Possible Pitfalls!

The Land Registry gives trustworthy information about ownership, burdens and liens on the property. The main advantage is the protection it provides to the buyer who acquires from the recorded seller and records their own acquisition. This buyer will be protected against any claim.
However, no protection exists for the owner who records the land for the first time ( as there is no recorded seller, no protection can be given) and neither is there protection for the second buyer for the period of two years from the date it was recorded for the first time, nor for the inheritor or legatee, nor for the buyer from one of these for the period of two years from the date of death of the deceased.

But, although the Land Registry is trustworthy, you must be aware that in some cases it is not totally reliable, for example:

Same land recorded twice ” Doble Inmatriculación”

The Land Registry is an old institution (1861 to the present). The inscription of property is not mandatory, but the huge advantages the Land Registry provided made that, until not so long ago, the inscription of a plot for the first time was enabled easily. Although, the first recorded owner is not protected, (nor is the second who buys within the two-year limit as stated above).

As each single plot is organised within the Land Registry on a single sheet in each book, the chain of owners can easily be proven, but it is not impossible that the same plot may be recorded on another sheet in another book.

This often happened because recording a plot for the first time was easy but inscribing a new owner for an existing plot was not. For example, with complicated inheritances where the inheritors were possibly already dead or overseas, the heirs often tried to record the land in the name of the new owner as a new entry instead of completing the chain of owners on the corresponding sheet of the existing recorded plot.

The outcome of such a situation is that the same plot would be inscribed on two sheets with two different owners, and that could lead to a conflict in which neither owner would be protected by the Land Registry, and therefore owners would be facing court action.

Broken chains of owners

Sometimes it may be the case that the seller presents themselves as the real owner of a plot that in fact is recorded in another name. That is perfectly possible because, as is stated above,  registration was not mandatory and the successive transmissions of property were done in a private document, of purchase or sharing out of a estate between heirs, all of which cases would need a public deed.

This case usually obliges the current owner to go to court in a special proceeding to get the declaration that they are the real owner getting his or her ownership registered even when not having acquired ownership from the previous recorded owner. The proceeding used to be quite simple consisting in calling all the previous owners and any other person who could be damaged by the claim.
If the previous inscription had been recorded for more than thirty years, a personal notification to all these interested parties was not even necessary, only a public announcement. The fact was that the proceeding was quite simple and unless anyone objected, the claimant ( of course with a deed and all other requirements) would have their ownership recorded. Bearing this in mind, it was no reason to withdraw from a prospective purchase once all other issues were resolved.

As from 2015 these proceedings are no longer held in court. The notary is now the competent authority but the proceeding has become more complex as the law requires that all the heirs of deceased previous  owners are notified by the notarwhich implies that the current owner must know who they are and can prove that they are the heirs). Then ALL OF THEM should appear at the notary personally.

Of course that suggests that the proceeding is completely unworkable. As a result, the Land Registry main authority interprets that in the case that the previous inscription had been recorded for more than thirty years, a public announcement is enough, and then there is no need for personal attendance but no objections must be made by the interested parties, as before.
Despite that, the opinion of some notaries is that for previous inscriptions of thirty years or more, a public announcement may be made, but the personal attendance of all the interested parties is still required, an opinion that from our humble point of view is completely ineffective. Because of that, it is worth checking all these aspects before the purchase ( And even possibly changing your notary) !

Description of the land, the house or the flat

Regarding ownership or other rights over property the Land Registry is the guarantee of the purchaser, however it does not provide such a guarantee for the description of the land, including surface area. Nowadays, there is a special commitment to match Land Registry records, which describe property only by its boundaries, to Cadastral records, through aerial photos and some cartography.
For this reason, it is not possible to include new plots in the Land Registry if they are not described as in the Catastro even with its geographical coordinates.

Regarding Land

Most plots that are already in the Land Registry are only described by location, surface area and boundaries. The boundaries are identified with the name of the owner. As the owners change it is clearly not a good system and you can be happy if you have a non changeable boundary such as a road, river or railway. Even this is not completely reliable if it is not linked with a Cadastral plot. In this case the first task is to link the Land Registry plot with a Cadastral plot and if a Cadastral plot does not coincide, your recorded ownership must be drawn in the Cadastral Cartography.
It is not a complicated proceeding apart from the mandatory notification of the current Cadastral holder of the affected land. If this Cadastral holder of the Land refuses to change the cartography you, despite being the owner, are facing court.

