/she received the right or guaranty (seller, debtor, the bare owner, etc), both identified by name, address, tax number, civil status, name of the spouse and the matrimonial regime, for natural persons, or firm and head office location, for legal persons.
The remaining information on each entry may be different, depending on the fact registered.
10. What is the average time taken to register a (1) transfer of all property (2) transfer part property (3) mortgage/charge?
By law all the entries must be completed within 10 continuous days, but in general the entries are made in average in 3-5 working days. As the registries are made by its presentation number and date, there are no differences between types of entries. If the parties request urgency the registry is made within 1 day. The urgency implies a special fee.
11. At what level in the organisation is the final decision to register a title made?
The decision is, by rule, taken by a registrar. Some entries which are simpler can be performed by registry officials (special registry workers).
The interested parties can appeal the registrar’s decision directly to the court or to the board of the IRN.
The appeal is presented at the registry office and the registrar can reform its decision or not, prior to send it to the court or the board. If the decision was performed by an official prior the registrar must check prior to send the appeal to the court or the board.
12. To what extent are registration decisions in your country taken by a person with a professional qualification? What is that professional qualification?
In Portugal the registration decisions are taken by a person with a professional qualification.
The major part of the registries is decided by a registrar. The registrars are very qualified professionals. They must have a degree or master in law and are chosen through a hard selection procedure, which includes a probationary period and three stages of public examinations.
In few cases the decisions are made by an registry official (special career of registry workers), this workers do not have to have a degree but a large number of them has it, and they also are subject to public examinations. Nevertheless, they work by the registrar direction and there is always the possibility of requesting the registrar review.
13. If registration decisions are not taken by a person with a professional qualification, how are they taken?
(See the previous answer)
14. Is the decision to register a legal, judicial or administrative function (or mixed)?
In Portugal, the decision of the registrar is a mixed function between the judicial and the administrative functions. The registrar is a civil servant, considered to be a public official, part of the government organization, but in his registry decision he is fully independent. For this reason, even when one appeals to the court after having the appeal to the board of directors of IRN denied, the decision in appeal still is the one from the registrar and not the decision of the board.