The Land Registry in Spain
The Land Registry is a legal institution that guarantees the publicity of the rights in rem on real estate, as well as the protection of the registry through the principles of legitimation and public faith.
The registry legislation (called mortgage legislation) is made up of the rules that regulate the publicity of the rights in rem through the Land Registry. It takes its name from the rule that contains most of its regulation: the Mortgage Law, which in addition to regulating the mortgage, systematizes the legal status of real estate publicity. Mortgage legislation is applied throughout the national territory, and is the exclusive competence of the State, as it contains rules relating to registers and public instruments.
The mortgage legislation is basically composed of the Mortgage Act, the Mortgage Act Regulations and the Civil Code, Articles 605 to 608.
The doctrine of the General Directorate of Registries and Notaries in registration matters has been shaped through the resolutions of appeals filed against the qualification of property registrars and is of absolute transcendence in this matter.
The purpose of the Land Registry is the registration of acts and contracts relating to the domain and other real estate rights in rem. It can be registered Real estate and rights in rem on real estate, administrative concessions, real estate subject to obligatory transfer in accordance with urban planning legislation, and real estate in the public domain.
Court decisions on incapacity, prohibitions on disposal, acts modifying registered rights, declarations of new work, excess capacity, and the grouping, segregation, aggregation, or division of properties are also subject to the Register.
Personal rights have access to the Land Registry, when the Law allows it in some specific case, for example, real estate lease.
Function of the Land Registry. – The purpose of the Land Registry is essentially to provide full legal certainty to registered rights and property transfers, and to protect real estate legal transactions, since it is presumed that registered rights in rem exist and belong to their owner in the form recorded in the Registry.
The principle of public faith in the registry protects those who acquire in good faith from a registrant for a fee and in turn register the acquired right. As regards territorial jurisdiction, the registration of any title to real estate must be made in the Land Registry in whose territorial demarcation the real estate is located.
The Principles of the Spanish Registry System
In the Spanish Registry System, the registration is voluntary, declarative and, exceptionally, constitutive, as in the case of the right in rem of mortgage. It produces legal effects, especially with regard to the protection of third parties by application of the principle of public faith. The transfer takes place by title and mode outside the Register. The Register is kept by properties(Finca), and each property has its own page in the Register.
The principles of registration are the fundamental rules of the registry system. They are as follows:
- Principle of non-opposability. Titles of domain or rights in rem that are not registered or noted in the Registry do not affect or prejudice the third party that registered or noted their right.
- Principle of Consent. Once the consent has been given in the title that causes the registration entry, it is not necessary to expressly consent to the modification of the registration status, although, due to the principle of rogation, in order to cause the modification of the ownership it is necessary to urge the Registrar to practice the respective entry.
- Principle of Application. Given the voluntary nature of the registration, for it to take place, it must be requested by one of those legitimated by law to ask for it.
- Principle of material publicity. This principle explains the effects of registration, and is integrated, in turn, by two other principles: the principle of public faith and the principle of legitimacy.
- Principle of formal publicity. The Land Registry is accessible to all those who have a legitimate interest in finding out the status of properties.
- Principle of Priority. Once a given title has been entered into the Registry, those that, being of the same or an earlier date, are incompatible with it cannot do so.
- Principle of legality. Only valid and perfect titles can access the Registry books. Given the presumptions of existence and validity that the Law grants to registered rights, and to guarantee their full legality, a strict qualification procedure is followed by the Registrar, prior to registration, to register the title, if it passes the qualification, or is denied or suspended, when it considers that there are defects, which may in turn be remedied or insurmountable.
- Principle of successive tract. For a right to be registered in respect of a previous holder, it must be recorded in the name of the transferor, except in the case of an abridged version and the resumption of the interrupted successive version.
- Specialty Principle. Each and every one of the elements of the registered rights must be perfectly determined: description of the property, owner, holders of limited rights, content and extension of these, etc.
