I’ve decided to write this post in English due to the last publication: EuroGeographics 2015 Annual Review.
EuroGeographics is the membership association and acknowledged voice of the European National Mapping, Cadastre and Land Registry Authorities.
In the mentioned publication there is a page dedicated to Spain and its recent reform of the Cadastre and Mortgage Laws.
With the title “INCREASING LEGAL CERTAINTY AND TRANSPARENCY IN SPAIN”
The document above certainly expresses “the state of the art” of the Spanish property system, and therefore I acknowledge that it will be understood by a few of the Spanish professionals such as some lawyers, notaries, land registrars or surveyors.
I’m aware that the average European citizen is not an expert of the Real Estate management and conveyancing system.
Why not? It is simple, they trust that the Government will protect their ownership as well as their goods.
Then why should they think that in another European country they must specifically take care of anything? They don’t…They live in Europe, they decide to invest in another country of Europe where free movement of persons and goods are ensured.
Let’s focus on the issue. The reform of these laws is especially focusing on the unbuilt Real Estate (Land).
Firstly, they read
“Cadastre holds physical and economic data of the real estate together with the identification of the cadastral title holder”
Then they think
“Oh my God, there are two sort of title holders, Cadastral and Land Registry…Which is the correct one?”
Moreover, what can they think after reading
“The Spanish Cadastre is compulsory by law, the Land Registry is not”
Well, until they realize that the Spanish Real Estate Cadastre is all about taxes and the Land Registry is all about ownership protection, it will be the first “wrong impression” that they might have.
Obviously these two paragraphs shall encourage the European citizen that is eager to invest in Spain, to hire the services of an expert professional who may advise them in all this mess.
Because they want to buy a piece of land where they can build the house of their dreams, they may think that a lawyer is the best option for a safe purchase. That’s absolutely right!!
Unfortunately lawyers in Spain focus mainly on the ownership issue. To avoid fraud, they do what’s called “legal due diligence report” which is an extensive report with deep research on the ownership and the taxes related to the conveyancing.
But the “object” to be purchased is mostly forgotten.
Why? Because in the deeds the object (land) is vaguely determined, mostly literally described with inaccurate or out of date boundaries. The area is commonly unreal due to an old unit’s conversion which may provide an absolutely wrong and contradictory surface of the land without correlation into the boundaries.
The so-called “preventive juridical system” in Spain is strong and safe towards the ownership but poor and unsafe towards the “object”.
Theoretically the Spanish Real Estate Cadastre should take care of this issue, but it’s tax purpose causes the contrary effect. The non-publicly declared uncertainty of the cadastral boundaries by the Cadastral Authorities is a major issue.
Everyone watching the cadastral maps shall think that those are legal boundaries, but nothing is more far from the truth. The Spanish cadastre is not a measured cadastre, the only purpose of those inaccurate border lines are to establish the area which will be the basis of the tax receipt.
Now with the reform of Real Cadastre and Mortgage laws, it seems that every real estate unit (land) may have a correspondence between both public registries with a safety for the owners as well as for the plot delimitation but this reform forgot something quite important on this issue. It is still permitted to sell or buy a piece of land through the transfer of title (conveyancing) which is a document that contains the declaration of the current owner related to the boundaries without the approval of the neighbours.
The worst part of it all, from my point of view, when a subdivision may occur, there is no obligation to legally demarcate the plot prior to the administrative permission of division.
Some years ago, this was a major problem in France, and it was solved by adding an item to the Land Planning law concerning the obligation of the previously legal demarcation of any plot, able to be subdivided and built, prior to the conveyancing authorized by a notary.
In Spain, I’m afraid that this great idea won’t be integrated in our legal system until the increase of court cases may show the way.
I would strongly recommend that any European citizen who may wish to invest in Spain, hire the services of an expert land surveyor that will professionally provide the “technical due diligence report” to ensure the investment.
thanks Mich 😉