21 July 2015

Reform on the Mortgage Law and The Cadastre. Law 13/2015 improves legal certainty in real estate transactions.-

“Published in the BOE of 25/06/2015; Law 13/2015 that reforms the Mortgage Law and the Cadastre and will coordinate both institutions improving legal security in real estate transactions.”

Purpose of the Amendment.-

On June 25th, 2015 the BOE published Law 13/2015, that reforms the Mortgage Law and the Cadastre.

The prime object pursued by the Reform of the Mortgage Law and the Cadastre is to increase the collaboration between the Registry and the Cadastre by the mutual exchange of information. The Registry will then be able to determine with more precision the plot or parcel of land on which it projects its effects, by means of graphic representation and cadastral cartography which will reflect all alterations and registry modifications that the physical property has suffered, by means of any event, business or legal transaction.

2.- Inclusion of the graphic georeferenced representation into the registry sheet.-

2.1.- One of the most important reforms to the Law is the inclusion or incorporation of the graphic geographic representation of each property in the registry sheet. This graphic representation must be carried out, in general terms, by submitting the cadastral certificate of the property. From June 25th onwards this certificate, the cadastral certificate, will appear formally as public information in the Property Registry.

Law 13/2015 establishes that once the graphic representation of the property has been registered it will prevail as the correct surface over the literal written surface information that the Registry may hold.

Once the cadastral certificate is included, the public information issued by the Registry (Nota simple, Certificates) will not only contain the cadastral certificate but also will expressly mention that it has been coordinated graphically with the Cadastre.

Similarly, the Cadastre must also reflect that it is coordinated with the Property Registry and the registry code must be included.

2.2.- In compliance with modification of article 199 of the Mortgage Law, owners of property or holders of property titles may complete the literal transcription of the property with the cadastral certificate. So, as of the enforcement of this Law, this inclusion may be carried out.

2.3.- The inclusion of the cadastral certificate is not automatic; the Law clearly states the Registrar must have no doubt, an absolute certainty that the certificate corresponds to the registered property; checking in the case of discrepancies with previous graphic representations. Nevertheless, the Law establishes a presumption here between the graphic representation from the Cadastre and the Property Registry when “both institutions refer basically to the same parcel of land and the differences in surface area or size, if these exist, do not surpass 10% of the registered surface and is not an obstacle for the perfect identification of the registered surface or its limits with respect to adjacent plots or buildings.”

The Registrar must notify neighbouring owners and if any of them oppose the registrar must resolve expressly. The mere opposition formulated by the adjacent owner is not sufficient to prevent the registration of the cadastral certificate.

2.4.- When a new build is declared and a horizontal division is practised, the graphic representation for each element/unit (apartment or premises), will be taken from the project that is incorporated into the building book as regulated in the LOE (article 7), book which is to be deposited with the Registry.

3.- Other Modifications.-

3.1.- The Law establishes that each property will have its own registry code. It establishes that once that the Cadastre and the Registry have been coordinated, the Cadastre must receive this Code.

3.2.- The file to establish ownership ( Expediente de dominio) and registration of property (inmatriculación de fincas) is no longer enacted before the judge. It may be practised before the Notary Public (article 203). If any adjacent owner were to oppose, the Notary will store the file and the promotor of the file may initiate court proceedings against the opposing party.

Marbella, 16th of July 2015

Written by

José

Castellano Fernández

[email protected]

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