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By Raymundo Larraín Nesbitt
Lawyer - Abogado
1st March 2020
The short blog post is my follow-up to this one: The (non) importance of a Spanish Title deed – 21st September 2019
Unlike a Title deed, which in truth bears little to no importance, what matters in Spain is who is the registered owner before the Land Registry. I’ll provide a quaint example that will help to explain the important role the Land Registry plays out in Spain.
Back in 2006, when I was still young and idealistic, I worked for an English law firm on behalf of an institutional investor. We were approached by an elderly borrower who wanted to take out a Lifetime Loan against her property on the Costa del Sol. The lady showed us her original Title deed witnessed by a Spanish Notary almost 30 years prior; in principle all seemed good and checked out.
However, on requesting an updated nota simple for her property from the Land Registry, I was shell-shocked. It pans out it was still registered under the name of her developer, the same one that sold her the offplan property almost three decades earlier!
Now, what struck me most was not that it was not under her name, but the fact that her property had not been taken over by some creditor, or even by some beneficiary, of the developer after all these years! Needless to say, we were forced to turn down her loan application.
She had not retained a lawyer at the time, and once she had signed the property at the Notary, she had blissfully entrusted the developer’s lawyer to register her property under her name at the Land Registry; which of course never took place.
The error she made was not to do a follow up and verify that her Title deed had been lodged correctly at the Land Registry under her name as the new owner. To all legal intent and purposes, the developer was very much still the owner three decades on. You may think this is a one-off, a fluke, you’d be sorely mistaken. I tell you it is not, in fact, it is a far more frequent ‘error’ than what most professionals would care to admit.
This whimsical example goes on to show the (great) importance of the Land Registry in Spain. She felt certain her Title deed categorically proved her ownership and even had it stored in a safe! When in fact the reality was her Title deed meant nothing from a legal point of view (wet paper).
That is why I write that in truth a Title deed bears little to no importance in Spain, as opposed to other countries, specifically Anglo-Saxon ones, where it is required to transmit ownership.
In Spain we have a robust two-tier system (Notary and Land Registry) that secures ownership rights and which I personally find very good.
In Spain what matters really is who appears before the Land Registry as the registered owner. For it is this person, and he alone, who can sell it, rent it or dispose of it as he sees fit.
My example explains the Land Registrar’s motto in Spain, “prior in tempore, potior in iure” which roughly translated is first in right, greater in right. Or more colloquially, first come, first served. He who lodges his right first, has the better claim over a property.
Pro-tip: Always verify your name is duly registered at the Land Registry after you buy property in Spain, never take it for granted. You can request from us a nota simple service (Land Registry report) for a testimonial fee in under 24 working hours.
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