Strictly speaking, the registration is a specific type of Entry: the Registration Entry. Because of their protective character of the public interest, the Entries are under the safeguard of the courts, and produce all their effects, as long as their inaccuracy is not declared by the courts.
In a broad sense, registration is the record of an act or right, and there are the following types of registration or entry:
- a) Declaratory registration. Declaratory registration is the general rule. It merely reflects a previously existing legal situation. The creation or transfer of the right takes place before it is recorded in the register.
- b) Constituent registration. Exceptionally, the registration creates the actual legal situation it contains. The right is not born until the registration takes place. For example, the registration of the mortgage.
(c) Voluntary registration. The holder of the right may, but is not obliged to, request registration. The act or business susceptible to access the Registry produces civil effects even if it is not registered, but it means not accessing the Registry protection.
- d) Partial registration. It occurs when the presenter or grantor accepts or requests that only the parties that deserve the favorable qualification of the Registrar be registered.
Inscription and tradition. – The transfer of ownership occurs, among other reasons, because of certain contracts through tradition or delivery of the thing. Generally, unless expressly provided otherwise, a public deed is equivalent to tradition. The Registry records a transfer of rights that has taken place outside it and therefore, when the title is registered, the transfer has already taken place. The Registrar qualifies not only the title, but the entire transfer relationship, i.e. title and mode.
The foreign notarial document, by which a property located in Spain is sold, is valid as an instrument of a contract, but not as a title of immediate transfer of ownership, since it lacks the legal force equivalent to the Spanish public deed as a title and means of transferring ownership, not being, for that reason, a registrable title either.
Registration and cause. – The cause of the obligation to be established is an essential element of the contract. For this reason, the cause must be stated in the title submitted for registration, and contracts without cause or with illicit cause are null and void. In the field of private law, it is not necessary for the cause to be expressed in the contract, it being presumed that it is lawful and that it exists until the contrary is proved.
Registration, taxation and prevention of money laundering – The control of money laundering is not a burden entrusted exclusively to notaries, linked to their duty to identify grantors. It is also the responsibility of the Registrar, who must point out the defects that, in relation to the control of money laundering, prevent registration. No registration is made in the Property Registry without prior proof of payment of taxes, if they are due on the act or contract to be registered.
Nor can a title be registered in the Land Registry that contains acts or contracts by which the domain and other rights in rem over real estate are acquired, declared, constituted, transferred, taxed, modified or extinguished, or any others with tax implications, when the title does not include the tax identification numbers of all those appearing and, where appropriate, of the persons or entities on whose behalf they act.
In addition, the means of payment used by the parties must be expressed. In addition, in certain cases, the notary must incorporate the prior declaration of the movement of the means of payment provided by the parties by application of the legislation for the prevention of money laundering. If this declaration is not provided by the party obliged to do so, the notary must record this in the deed and notify the corresponding body of the General Council of Notaries.
Deeds that do not include tax identification numbers or do not express the means of payment are qualified with a remediable defect. The defect is only understood to be rectified when a deed is presented to the Land Registry which contains all the tax identification numbers and which identifies all the means of payment used.
The registration of contracts for which a price or cash delivery has been made shall state the price resulting from the title, as well as the manner in which payment has been made or agreed upon, with proof of the means of payment used.
Nor will the Land Registry proceed with the registration of documents containing acts or contracts subject to the tax on the increase in value of land of an urban nature, without first providing proof of having presented the self-assessment of the tax or, where appropriate, the declaration or communication of the occurrence of the taxable event.
In public deeds relating to acts or contracts declaring, constituting, transferring, encumbering, modifying, or extinguishing for valuable consideration the ownership and other rights in rem of real estate, the means of payment used by the parties must be identified. The parties must express the amounts paid in cash, and the deed must record these statements.
