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English speaking lawyers in Malaga (Andalucia / Costa del Sol) specialized in urban & rustic property law

Tagged property registry

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CADASTRAL REGISTER: TO BE REGISTERED, THE QUESTION IS CLEAR

Cadastre registration Spanish properties

Cadastre registration Spanish properties

The cadastre is a compulsory administrative register which depends on the Ministry of Finance. It keeps the description of rural and urban properties as well as properties with special features. This register has nothing to do with the Land Register, where registrations are voluntary and legally prevails over the Cadastre.

Cadastral registration by property owners is compulsory, as provided by Article 11 of Spanish cadastral law Ley del Catastro Inmobiliario; that is, title holders to the properties shall declare before the Cadastre Office any variation or modification as for example: conveyance, new constructions, land partitions and additions and any other necessary information so that cadastral descriptions of properties are in accordance with the facts.

Consequently, owners’ obligation to adapting the physical reality of the property to the cadastral facts is clear.

Articles 70 and 71 of the Spanish law Ley del Catastro set out the rules on infringements and penalties, so that “failing to submit declarations, submit them after deadlines or submitting false, incomplete or incorrect declarations” may be considered an infringement punishable by a fine from 60 to 6,000 Euros. To date, we have no evidence that the Cadastral Register is penalizing owners for failing to submit the necessary declarations, although these are not submitted.

The problem that we have noted is that the Cadastral Government Office in Malaga refuses to accept modifications on properties built on non-developable lands and requested by owners or their legal representatives, despite it is deemed that the documents legally required has been submitted for these proceedings. We reiterate that the Cadastre is a compulsory register and as a result it is important to be taken into account.

As far as we understand, the Cadastre systematically refuses some variations and modification on non-developable lands; consequently, it is requested additional documentation which we consider to be unnecessary and should not be demanded according to Spanish law. In view of this situation, which we understand that is not applicable to law, our law firm has filed complaint actions against different administrative proceedings, which are pending to be resolved by the Economic Administrative Court of Malaga.

If owners are obliged to declare their property modifications or variations before the Cadastral Register Office and their legal documents are provided, what is their responsibility if the Cadastre denies their request or asks for further documentation that owners do not have?

From our point of view, the fact of requesting the cadastral variation or modification providing the necessary documentation should exempt owners from any infringement imposed by the Cadastral Register, since they did their best to adapt the physical reality of their property to the cadastral facts.

On the other hand, the Minister of Finance approved last year the cadastral regularization procedure 2013-2016, by which the Real Estate Cadastre intents to incorporate ex-officio urban and rural properties with constructions, as well as any variations of their features, so that these properties are recorded in the Cadastral Register and the Spanish property tax IBI may be collected.

In Malaga, just a few municipalities has acceded to this procedure, by which owners are requested the payment of a 60 Euros fee to carry out this regularization, although it is probable that other municipalities also accede to this procedure in the following years.

To sum up, and despite the existing difficulties to register in the Cadastre some modifications or variations, we advise owners to check if their property is correctly registered in the Cadastre, so that they may request before this register office the necessary modifications and variations to adapt the physical reality of their property to the cadastral facts. As a result of this action, they will avert potential problems.

 

Author: Gustavo Calero Monereo, C&D Solicitors (Torrox-Málaga)

OBTAINING THE FIRST OCCUPATION LICENSE

We have recently known, through our clients’ consultations, of the situation that most of the owners of La Axarquía area suffer, which comes from the lack of a License of First Occupation on their properties, particularly, regarding those problems with contract the supplies, such as the electricity supply for their first time or for its restoration, after being cut off by the electricity company (i.e. end of construction site temporary power).

 

The License of First Occupation is a certificate issued by the town hall that confirms that a newly-built property fully complies with all planning and building regulations, and is ready to be used as a dwelling. It also confirms the compliance with all Health, Safety, Planning and Construction laws, and that the property has been fully completed, with no outstanding works. Each newly built dwelling will have an individual License of First Occupation. License of First Occupation only applies to newly-built properties as the L.F.O. is the original authorization to use them as a dwelling.

Granting a License of First Occupation certifies that the developer has built the dwelling fully complying with the original Town Hall’s Building License, as well as complying with all Planning laws.

The License of First Occupation is required to have access to the official supplies (water, electricity, gas,…). Spanish law requires the granting of the License of First Occupation to set up any utility contract for the property. The utility companies are required by Law to check for a License of First Occupation before connecting a newly-built property.

It is always advisable to complete the purchase with a valid License of First Occupation (LFO) in place, even if it is not illegal to complete at the Notary office without a License of First Occupation. In other words, the property purchase completion before a Spanish Notary public without a LFO is legal in Spain, and the property can be lodged under your name at the Land Registry records. However, it is not legal to “live” in a property without the License of First Occupation. This is the reason because not having it will prevent you from having access to water and electricity supplies for the property in order to get them connected.

Properties without LFO can be bought, sold and registered at the Land Registry. So it is not illegal to sell a property without LFO. If you own a newly-built property that was not issued with the License of First Occupation you might have trouble selling it as the potential buyers may seek for a steep discount because of this matter.

The information concerning the LFO given in this post may have to be understood as a benchmark to all those new built properties according to a building license previously obtained and complying with all Planning laws. If this building license was not given, if it was not according with Planning laws, or, in the event that the works carried out did not adhere to the building plan, we will be in another different situation, and the way to get access to these supplies would be different as well. But this is an issue which will be analyzed in a further post, taking into consideration the new measures introduced by the called new “Decree of legalization”, approved by the Andalusian Parliament last 10th of January, in this sense, which is not in force yet.

