Preventive control of legality

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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 accordance with Spanish Mortgage Act, Land Registrars certainly carry out a legal scrutiny of the documents, because documents are subject to a previous examination so as to make registration or not. Article 18 SMA establishes that Land Registrars shall assess, under their responsibility, the legality of the extrinsic characteristics of all kinds of documents by virtue of which the registration is required. Registrars shall also assess the capacity of parties and the validity of acts by virtue of which properties are transferred and granted in the public documents and in the Registry registrations.

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?

So, in order to exercise a rigorous control of legality, Spanish Land Registrars will examine strictly documents once presented and the registration books or land books content. Having studied both, the registration will be accepted or rejected.

Nevertheless, Spanish 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.

3. Otherwise, the correct answer with respect to your LR assessment would be:

Anyway, Spanish LR 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 legal prerequisites or contain legal inaccuracies or defects, there will be reasons of abeyance or rejection and registration won’t possible whereas aren’t rectify, we insist. Spanish Land Registry is closed for not entirely valid documents.

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.

In case of rejection or abeyance of a document, Spanish LR system does provide to the parties up to three legal possibilities to request its review:

  • A review made by Land Registrars in regulatory substitution, who may don’t admit first Registrar’s refusal and revoke it.
  • An appeal at the competent body of the Ministry of Justice (DGRN, Dirección General de los Registros y el Notariado).
  • An appeal at first instance Court Judge.

Deadlines are different in the three cases. Parties whose registration has been refused must keep a deadline of 15 working days to get a review of Substitute Registrar; a month to appeal at DGRN; 2 months to appeal at first instance Court Judge.

These deadlines start from the day following to notification for the parties about their application for registration has been rejected.

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?

Land Registrars at any case must deal with their assessment within deadline, fifteen days starting from the presentation entry date.

Summary

INITIAL STAGES OF LR PROCEEDINGS IN SPANISH SYSTEM
Phase 1st Presentation of the document 2nd Examination and Registration of the document
Purpose To establish LR priority of the document Control of legality and registration in case of positive examination
Deadline to be carried out The same day of the arrival of the document, even immediately Within 15 working days
Duration or maturity Temporary entry (in principle 60 working days) Indefinite in case of registrations.
4 years (generally) in case of caveats
Pertaining LR book LR Journal (“Diario”) Land Books or Registration Books (“Libros de inscripciones”)