This is a translation of another post on this blog. Apologies to english speaking readers for this «free» translation
As an expert witness on court I will describe along this post a real case of our peculiar system.
We have all sort of involved intervenient, a Real Estate Developer, a Citizen, a Municipality, a Bank, a Notary, the Cadastre… but it is missing someone… would you guess who?
The history goes back about 15 years ago, when a citizen makes an exchange of land with a Town Council. The swap consists of the transfer of a plot property of the citizen to the City Hall, and City Hall gives the citizen a «buildable plot» which comes from segregation.
Several years later, a developer buys the citizen’s plot
The description of the real estate that is transmitted is as follows:
«Urban-plot of land, located in the municipal district of VillaEnMedio, in the neighborhood known as «Los Despistaos”, with an area of 1600 square meters. And its boundaries are: to the North, road which separates it from the parent plot, to the South, Urbanización Los Cantos; to the East, holm oaks apartment complex; and to the West with the estate owned by Juan Juánez»
In the same script of purchase notary makes mention of the cadastral reference. But cadastral certification is not provided (1) , although the notary makes mandatory warnings…
In the image below, the cadastral map the same day of the property transfer at the notary’s office,
(1) as a cadastral certification is not provided they could not notice that the area (more than 2000 m2) and delimitation (it had not been segregated yet 1600 m2 from parent plot) did not match with the one described in the previous title.
and 3 weeks after the purchase, the Cadastre shows the real situation of the plot.
The developer prepares to build on the plot, and this carries out the project which begins to run… spite it is «ignoring» that the plot now is less than 1500 m2, which is the minimum size required by the General plan to build in that area.
Meanwhile the developer obtained a mortgage from a bank to execute the work.
In this coming crisis and a neighbor to disgust with the work and reporting work to the Town Hall that plot does not meet the minimum area.
The developer realize that the market is not what it used to be and he will not be able to sell the flats and apartments as planned then he demands on court the citizen from whom he purchased the «buildable plot» and starts the legal process (the Bank is also part since it is forwarder partner… do not forget the mortgage).
Technically legally processes since the start of this particular history are spotless, where involved notaries, registrars, Bank and mortgage, lawyers, and Administration (City Hall and cadastre) took part on it with all the guarantees of the public
All rights of property, urban, and surface, pristine and unassailable… but… nobody came set as to their delimitation as in its surface accommodate the object of the transaction.
[Sarcasm mode ON]What for? [Sarcasm mode OFF]
If it is only a harmless buildable plot having guarantee of a deed signed and checked by a notary, a land registration checked by a Land Registar and up to an administrative authority (City Council) in the initial Exchange. Who could suspect that all these agents involved could fail in the definition of the good to transmit?
Now only we can wait pray and that the judge interpreted the civil code, explicitly designed to try to solve problems rather than preventing them, and deliver judgment in favor one and blaming another, when as a matter of fact there is a clear and manifest culprit which is none other than the system of legal security in Spain