Regarding the description of the house

Sometimes, the house built on the seller’s plot is not described in the deeds or in the Land Registry. That is not a failing to stop you going forward with the purchase. It is a rule that the building on a plot belongs to the land owner. There is a quite simple proceeding to reflect the house in the Land Registry (“Declaración de Obra Nueva”) which you must ask the seller to do before or at the time of purchase. Maybe it is necessary to record the building in the Catastro if it has not yet been done. In this case the Tax Agency will charge for the last four years unpaid taxes. Is it worth asking the seller to do this?.

Regarding flats

Usually a flat has a recorded history in the Land Registry before the purchase. It would be highly surprising to be offered a built flat that is not in the Land Registry, and therefore should be treated cautiously. The same applies to spaces such as attics or lofts that are offered for sale with the flat and do not have their own deeds, nor are included in the deeds of the flat. Sometimes such items, such as storage units, parking areas and so on, are offered for sale as single units, and they must be sold with the flat with which they are annexed indivisibly.
Remember that the Land Registry is not a guarantee of surface area, so you can not knock down the wall to extent your purchased flat into your neighbour’s because in reality it has fewer metres than recorded!

Community fees

If your property is part of building which you will share with other owners, the property may be encumbered with the payment of general community fees that have not been paid during the current year and the three before it. This information is not in the Land Registry, so the seller must give you a certificate from the community secretary or president for the sums that are owed.

Tenancy

If an urban property is occupied by a residential tenant with a new contract ( since 9-3-2019), the buyer is bound by the current contract for five years from the start of the tenancy, ( seven years if the land owner was a corporation) whether the contract is recorded in the Land Registry or not.

If the contract is recorded, the buyer must respect the tenancy for its full duration as agreed with the previous owner.

If the tenancy is for non residential purposes, the contract must be recorded in the Land Registry to bind the purchaser if he or she did not know of its existence by any other means.

If it is an old contract, it is probably not in the Land Registry but, in this case you must be aware that in very old ones (in general, those before 09-5-1985) you will have to respect these contracts, held by individuals, until the tenant´s death or that of their partner, if later. If there are children living at home, they will have the right to remain living there until they are twenty-five years old, or for a further two years if they are already twenty-five or older. In the case of having a serious disability, they will have the right to remain until they die.

If the property is rural land with a professional farmer as a tenant, you will have to respect his contract whether it is old or new, even if it has not been entered in the Land Registry. In the case of a new contract, this will be until the completion of a period of five years from the start date of the contract, or from the end of a previous five-year period.
In both cases, urban or rural, the tenants have priority to acquire the property paying you the price and cost you have been paid.

To avoid this, the seller must notify the tenants of his intention to transfer the property, the price and the other principal clauses of the contract for them to be able to exercise their rights. The tenants can only claim from the new owner if they have not been notified, or if the price or the principal clauses that are notified are different from those agreed with the buyer.

Planning Authority

You will also be liable for any obligations with the planning authority that the previous owners may have had. These obligations must be written in the deed, but if any are not, you have the right to cancel the purchase agreement within four years from the time of purchase.

It is quite common in recently developed units that the inscription in the Land Registry carries a warning advising that the property acts as a guarantee for such development costs, so any purchaser may be liable for them. This is nothing to worry about if the warning note is more than seven years old as this is the maximum validity of the warning.

AND REMEMBER: If you are buying land to build on, the seller must state:

.- If it is not permitted to build on the land that is being sold.

.- If private use is not permitted.

.-If any illegal buildings exist.

.- If it is designated for any kind of socially protected residences.

This information must be given to the purchaser from the beginning, BUT

If no statement is finally made in the purchase deed, the purchaser has the right to rescind the purchase within four years of the date of purchase.

Taxes owed

Another encumbrance on property that is not published by the Land Registry is debt from I.B.I. that has not been paid by previous owners. The notary will inform you if there is any at the time of signing the public deed.