EDITION: October - December 2015

Where do the boundaries of my property lay?

By Armin Gutschick & Anja Sämann-Gutschick
In Ibiza, it is frequent to find that a large part of a property of ours is not registered at the Property Registry nor at the Records Office. As well as that, in some cases you cannot determine exactly where the boundaries lay. The owner affected is often not aware of this problem until the sale of the property or when an inheritance takes place. Often, these cases in which there is a discrepancy between the reality of the boundaries or size of the property and what appears in the official papers, end up in court.

In Spain, on the one hand, there is the figure of the Records Office, which is an administrative registry that contains a description of rural and urban real estate, and has offices in the different municipalities. Its main function is to determine the cadastral value of the properties and thus the taxes involved. At the Records Offices, maps of the properties will be deposited, but these give only an approximate idea of the surface of these properties. On the other hand, there is a Property Registry that should offer legal security for the sale and purchase of real estate. However, often the data registered in it does not coincide with what appears in the Records Office. To this we must add that neither the maps nor the information about the measures registered with the Records Office are legally binding. The maps at the Records Office include main houses and additional buildings, such as garages, pools and others, although the reason for detailing existing surfaces is mainly calculating taxes. The more metres that are built upon a piece of land, the higher the taxes on real estate that the Council will collect.

Owners cannot trust either that the data presented regarding their properties will be correctly registered at the Records Office. The sales and purchase deeds are sent to the Records Office, but weeks may go by before the necessary modifications are carried out. When real estate is transferred from one owner to another, the property tax (IBI) for the year in which the transfer is made, which is generally paid at the end of the summer, will still appear in the name of the former owner. The data that appears regarding the surface and boundaries of a property in the Property Registry will not necessarily be accurate either. Often, the details of the owners of neighbouring propertiers, with whom boundaries are shared, are obsolete.
It is expected that the new Mortgage and Records Office Law, which is valid since June 25th 2015, will correct this situation, as it intends to contrast and liken the data that are in the Property Registry and the Records Office. This new law will facilitate data exchange between these two institutions in order to avoid future situations of contradicting information appearing about the same property, or that the boundaries, size and location of a property that is in either of these Registries are not properly identified. This legal novelty could mean an important step forward towards legally valid specifications about location and size of properties in Spain.

However, the Spanish association of expert geometres (AEGEX) is sceptical and doubts that the new law will offer adequate legal security. According to its president, the new law maintains the old system of separation between the Records Offices, Property Registries, notaries and the Public Administration, and thus, cooperation between these institutions will continue to be insufficient and there will be a high degree of legal insecurity. As an example, he points out that the maps that are at the Records Office are not made by professional topographers and that, in practice, it turns out that any map presented by a normal person can be included in the Records Office mapping system. •