The notary must incorporate testimony of the checks and any means of payment that are delivered at the time of the granting of the deed. Appearants must also provide the details of any bank cheques issued previously, and the appellant making the payment must provide the code of the account from which the funds were drawn.
In the case of payment by transfer or direct debit, the parties must provide the data corresponding to the codes of the debit and credit accounts, which will be recorded in the deed of such statements. In any case, the means of payment are understood to be identified if the essential elements thereof are stated in the deed, by documentary support or statement. For these purposes, if the means of payment is a cheque, it is sufficient to state the drawer and drawee, the beneficiary, if it is nominative, the date and the amount; if it is a bank transfer, it is understood to be sufficiently identified, even if the codes of the debit and credit accounts are not provided, provided that the originator, beneficiary, date, amount, issuing and receiving entities or beneficiaries are stated.
The requirement concerns the identification and not the justification of the means of payment used by the parties.
The payment made to a third party is valid, so the payment of the price to the seller or to another person is not a problem of identification of means of payment, it does not interest the Registry the reason why the payment was not made to the seller.
Properties and rights in rem that can be registered in the Land Registry
Although, formally, what is registered are the documents that contain it, materially the real estate and the facts, acts or legal transactions that cause the acquisition, modification, transfer or extinction of the rights in rem on them are registered. In other words, the titles, acts and contracts causing the legal-legal alteration are registered in the Register, for the publicity of the rights in rem contained therein.
Rights in rem – The rights in rem that can be registered in the Registry the domain and all the rights in rem on real estate. Among others, the titles that transfer or declare the domain of the real estate or the rights in rem imposed on them can be registered, and the titles in which they are constituted, recognized, transmitted, modified or extinguished rights of usufruct, use, habitation, emphyteusis, mortgage, census, easements and any other rights in rem. Also subject to registration are trust property, i.e. acts and contracts by virtue of which real estate or rights in rem are awarded, even if it is with the obligation to transfer them to another or to invest their amount in a given object.
The following may also be registered, although their object is not rights in rem, among others: contracts for the lease of real estate, and subleases, assignments and subrogations of these, the right of option, the right of return, leases, prohibitions on disposal, and mere facts, such as horizontal property and its statutes, facts modifying registered rights, declarations of new works, excesses of space, grouping, segregation, aggregation and division of properties.
Registration at the request of a party – Registration in the Land Registry is voluntary and is carried out at the request of a party. It can be requested, indistinctly, by the acquirer of the right, by the transferor, by whoever has an interest in ensuring the right to be registered, or by whoever has the representation of any of them, which is held by whoever presents the corresponding documents in the Register with the purpose of requesting the registration.
The Registry publishes the legal history of the property, which is the basic unit of the system. Each property has a page or sheet in the Registry’s books, with a different and correlative number since the first inscription or immatriculation.
The property in the material sense is a delimited area of land, which forms a unit and is determined by geographical criteria. The Property Registry is everything that opens a page in the Register, that is, a registry entity determined by its own number and a particular page.
The main distinction is that of rustic and urban properties, a distinction that is determined in the urban regulations. The qualification of a property as rustic or urban is determined by the criteria of situation, the existence or not of constructions and if, legally, it is possible to construct them, the destination of the property, and the main or accessory character of the diverse uses of which the property is susceptible. Rustic properties are those located on rural land and on urban land that has not yet been transformed.
It is Finca Registral everything that can be registered under one number. Each property has, since it is registered for the first time, a different and correlative number. In particular, the real folio of each property must necessarily incorporate its unique registration code.
The Land Registry opens a separate registration sheet for each property. All subsequent inscriptions, annotations and cancellations relating to the same property will be made subsequently, without leaving any gaps between the entries.
This situation occurs when more than one independent page is opened for the same property and can occur in the cases of horizontal property, private urbanisations, real estate complexes, use of real estate by turn, undivided quotas with the right to exclusive use of the garage, properties that include territories of several registers.
