1. What is the probative value of the LR information sheet? Does the national law provide it with special legal nature, like a public document or authentic act? Are there different types of LR information with different degree of value?
To answer this question we will first analyze the different ways in which we can obtain information from the land registry and make a brief summary of its main characteristics. Then we will see that no matter the way the information is issued the effects of the entries of the Land registry are the same
In which ways can I request information from the Spanish Land Registry?
The Property Registry can provide you with this information in four different ways:
- In the form of a simple informative note
- In the form of an ownership and liabilities certificate, which is an official public document?
- In addition, you can also ask the Registry to issue an explanatory report describing the registration position of the property
- And of course you can also ask for oral advice in any topic concerning registering property.
Depending on the way the information has been issued, it will be needed different request to obtain and it will have different strength to bind the registrar.
a) Simple informative note
An uncertified note, will give, as we have already mentioned, the description of the home, its situation, its area, any property appertaining to it, its share of building ownership, any special administrative programs it belongs to(such as the low-income housing programme), mortgages, including the mortgage liability for principal, interests and costs, the mortgage’s term, any injunctions, easements or possible lawsuits involving the property, any tax-related encumbrances, and generally any circumstances involving the home’s ownership.
The note may also include any other information you expressly ask for and it can be issued by any Registrar irrespective of the municipality in which the property is situated.
This note is for personal information only and cannot be used in legal proceedings as proof of the non-existence of burdens and liens. This is main difference between the simple informative note an the certificate of ownership
b) Certificate of ownership and burdens
The certificate of ownership and burdens is a public document issued by the Land Registrar in which it can be certified any specific information contained in the Land Registry related to the ownership or burdens of any immovable in the municipality. It can only be issued fiscally or telematicaly by the Land Registrar of its municipality so that is always signed personally by him. However, the certification of property and burdens as it can also be provided by telematic means, and in this case it will by electronically signed by the registrar himself.
Acording to the data provided, the certification may may contain more information than an uncertified note, because if you prove your interests, for example as a potential buyer or as a potential creditor, you can ask for it to include a word- for-word reproduction of all entries related to the inmovable, or information on the non-current history of the property, or just ask the Registry to certified only the extremes you are interested on.
Since this is a public document signed by a registrar, a certificate can be used in court and third-party proceedings to prove any information certified by the registrar. This means that the Registrar is responsible of any information certified by him so that any damages caused by any irregular or inexact certification will be compensated by the Registrar. Therefore, the Association of Land Registrars has an especial professional Insurance to ensure the compensations.
c) Report on the property’s registered situation
You can also ask the registrar for a written report on the property’s registered situation. The land registrar according to your application may provide you a complete report on the situation of the immovable. These reports are used to ask for advice to the Registrar according to specific problems of a particular deed or property.
d) Oral advice
All Land Registrars are obliged to report orally on issues concerning the registered situation of property in their own territory. This advice is always free of charge, and the registrar must spend at least two hours a day on this kind of work.
At all events, bear in mind that legislation on the protection of personal information may limit what registration information can be given to you.
2. What is the degree of reliability of the information? Which are the effects given by the legal provisions in each country to this information, should it be necessary to carry out further investigations?
The effects of the information published in the registry:
The information published in the registry according property and burdens over any certain immovable is assumed to be true. This statements implies that it can only be contradicted by a judicial decision taken by court in a process in which the owner of the rights has been heard, no matter when the entry has been done, the value of the right or any other circumstances
The owner who has registrar his right has full protection according against any attack to it. This protection means that the owner according to the Land Registry
- Will be considered the the true owner of the property, until and unless court rules otherwise.
- Be protected from the seller’s creditors. Be protected from hidden burdens that might affect the preoperty.
- Get judicial protection for his right in case others challenge it or disturb his possession.
- Nobody can acquire any effective rights whatsoever over the property without his consent. Nobody can registrar its ownership of the same property without the consent of the registrar owner or a judicial pronouncement (settlement¿?) obtained in a judgment in which the registrar owner has been heard.
- The owner can get a mortgage loan to finance his purchase with because mortgages can only secure loans if both, the mortgage and the property are registered. In Spain the usual way of financing any purchase is with a loan secured by a mortgage because the interests paid are lower than in loans secured by any other collateral.
