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The latest
developments in Spanish land registry
(Part I) |
Attorney
Stefan Meyer, Madrid
Lawyer
Stefan Meyer is a partner of the legal office of Monereo, Meyer
& Marinel-lo Abogados/Lawyers in Madrid and Secretary
General of the German-Spanish Law Association
(February 2002) |
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As a result of the annexe to the Spanish
budgetary law 24/2001, which was published in the official
Spanish gazette of December 31st 2001 (1)
and came into force on 1st January 2002, various
regulations with considerable implication for Spanish land
registry have been added or modified. Those most affected by the
new rulings are the "registradores" (land registry
judges) and Spanish notaries. Worthy of particular mention are
the variety of possibilities, which in comparison to the
property register (2),
permit many legally relevant acts (request for extracts,
priority provision of security) to be carried out using the
"e-mail" system. Furthermore, the drawing up of
notarial deeds of transfer will be considerably easier as will
the deletion of "old encumbrances" from the property
register.
I. Notaries shorter documents
With immediate effect, documents of Spanish
notaries are to become shorter in length! By means of Art. 98 of
the last budgetary law annexe, the Spanish legislator has now
granted notaries the possibility of determining themselves the
scope or serviceability of a power of attorney by taking into
account the actual business at hand. Until now there was a kind
of double inspection procedure. First the notary would check the
powers and then - providing that he had deemed the authorization
given in a particular instance as sufficient would copy word
for word the corresponding authorizations in the notarial
document in laboriously detailed fashion. Next, the land
registry judge would inspect the authorizations once more and
only then enter the document in the property register, if he too
had previously found them to be satisfactory.
This has now changed: with immediate effect,
it will now only be necessary for the notary to carry out
inspection. Only an express reference to the original power will
figure in the document and confirmation under his own
responsibility that the given authorizations are sufficient. The
corresponding certificates of power of attorney will only be
drawn up if required by law or the notary considers it necessary.
This new regulation is to be welcomed. Both
Spanish notaries and Spanish land registry judges are fully
qualified jurists whose declaration of authority to attest
documents ("fe pblica") may be given. If through
this action it will mean that documents often far too long in
the past will become shorter, as will the time taken by Spanish
land registry judges to carry out their inspections, then the
legislator has with this point alone in the partial reform
obtained the desired success.
II. Land
registry judges tighter deadlines
While granting Spanish notaries increased
flexibility, the legislator has imposed new deadlines for land
registry judges. From 1st January 2002, all notarial
documents presented to him must be evaluated and the decision
whether to inscribe them taken within a period of 15 days. If
the judge does not comply with this deadline, the petitioner has
the right to set a further 3-day limit. If he still fails to
decide within this time, then a reduction of 30% in his
registration fees automatically ensues. This undertaking by the
legislator is implemented through the amended version of Art. 18
of the Spanish mortgage law. If one considers that Spanish land
registry judges, as well as Spanish notaries work freelance and
receive fees ("aranceles") for their official
assessments, then by all accounts the Spanish legislator has
created something which in practice is likely to be a very
effective tool: it is unlikely to go down well with a land
registry judge if he has to do without part of his fee because
the office working within his commercial organisation is unable
to comply with the deadlines now laid down by law. Regardless of
this, of course, the penalties system provided for in the
mortgages law, which has itself been tightened during current
revision (3),
also applies.
To be continued
!!
(1) Boletn Oficial del Estado n€ 313 of 31st
December 2001, pp. 50597
(2) Comparable to the German Land register. The "registradores"
(land registry judges) are independent and receive fees
"aranceles". Comparable to importance and function of
the Spanish property register, in detail Meyer ZflR
2000,p. 432 onwards, and Gantzer Spanisches
Immobilienrecht (Spanish property law) 8th Edition
1999 p. 40 onwards.
(3) Also undergoing complete revision is title XII of the
Mortgages Law (Penalties) which will affect not only Land
Registry judges but also those of Commercial registry: "De
la responsabilidad y del regimen disciplinario de los
registradores.
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