Immatriculation is the first registration of a property. This opens the sheet of your private register. The first registration of each property in the Land Registry must be of domain and be carried out in accordance with the procedures regulated in the Mortgage Law, Articles 198 to 210. The main means for the first registration in the private sphere are the domain file, the public acquisition titles, and the final judicial resolutions that declare the ownership of real estate.
The immatriculation of a property in the Property Registry requires the presentation of the Cadastral Certification of the property with the purpose of incorporating to the inscription its georeferenced graphic representation that serves to complete its literary description. The only exceptions to the need to provide the cadastral certification are those cases in which the law admits another alternative graphic representation.
The holder of the registration is the natural or legal person who, according to the Registry, occupies the position of active subject of the registered right. Any registration made in the Land Registry must express the natural or legal person in whose favour the registration is made.
- a) Their name, surname and marital status, according to the title and the indication of their national identity card or driving license – also valid as a means of identification. b) The profession, address, marital status and nationality. d) If the holder is married, widowed, legally separated or divorced and the act or contract registered affects the present or future rights of the marital partnership, the name and surname of the other spouse must be included.
In the case of a Legal Entity, the identification must indicate: a) the company name, type of legal entity, tax identification number, address, entry in the corresponding Register and nationality; b) the circumstances of the legal or voluntary representation, the personal circumstances identifying the representative, the power of attorney or appointment conferring the representation and, if applicable, the entry in the appropriate Register. c) The attribution of personality. In the case of trading companies, which require prior registration in the Mercantile Register, no contribution or acquisition of real estate or rights in rem may be made in favour of the company without prior registration in the Mercantile Register.
Publicity of the Registry’s content
For the Land Registry to fulfil its main purpose, it facilitates access by interested parties to the information it contains and facilitates the accreditation of its contents in registry entries where appropriate. All this is achieved through so-called formal publicity, which fulfils a triple function: It is a means of finding out the status of registered real estate or rights in rem; secondly, it is the only means of proving, against third parties, the freedom or encumbrance of real estate or rights in rem. And, finally, t is a means to get to know the possible discrepancy between the Registry and the extra-registral reality.
The Registers are public for those who have a known interest in finding out the status of registered real estate or rights in rem. Such known interest must be assessed in each case by the Registrar. If the Registrar denies the requested information, the interested party may file a complaint.
the effectiveness of the formal publicity of the Registry is done by means of the statement of the books; simple informative note; certifications; certifications with continuous information; explanatory report; e-mail.
The Land Registry is kept in books that are foliated and legally endorsed, and the books can be kept by computerized means that allow telematic access to their contents at all times.
The content must be updated at the same time as the titles are presented for registration if the presentation is made during office hours, regardless of the means used for the presentation of the titles.
Before the opening of the Registry to the public, the modifications resulting from the presentation of the titles made on the previous working day out of hours must be incorporated, attending to the rigorous order of entry if they were presented online.
The entire function of updating the content of the books is carried out by means of an Entry Book in which all new data affecting the registry entries are recorded, adopting the necessary precautions to prevent any manipulation or alteration of the order of presentation of the titles or of the entries already made. This book must be directly and online accessible to officials and employees.
When the Registrar refuses to disclose the Registry’s books or to issue certification of their contents, the person concerned may appeal against his decision to the DGRN.
Exhibition of the Registry Books – The registrars must show the Registry books in the necessary part to persons who, in their opinion, are interested in consulting them, without taking the books out of the office and with the appropriate precautions. The declaration is made by Informative Simple Note and by Registry Certification.
The Nota Simple has a purely informative value and does not attest to the content of the entries, without prejudice to the responsibility of the Registrar for damages caused by errors and omissions suffered in its issuance. It must reproduce, literally if the interested party so requests, or in an extract in any case, the content of the current entries relating to the property that is the object of the manifestation, where it is stated, at least, the identification of the same, the identity of the holder or holders of rights registered on the same and the extension, nature and limitations of these. Likewise, the prohibitions or restrictions affecting the owners or registered rights shall be recorded in any case. A simple note may also be drawn up on certain points requested by the interested party. Registrars must ensure compliance with the rules on the protection of personal data.
