Legislative reform to coordinate the Land Registry and the Real Estate Cadastre
Published on 22nd Apr 2016
Law 13/2015, of 24 June, amending the Mortgage Law, approved by Decree of 8 February 1946, and the Consolidated Text of the Law on the Real Estate Cadastre, approved by Royal Legislative Decree 1/2004, of 5 March (“Law 13/2015”), in force since 1 November 2015, is aimed at coordinating the two current institutions that provide information on the land: the Land Registry and the Real Estate Cadastre. In addition to improving communication between them, Law 13/2015 seeks to enhance legal certainty and improve transparency, thus simplifying real estate market procedures.
The Land Registry registers and records all acts and agreements concerning the tenure and other rights in rem of real estate in order to give official and public information that can provide security to real estate transactions by means of the principles of legitimacy and public trust. It uses a land registration system through which each real estate unit or property is registered. Such registration involves opening an official registration sheet (folio real) where all alterations and changes in any real estate unit or property are recorded.
The Cadastre is an administrative register, dependent on the Ministry of Finance, which deals with the description of the territory through the so-called cadastral maps. The cadastral maps show the boundaries of land parcels on the territory and detail the relevant data associated to them in order to provide tax information for real estate taxation.
Despite both institutions dealing with real estate reality, the lack of coordination between them has often resulted in discrepancies in the information and the descriptions they provide. Thus, the Land Registry is often unable to exactly determine the part of the land to which it refers. Likewise, the Cadastre does not always reflect the impact that legal transactions may have on any land parcel it maps, for example the partition, division and aggregation of properties. The purpose of Law 13/2015 is to get around this problem by establishing a data exchange and coordination system so that the Land Registry may have access to the cadastral maps and vice versa.
In this regard, the main innovation is that this Reform makes it mandatory to include, in the official registration sheet, the property’s georeferenced information and graphic representation as well as the georeferenced coordinates of its vertices, should these be accredited. This obligation applies to any registration of properties (inmatriculación) or any transaction entailing the parcelling and re-parcelling, consolidation, partition, division, aggregation or grouping, obligatory expropriation or re-designation of a property that may imply a reorganisation of the land.
The graphic representation can also be voluntarily added when recording a registrable act or transaction that must be registered with the Land Registry.
The graphic representation will be added to the official registration sheet of the property, provided that the Registrar has no doubts about the legal and physical correspondence of such representation with the property in question. It is understood that there is a correspondence between the graphic representation and the literary description of the property when both enclosures basically refer to the same portion of the territory and, should there be a difference in the area of the property, this does not exceed 10 % of its registered area. However, such differences shall not prevent the property from being properly identified and clearly differentiated from the adjoining properties. Once the graphic representation has been recorded, the area of the property will be the one depicted in such representation and the Registrar will amend accordingly the one stated in the literary description of the property.
In order for the graphic representation to be incorporated to the official registration sheet of the property, the title document and the legal and descriptive information of the property registered in the Cadastre must be provided. However, in those cases when the graphic representation must be recorded, Law 13/2015 allows for the provision of an alternative georeferred graphic representation (which is the one that differs from the graphic representation specified in the graphic and descriptive information registered in the Cadastre), which the Registrar shall forward to the Cadastre so that the latter proceeds to make the relevant changes.
Any information provided by the Registry will have to include the cadastral reference of the property and whether such property has been graphically recorded or not in the Cadastre and, if so, the date on which it was recorded.
Therefore, the main effect of Law 13/2015 is the presumption that the registered property effectively has the geographic location and demarcation detailed in the graphic description of the information provided by the Cadastre that has been incorporated to the official registration sheet. This is particularly relevant because article 38 of the Mortgage Law establishes that, for all legal purposes, it will be understood that the rights in rem registered with the Land Registry effectively exist and are owned by their holder in the manner described in the corresponding entry. This presumption shall also exist when an alternative graphic representation is added to the official registration sheet, provided that this representation has been previously validated by a public authority and that six months have elapsed from the moment the Cadastre informed of its registration without notifying the Registry of any impediments to having it technically validated.