The Spanish Land Registry
By Armin Gutschick & Anja Sämann-Gutschick
In addition to the notary, the head of the land registry office (“registrador”) provides the legal basis that is crucial for the purchase of a property in Spain. The notary records the declarations of the parties, and the registrador enters them in the land register. The registrador is not a civil servant. He is empowered to carry out certain official functions, but just like the notary, he is a private citizen who charges for his work. In a tourist area like the Balearic Islands there are many property transfers, so a registrador can make quite a bit of money. The independence of the registrador means that he is not restricted by government office hours, so is free to work when he wishes to. The best known registrador is the former Spanish Prime Minister Mariano Rajoy, who at the end of his political career resumed his remunerative work as a registrador in Alicante and later in Madrid.
There are four different land registry offices in Ibiza: Registry number 1 covers a large part of Ibiza Town; Registry number 2 covers the municipality of San José; Registry number 3 covers the municipalities of Sta. Eulalia and San Juan; and Registry number 4 is responsible for the municipality of San Antonio and Formentera. The offices for all four Land Registries are located in Ibiza Town, and are open to the public. Numbers 1 and 3 are at Ignacio Wallis 31, on the 6th floor. Number 2 is at Calle Aragon 106, and Number 4 can be found at Calle de Baleares 8. About 15 years ago the two original Registry Offices were divided into four land registers, and as a result Registry no. 2 retained responsibility for the Figueretas district of Ibiza.
Although the areas of work and responsibility of notaries and the registrador are clearly separated from each other, there are always points at which the two intersect. Problems can arise because the registrador is not obligated to enter every document recorded by the notary.
He is required by law to check the content and legal aspects of all documents submitted to him for registration. If he does not agree with part of a document, for either legal reasons or a mistake in the form, he can refuse to enter it in the Register.
The registrador then writes a note (“calificación negativa”, Art. 18 LH), which is sent to both the applicant and the notary who authenticated the document. In this note of rejection the registrador states the reasons for the refusal of registration. The error in the deed can either be corrected easily if it is something simple (e.g. by submitting an NIE number), or the notary will need to create a new deed in the case of serious deficiencies. This deed may take the form of a supplementary deed (“escritura complementaria”) or a deed of rectification (“escritura de rectificación”), as the case may be. In either case, the deficiencies found by the registrar are corrected, and the deed can then be successfully registered in the land register. It should be noted that the negative comment by the registrador leads to an interruption in the prior notice in the land register. If the deed is not changed within this period, then the priority notice (“asiento de presentación”) automatically expires after 60 days in the land register, and a bona fide third party can have unhindered access to the property as it is unchanged in the land register.A negative note like this is more common in practice than you might think.
So in cases where there is any doubt, the lawyer involved should clarify everything with the notary before the nota- rization. He must make sure that there is nothing in the deed that would cause objections by the registrador, which could prevent entry in the land register.