The manifestation is made to persons who manifest a legitimate interest in knowing the contents of the Registry books. This legitimate interest may be manifested personally, or by a representative of the interested party, who must identify the person on whose behalf he is acting and the assignment received; in this regard, persons or entities carrying out a professional or business activity, related to the legal traffic of real estate; public entities and bodies; and detectives, are presumed to be accredited, provided they express the cause of the consultation and it is in accordance with the purpose of the Register.
Simple Informative Note: This consists of a brief extract of the contents of the current entries relating to the property being demonstrated, with a purely informative value, and without giving evidence of the contents of the entries. Nevertheless, the Registrar shall not be liable for any damage caused by errors and omissions in the issuing of these entries.
The Informative Simple Note must include the identification of the property; the identification of the holder or holders of registered rights on the property; the extension, nature and limitations of these; and the prohibitions or restrictions that affect the holders or registered rights.
The simple note can be issued in relation to specific points requested by the interested party. These details must be reproduced verbatim if the interested party requests it, or in extract, if he does not request it. The simple note must faithfully reflect the data contained in the registry entries, to the extent necessary to satisfy the legitimate interest of the applicant. Such interest is presumed in the event that the information is requested for tax purposes, property valuations or for the purpose of granting loans or credits with mortgage guarantees, with literal insertion if the applicant so requires.
Registry Certification – The certification is a public document issued by the Registrar, containing a copy or transcription of the contents of the Registry. It is the only means of documenting the mortgage situation of the properties or rights, such as the freedom or encumbrance of the real estate or rights in rem, to the detriment of third parties. The value of the certifications is that of public documents.
Certificates are issued upon request. The most frequent certifications are: a) Literal and related certifications The literal certification is the literal copy of the Registry entries; while the related certification only includes certain circumstances. b) Certificates of title. These certify the ownership of a property or right in rem. c) Certificates of encumbrances. These certify the status of charges on a property.
It is also possible to request the certification with continuous information, which allows to know the certificates presented from the issue of the certification and up to a maximum period of 30 days after it. Once 20 days have passed since the issue of the previous one, a new certification with continuous information can be requested.
Registry Note.- The Registrar must place, at the foot of every title that is entered in the Registry, a note signed by him, expressing the qualification made. In the event of a positive qualification, the Registrar records and issues the dispatch note at the foot of the title with the data identifying the entry, which it includes: volume, book, folio, estate and number or letter of the entry made; right in rem registered or right noted; name of the person in whose favour the right is registered or noted; charges and conditions and entries cancelled due to expiry; omission, where applicable, of the cadastral reference; previous charges or limitations other than those expressed in the title dispatched; list of marginal notes of having issued certificates of charges; indication that the entries are under the protection of the courts.
If there is a discrepancy between the title and the Registry, a simple informative note must be issued with the Registry, indicating what the discrepancy consists of.
In the event of a negative qualification, even in the case of a partial registration at the request of the interested party, it must be signed by the Registrar. The report must state: the grounds for refusal, refusal or suspension; the legal grounds for the refusal, in terms of fact and law; the means of contesting the report, the body before which the appeal may be lodged and the time limit, without prejudice to any other appeal that the person concerned may wish to make.
After the signed note, the Registrar must, at the request of the interested party, record in a section called “observations”, the means of rectifying, rectifying or validating the faults or defects in the document submitted, without prejudice to the right of the interested party to rectify the defects by the means he considers most appropriate. If the case is complicated, the interested party may request an opinion, binding or otherwise, on the form of rectification. If it is binding, the legal status of the registration and the suitability of the remedy for the content of the opinion, which must be issued within 10 days, must be maintained.
