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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)

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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