I am sure many readers will have come across situations in Spain where the surface area of a
property registered at the Land Registry does not correspond with the reality. Up until fairly recently it was common practice, particularly in rural areas, to reduce the surface area of the property in the deed, when transferring the property, in order to pay less tax on the transfer. This has resulted in a large amount of properties, extended across the country, which are incorrectly registered in the Land Registry.
This detail is something that must be seriously considered when buying property in Spain.
When buying property in Spain
If you are considering purchasing a property in Spain, this is one of the many characteristics that should be thoroughly investigated before buying, to avoid any unpleasant and costly surprises down the line.
Correctly checking a property’s situation with the Land Registry requires a thorough investigation, not only into Land Registry records, but also rates records (Catastro), provincial and local government records, as well as obtaining topographic plans of the property.
Unfortunately, many owners come to discover this type of discrepancy after purchasing, sometimes even years after buying. Prolonging this irregularity can not only create difficulties for you in a future sale of the property, but can also result in the owners of bordering properties obtaining rights to part of your property over time.
In this case the solutions available are the following:
- Declaration of common knowledge (Acta de notoriedad or Acta de presencia y notoriedad): This involves an extensive process, overseen by the Notary, including sworn affidavits of the owner, sworn affidavits of interested parties, locating anyone with a legitimate interest, visits to the property by the Notary, newspaper publishings, etc.
- Ownership proceedings (Expediente de dominio): If, for whatever reason, the Notary should not consider the ownership of the missing meters sufficiently proven to his satisfaction in the first instance, judicial ownership proceedings will have to be initiated by the owner.
Once either of these options result in a favourable decision, your new title will then be able to be registered with the Land Registry.
It is very important that you are fully aware of the legal situation of any property you are contemplating buying in Spain before entering into any agreement, as the result can be expensive and protracted. This is why it is why professional legal advice in these matters is absolutely essential.
In addition, if you find yourself with this difficulty, the procedures outlined above should not be attempted without seeking the appropriate legal advice, as any mistake in these types of proceedings can result in serious consequences for you ownership rights.
Gabriella Mary Trussler
4408 Ilustre Colegio de Abogados de Almería