In the event of a negative qualification, there is the possibility of going to the Registrar indicated in the table of substitutions, requesting a new qualification of the degree, within 15 days following the notification of the negative qualification, in order to obtain, if necessary, the practice of the requested entry.
Relations between the Cadastre and the Land Registry
The regulation of the relationship between the Cadastre and the Land Registry responds to the need for consistency in the data contained in both.
On the basis of a tax purpose, the obligation to reflect the Cadastral Reference in all public or private documents containing acts and business of real importance that affect real estate, as well as in the inscriptions and notes that must be made in the Land Registry, is established. Such measures allow for the comparison of documentation referring to real estate handled by the various public administrations, thus facilitating the verification, investigation and inspection of transactions and alterations of all kinds relating to such assets that are of tax significance, with the aim of favouring compliance with tax obligations and preventing fraud in the real estate sector.
The Cadastral Reference of the real estate must appear in public instruments, judicial orders and resolutions, administrative files and resolutions and in the documents where the facts, acts or businesses of real importance related to the domain and other rights in rem, contracts of lease or assignment by any title of the use of the real estate, contracts for the supply of electrical energy, technical projects or any other documents related to the real estate that are determined by regulation.
It is compulsory to record the Cadastral Reference in the Land Registry. The impossibility of recording the Cadastral Reference does not prevent the extension of the corresponding entry, and any doubts that may arise must be resolved in favour of the practice of registration, with the lack of the corresponding cadastral certification being noted by a marginal note. Consequently, the omission or error of the entry does not affect the validity of the entry, nor the principles of legitimacy or public faith.
Documents that can accredit the Cadastral Reference.- The Cadastral Reference can be accredited by means of an Electronic Cadastral Certification, Certificate issued by the Cadastre, Public Deed or Registry information, or, finally, by means of the last receipt of payment of the property tax, provided that the cadastral reference appears clearly in this document.
Cadastral reference in notarial documents. – In all public deeds containing acts or businesses of real estate importance, relating to the domain and other real estate rights, as well as in real estate rental contracts, the grantors or applicants must accredit the Cadastral Reference to the notary, unless it can be obtained by telematic procedures, transcribing the document that authorises the reference and incorporating the cadastral document provided into the matrix.
However, in the event of an urgent situation alleged by the grantors, the notary may authorise the document, stating this, transcribing the cadastral reference, highlighting the proof provided and expressing his doubts as to whether the cadastral reference corresponds to the property. Once the document has been authorised, the notary will refrain from recording the reference communicated by the Cadastre without the consent of the grantors.
When the notary considers that the Cadastral Reference resulting from the documents provided by the interested party may not coincide with that corresponding to the property that is the object of the documented legal act or business, he must notify the Cadastre, requesting certification or an informative document, which will be sent to him by any means that allows its recording, in the shortest possible time, and always within the 5 working days following receipt of the request.
In the case of groupings, aggregations, segregations or divisions of properties or the constitution of the horizontal property regime on a registered property, the notary sends the Cadastre a simple copy of the public deed together with the plan or project so that a new Cadastral Reference can be issued, which will be communicated by the Cadastre to the notary.
The Property Registrar, once the documentation presented has been qualified, has to collect the Cadastral Reference in the entry, as another piece of information about the property, so that it is probable that it is identical to the property. In addition, it is possible to reflect the cadastral identification of the properties as a specific operation in the register. If the registered Cadastral Reference is modified without altering the physical characteristics of the property, this must be recorded by communication of the Cadastre.
If the registered Cadastral Reference undergoes any modification that does not derive from a change in the physical characteristics of the property, the certification issued for this purpose by the Cadastre will suffice for its record.
In the case of registration of acts of an urban nature, the Registrar will send the General Directorate of Cadastre a copy of the plan the day after it is submitted to the Land Registry. The Cadastre will return to the Registrar, within 5 days, the cadastral references of the properties subject to the act in question.