- In addition, once the property is registered, the cadastre is notified, and for any tax effects the new owner will be the land- registry owner. The registrar will also provides a tridimensional-data information. Identifying the property and validating it so that a picture of the fiscal immovable is connected with the legal data contained in the Land Registry.
According to Spanish law the third party in good faith which purchase any right from the one who appears as the owner in the Land registry will be kept in his acquisition, once he has registered it, if then it comes that the owner could not have passed the property because of any cause which has not been reflected in the registry. That means that certified by the registrar certain fact, it is not needed any other kind of investigation to trust the information given because the one who makes any transaction in faith of what the Land registry publishes is always protected. Furthermore, what published in the registry is presumed to be true and its fakeness can only be proved in a judgment in which the ones who can have any rights affected according to the Land registry have been part. And even in the event that that the fake of the registry has been proved the ones that have trust on it, will not be affected, because the land registry association is responsible of all information given and will compensate the real owners.
We have to remind that this protection will work for any fisical or juridical person who has any right over any real state set in Spain because according to international law, although the buyer or seller, the creditor or the debtor is a foreign person, the law applicable when it comes to business over real state in Spain is always the Spanish law.
3. Are there any hidden liens?
a) Legal prohibitions, taxes and priviledge loans:( exhaustly developed)
Despite the fact that the information published by the Land Registry is presumed to be truth and no more investigations have to be carried on to ensure the ownership or burdens over any property, there are a few liens that, although they have not been reflected in the Land Registry, they might affect the owner. The hidden liens normally represent a a small percentage of the value of the property or right so we can mostly say that tere are not hidden liens of importance
• Legal Prohibitions. It is forbidden to transmit or use as collateral some kind of properties, for example, some historical right that prevent the transactions of family goods without previous notification to preferent partners. Another typical example were buildings constructed under special programs for low income inhabitants but nowadays, the prohibition has always an entry in the Land Registry
• Superprivilege of workers, for the salaries of the last 30 days worked.
• Privilege in favor of the State on the property assets for the amount of the most recent expired and unpaid annuity on them.
• Privilege of insurers on the assets covered by two years of insurance premiums.
• Privilege of the credits of the proprietors association for unpaid community payments corresponding to the present year and the year before.
• The right of the lessees to stay in the property for the minimum terms legally prevent (five years for family rentals, five years for rural properties)
b) Urbanisms legislation
The irregularly constructed buildings might rarely be registered, however, in the case they have accede to the land Registry, we have to analize the effects of an administrative settlement ordering to destroy it or condemning to any kind of penalty. In these cases, if the property has been sold and the beginning of the administrative process of illegalization of the building has not been reflected in the Land Registry the owner will also be affected by the court decision. Therefore, since recently, it is mandatory that any process established to intend the demolition of a building to place an entry in the registry so that any future owner will be informed. If finally the building is not declared illegal, the State is also obliged to compensate any damages that the publicity of the process could have caused. It is also need to be said that Spanish Law requires those persons who may be liable to have insurance coverage which guarantees that you may recover indemnity without any problem, should this be the case
4. What effect does the issuing of the excerpt from the Land Register has over the land registry system?
In general there is no effect for the registry and the transactions over the property can continue normally. The Registrar only keeps a file containing all issues of publicity indexed by owner or property so that the owner can ask the registrar who as asked for information about any property he has, or all the properties he owns.
However, when the applicant is a notary he can ask for a specific kind of simple informative note, when a transaction may take place over a certain property. In this case, the registrar will inform during ten days over all entries related to that certain property, but this doesn´t mean to block the registry to any entry presented during this period.
8. Is the excerpt from the Land Book necessary and sufficient for the assignment of the property right of an immovable (regarding the information provided by the Land Registry)?
Yes, as we have said, what published in the registry is presumed to be true and its fakeness can only be proved in a judgment in which the ones who can have any rights affected according to the Land registry have been part That means that certified by the registrar certain fact, it is not needed any other kind of investigation to trust the information given because the one who makes any transaction in faith of what the Land registry publishes is always protected.
Furthermore, in the event that that the fake of the registratry has been proved the ones that have trust on it, will not be affected, because the land registry association is responsible of all information given and will compensate the real owners.