Author: David García
What is the meaning of “excess of capacity”?
When a property has a larger surface area than that which is recorded in the Land Registry, we are dealing with a case of excess of capacity.
Why is it important that the actual measurements of the property appear in the Registry?
Because by the principle of public faith in the Registry, it is presumed that what is recorded in the Register is true and that whoever claims otherwise must prove it.
Article 34 of the Mortgage Law
A third party who in good faith acquires for valuable consideration any right from a person who appears in the Register to have the power to transfer it, shall be maintained in his acquisition, once his right has been registered, even if the grantor’s right is subsequently annulled or terminated for reasons not recorded in the Register.
The good faith of the third party is always presumed as long as it is not proved that he knew of the inaccuracy of the Register.
Acquirers free of charge shall enjoy no more protection in the Register than that enjoyed by the grantor or transferor.
Consequently, what is not registered will not have the corresponding legal protection, and will make it considerably more difficult to defend one’s rights.
Furthermore, the principle of accuracy of registration implies that it is presumed that what is established in the Land Register corresponds to reality and that whoever opposes this will be obliged to prove the contrary.
Article 38 of the Mortgage Act
For all legal purposes it shall be presumed that the rights in rem entered in the Register exist and belong to their owner in the manner determined by the respective entry. Likewise, it shall be presumed that whoever has registered ownership of the real estate or rights in rem has possession of the same.
Consequences of overlapping
One of the situations in which an overage can have undesirable consequences is in the valuation of the property when applying for a mortgage. Even if it is discovered that the surface area of the property is greater than that which appears in the Land Registry, the valuation will only be carried out on the registered extension, as this is the one that will have value in the eyes of the creditors.
Why do these discrepancies exist?
There may be several reasons for this difference between the registered and actual measurements. There may have been an error in the measurement, for example:
1.- Because it was carried out many years ago and there were no tools as precise as nowadays.
2.- It may be because the boundaries between the properties were not well defined and the measurement was not carried out properly at the time.
3.- And thirdly, the excess of space may have its origin in the fact that illegal urban alterations have been carried out, modifying the boundaries, either by illegitimately invading someone else’s property or by carrying out businesses such as, for example, a covert sale and purchase to avoid taxes or for other illicit purposes. See How to regain possession of an area taken from you.
Solutions to over-capacity
The most advisable solution to a situation in which our property has a larger surface area than that recorded in the Land Registry is to modify its inscription to bring it into line with reality.
The procedure to do so is regulated in article 200 (and following) of the Mortgage Law.
Article 201 of the Mortgage Act
1. The proceedings to rectify the description, surface area or boundaries of any registered property shall be processed in accordance with the rules laid down in Article 203, with the following special features:
a) It may be initiated by the registered owner of the whole or of an undivided share in the domain, or of any right in rem, by providing the Notary with the registered description of the property and its updated description, assuring under his responsibility that the differences between the two are due exclusively to descriptive errors in the Register and not to the conclusion of transfer business or in general to any modification, not registered, of the legal situation of the registered property.
b) The interested party must also provide the information available on the identity and address of the owners of the domain and other rights in rem on the property itself and on the adjoining properties, both registered and cadastral, providing, in all cases, the cadastral certificate describing the property or properties that are the object of the file. Furthermore, in the event that the promoter states that the cadastral graphic representation does not coincide with the requested rectification, he/she must provide a georeferenced graphic representation of the same.
c) The provisions of paragraph c) of Rule Two, paragraphs d) and e) of Rule Five and the last paragraph of Rule Six of Article 203 shall not be applicable to the file regulated in this Article. As regards Rule Three, the content of the certifications shall be understood to be limited to the rectification whose registration is requested.
d) In the event that an alternative graphic representation has been provided, the Notary shall proceed in accordance with the provisions of the second paragraph of letter c) of paragraph 2 of Article 18 of the revised text of the Law on Real Estate Cadastre.
e) The proceedings regulated in the previous sections may not be processed for the descriptive rectification of buildings, properties or elements forming part of any building under horizontal division or properties resulting from administrative proceedings for the reorganisation of ownership, expropriation or demarcation. In such cases, the rectification of the original title or the prior processing of the corresponding administrative procedure will be necessary.
If the Registrar, in view of the circumstances of the file and the content of the history of the properties in the Register, has well-founded doubts as to the possibility that the file for rectification of the registration description conceals a transfer transaction or operations for modification of the mortgage entity, he will proceed to suspend the registration requested, stating the reasons on which such doubts are based.
How can it be corrected?
The way to register in the Land Registry the real dimensions of our property will vary according to the magnitude of the existing discrepancy.
If the difference between the two measurements does not exceed 5%, it can be corrected by means of a simple manifestation of the interested parties and a cadastral certification will not be necessary.
Likewise, if the discrepancy is less than 10% and, in addition, there is a coincidence between the registered property and that contained in the cadastral certification, the provision of a descriptive and graphic cadastral certification will be sufficient to correct the actual measurement.
In cases in which the discrepancy between the size of our property and the one registered in the Land Registry is greater than these percentages, it will be necessary to process a domain dossier to rectify it.
The ownership dossier
It will be processed before a notary, who must be provided with information on the identity and address of those who have any rights, that is to say, whether they are owners or have other rights, both of the property we wish to correct the excess size of and of the adjoining properties.
Article 203 of the Mortgage Law
1. The ownership proceedings for the immatriculation of properties which are not registered in the Land Registry in favour of any person shall be processed subject to the following rules:
One. The proceedings must be carried out before a Notary Public authorised to act in the notarial district where the property is located or in any of the notarial districts adjoining said district. If the property is located in the territory corresponding to two or more different notarial districts, the file may be processed before a Notary in any of these districts or in any of their respective adjoining districts. A single file may be opened for several properties provided that they are located in the territory of the same Register, even if some of them are partially located in an adjoining mortgage district, provided that the majority of their surface area is located in that Register.
A descriptive and graphic certification of the property whose registration is to be corrected must also be provided. In the event that the cadastral graphic representation does not coincide with the reality of our property, a georeferenced graphic representation of the property must also be provided.
If you need to rectify the registration of real estate, please contact us so that we can advise you and accompany you throughout the whole process.