When the Registrar considers that the Cadastral Reference resulting from the documents provided by the interested party may not coincide with that corresponding to the property that is the object of the documented legal event, act or business, he or she will inform the Cadastre by requesting certification or an informative document, which will be sent to him or her by any means that allows its recording, in the shortest possible time, and always within the 5 working days following receipt of the request.
Henceforth, no property may be registered for the first time unless it is provided together with the title that justifies it with the descriptive and graphic cadastral certification of the property in terms that totally coincide with the description in the title.
Cadastral reference in administrative documents – The Cadastral Reference must also appear in administrative procedures affecting real estate. The competent body to instruct them will require the holders of rights in rem or rights of real significance over these to provide the documentation accrediting the cadastral reference, unless it can be obtained by telematic procedures. The resolution that ends the procedure will include the cadastral reference.
When the administrative procedure results in modifications to the property, the administrative body must send the Cadastre a copy of the location plans, so that it can issue and communicate, within 5 days, the new cadastral references of the affected property.
The Cadastral Reference in relation to the First Inscription, rectification of registered surface and property boundaries
First registration of a property – The first registration of a property in the Land Registry is carried out by means of the appropriate title for each case, to which must be attached the descriptive and graphic cadastral certification of the same, in terms that totally coincide with the description of the property in said title, from which it also results that the property is registered in favour of the transferor or acquirer.
Although the lack of a Cadastral Reference does not prevent the practice of entries corresponding to registrable documents, no property can be registered for the first time in the Registry if descriptive and graphic cadastral certification of the property is not provided in the Public Deed, in terms that are completely consistent with the description of the property in the said title.
The contribution of the descriptive and graphic cadastral certification is required, but the reference in the document to be registered is not enough. The certification must be totally coincident with the reference and description contained in the public deed, which must transcribe the cadastral reference. For this reason, in this case, the last receipt of the IBI may replace the cadastral certification.
Rectification of the area of a plot.- The expression in the Register of the surface measurement of the property is one of the data, although secondary, that serve for its identification. In the description of the property, reference must be made to its boundaries. When the georeferenced graphic representation of the property is included in the registration, its capacity will be that resulting from this representation, modifying if necessary that resulting from its literary description, which must be notified by the Registrar to the registered rights holders.
The inclusion of the georeferenced graphic representation of the property in the registration is obligatory in all cases of immatriculation, or when land reorganisation operations are carried out. In other cases it is optional and can be requested when carrying out any registrable act or as a specific registry operation for which purpose the procedure provided for in the Mortgage Law, Article 199, must be followed.
Excess capacity that does not exceed 10% of the property can be processed by presenting a descriptive and graphic cadastral certification, provided that the descriptive data from the Registry and Cadastre show that the property covered by the certificate is fully in line with the registered property. There is a correspondence between the graphic representation provided and the literary description of the property, when both refer to essentially the same portion of territory and the differences in capacity, if any, do not exceed 10% of the registered capacity and do not prevent the perfect identification of the registered property or its correct differentiation from neighbouring properties.
In other cases, the file for the rectification of description, surface or boundaries, regulated in Article 201 of the Mortgage Law, must be processed, which is very similar, although with certain specialties, to the file for the immatriculation of properties.
The registration of an excess of capacity can only be configured as the rectification of an erroneous registration data referred to the description of the property registered, so that it must be clear that with such a rectification the area that is now intended to be recorded is the one that should have been reflected at the time because it is actually the one contained in the originally registered boundaries.
Modification of boundaries.- In the case of properties with fixed boundaries or of such a nature that there is no doubt as to their identity, the boundaries may be modified based on the same deed that contains the legal transaction that is the object of the same.
In the case of land with non-fixed boundaries or of such a nature that there are doubts about the identity of the farm, this can be done on the basis of a descriptive and graphic cadastral certification of the farm, provided that, between the description of the same farm in this certification and the one in the Registry, the identity of the farm can be deduced.