Does the simple registry note provide all the necessary information?
By Armin Gutschick & Anja Sämann-Gutschick
In Spain anyone is free to consult the land register on the website www.registradores.org. You can find the details of the property you are interested in by entering the first and last names of the owner. The land registry office will even provide you with an English version of the extract for a small additional charge. Payment can be made by credit card or PayPal. However, no plans or documents are actually kept in the Spanish land registry. Only the essential content of the original documents are transcribed in the land register. So what you see in an extract from the land register (“nota simple”) is the currently entered square footage of the buildings. The owner has unilaterally registered these buildings by signing a new construction declaration (declaracion de obranueva) in front of a notary. This declaration describes the structures in detail.
However, in many cases an analysis of a simple extract from the land register does not give you sufficient information. A prospective buyer cannot confirm that the structures are legal simply by looking at the land register. That is because there are cases in which structures that were illegally built without a permit are allowed to be entered in the land register because they are “grandfathered”. This means that the structure was built before the current laws came into effect, and the Spanish government allowed those structures to remain, despite noncompliance with current laws. This type of structure can be entered in the land registry when the owner obtains a certificate from an architect (certificado de antigüedad) that describes the components and their age, which must be at least eight years. But there was never a building permit nor a building inspection issued by the municipality, so the structure is not legal from their point of view.
To clear up any misconception: Entering a “grandfathered” structure in the land register does not legalize the property - it remains illegal and is not in compliance with current building regulations
. In other words, these are structures (buildings) that are outside the applicable building standards ("fuera de ordenación"), but are tolerated by the administration. The resulting consequences can be serious. If the buyer later wants to apply for a building permit for the property - even if it is only for a small renovation - the municipality can refuse the permit as long as the legality of the entire property is not proven. This is stipulated by law in Art. 129.2 B of the Balearic Planning Law (Ley 12/2017 de Urbanismo de las Islas Baleares), which says that on buildings or structures that were built without planning permission, and are thus outside the applicable building standards (“fuera de ordenación”), no construction work may be carried out.
It is therefore necessary before purchasing to check the basis upon which all buildings were registered. For this purpose, the seller must submit the new building declaration, with which the entry of the square meters in the land registry was effected. From this it can be seen whether the entry was made on the basis of a municipal building permit and acceptance, or simply on the basis of an "age certificate" from an architect, and thus only covered by a grandfathering.
Unfortunately, the law does not require the seller to point out to the buyer whether parts of the building were not built legally- despite the fact that they are entered in the land register.
This is one reason why it is important for a buyer to engage a lawyer to review all of the documents before purchasing a property. Technically the parties are obliged to cooperate when buying a property in Spain, but it is advisable to take your own precautions.