EDITION: December 2014 - February 2015

Non-certified registry notes and potencial burdens

By Armin Gutschick y Anja Sämann-Gutschick
Before buying a property, every buyer should check the details related to it at the corresponding Property Registry. As a first step, you can ask for a non-certified note (nota simple). This is solely an informative note and it offers information about the owner of the property and the burdens that could be affecting it.

This document contains basic data of the property: its registry number, location, description, boundaries, measured area of the plot and of the house. It also informs of the names of its owners, how the property was acquired and any burdens it may bear. As well as checking the ownership situation of the property and its description, any potential buyer should pay special attention to the burdens that affect it because, if they are not lifted before the sale, they will prevail and will be passed on to the new owner.

We will now offer a brief description of the most common burdens properties bear:

A mortgage serves to guarantee a loan. If a bank or a physical person (creditor) loans money to the owner of a property (debtor), for example to buy a plot of land, the latter can obtain a morgage over the property in order to guarantee the refund of the loan.

A mortgage is formalized through a public deed that will be signed before a notary by the creditor and the debtor, and then registered at the Property Registry. It is registered for the amount that the property itself responds for. If the debtor cannot refund the loan, the creditor can execute the mortgage and claim the amount that was officially registered.

If the loan is returned according to the agreed terms, the debtor has the right to cancel the mortgage. Often, the loan is not refunded until the property is sold on. For this reason, if there is a mortgage attached to the property, the buyer should clarify how and when the mortgage will be cancelled before signing the sale. Often, the mortgage is lifted by issuing a cancellation deed inmediately after signing the deed of sale.

In order to cancel the mortgage, you must present the cancellation deed at the corresponding Property Registry and pay the registration fees. It could be advisable for the buyer to retain from the sale price the amount of these fees, to ensure that the seller pays for these cancellation costs.

As well as mortgages, a property could be burdened by easement rights (servidumbres). These may also be registered at the Property Registry. An easement is a right to use all or part of the land by another for a specific purpose.  There are many types of easements, such as rights of way or the agreement for constructions not to surpass a certain height. If an easement is registered at the Property Registry, it holds legally before any third party.

Therefore, if you buy a property that has, for example, an easement of access or right of way (servidumbre de paso), you will be obliged to respect this right. If you do not wish to continue offering this easement, you must demand that it is cancelled before you finalize the sale. In practice, this may turn out to be very complicated.

Another common easement is usufruct, which gives the usufructuary the right to enjoy the property that has this burden. They may use the property in the same way as anyone who owns it, while at the same time they are also obliged to maintain it. An usufruct only ends if the usufructuary renounces this right or passes away.

The list of easements we offer in this article is of course by no means complete. In any case, it is very important to seek the advice of a lawyer before buying a property, in order to clarify the burdens it bears and how they can be lifted.•