 

Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

 

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ADVICES FOR OWNERS OF NON-REGISTERED HOMES IN THE LAND REGISTRY

The possibility of registration in the Land Registry of constructions without building permits after four years of completion, is provided by a State regulation—Spanish Royal Decree Real Decreto 1093/1997 of 7th of July, Section 52 provides this possibility, as well as the following requirements for this registration: 1) proceedings of town planning discipline shall not appear in the Land Registry against the construction; 2) the time fixed by law shall have been elapsed in order to “tackle” this infraction through the administrative procedure and 3) certification of the year of completion of the construction.

Thanks to the above mentioned Section of the Royal Decree, thousands of constructions have been registered in the Land Registry, although they did not have the building permits or the constructions did not comply with the conditions of the building permits.

This Section has not been modified and is still in force, however some elements has been incorporated to increase the requirements demanded by the Land Registry offices and to “toughen” the requirements for the admission of this registration, as for example:

1) Amendment of Section 20.4 of the Spanish Land Law which refers to the declarations of new buildings and incorporates a new requirement for its registration in the Land Registry—the submission of a certificate from the city council stating the fuera de ordenación (out of ordination) condition for this construction.

2) As a result of the approval of the new regulation Reglamento de Disciplina Urbanística(town planning discipline regulation) by the Junta de Andalucía Regional Government in May 2010, pressure and control have been increased above these constructions located in non-developable (non-urbanizable) lands. The Junta de Andalucía have notified the Directorate General for Registries and Public Notaries, so that they demand new obligations for the registration of declarations of new buildings, as for example, the submission of a certificate from the city council, so that the Registry record the “fuera de ordenación” condition (out of ordination) or the “asimilado a fuera de ordination” condition (assimilated to out of ordination).

3) Some Land Registry offices have begun to demand the submission of this certificate from the city council as an essential requirement for the registration of the declarations of new buildings.

 

What do all these changes mean for owners who want to register their home?

In the event that in the future the Land Registry requires owners the submission of this certificate from the city council to register their home, swimming-pool, garage or any other construction in their property, these below may be the consequences:

1) Increase of the economic costs for the declaration of the new building, because some city councils are approving ordinances for the payment of fees for obtaining it, as they need financial resources; in some cases, these costs may range between EUR 2,000-5,000, depending on the square meters of the property.

2) As any other application to city councils, this procedure would be slow and may imply several months until obtaining the certificate; in case owners need to obtain the declaration of new building urgently because of a sale, this period of time may become an important handicap.

3) The fact of recording in the Land Registry the fuera de ordenación” (out of ordination) condition or asimilado a fuera de ordenación” (assimilated to out of ordination) condition on their property, implies the documentary evidence of some limitations, which may affect the sale price when transferring the property to a prospective buyer. It is also worth mentioning that the prospective buyer may demand a discount in a possible transaction regarding this fact.

To sum up, in the event that the Registry offices toughen in the future the requirements to register any construction in the Land Registry and the resulting increase of the costs and period of time for the procedure completion, we advise you to take advantage of the current situation and execute the Public Deed of Declaration of New Building of your home as soon as possible and submit it to the Land Registry to avoid any problem in the future.

 

 

Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

 

BIG INCREASE IN THE LIFETIME MORTGAGE DEMAND

Lifetime Mortgage (reverse mortgage)

According to the report published by “Optima Mayores” Advisers, the demand of lifetime mortgages has increased to 17% (19,900 applications) until April in comparison to last year same four-month period.

This increase in the lifetime mortgage demand matches the senior citizens’ growing needs to obtain an income and the better knowledge of this product in Spain, where it was first launched in 2004. Spanish Senior citizens’ pensions are at 40% below the European average, what indicates their necessity to face their retirement financing with a peace of mind. Regarding British senior citizens, the Euro and Pound Sterling exchange rate fluctuation has also reduce their earnings.

What is a lifetime mortgage?

A lifetime mortgage is a financial product that consists of a loan for seniors aged 65 or older or dependents, secured against the home where they live. They retain ownership of their home until they die, when their inheritors shall repay the loan or sale the property.

The maximum loan to be granted is based on a percentage of the property appraisal value. Then, the homeowner may receive a regular fixed amount or a lump sum payment.

Who qualifies for a lifetime mortgage?

The following requirements shall be fulfilled to qualify for a lifetime mortgage:

-        The applicant or the selected beneficiaries shall be aged 65 or older; or otherwise, they shall be individuals with high to severe dependency levels.

-        The borrower shall receive the money from the loan in regular fixed amounts or a lump sum payment (incomes).

-        Only the creditor (banks or savings banks) is entitled to demand the repayment of the debt and the mortgage foreclosure when the borrower dies, or if provided in the agreement conditions—when the last of the borrower’s beneficiaries die. The mortgaged property shall be valued and insured according to the Spanish legislation in force.

These are the official requirements to be protected by the Spanish legislation regulating this type of loans and to be entitled to the tax advantages established by this legislation.

Clients and banks may freely agree about lifetime mortgage transactions which include a varied set of terms and conditions; consequently, a professional advisor’s counselling in this proceeding is a determining factor for the good end of the agreement to enjoy the best advantages and conditions available.

Spanish legislation regulating lifetime mortgages

In Spain, this type of mortgages are regulated by Law 41 of 7th of December 2007—Mortgage Market Reform legislation.  This Law provides that the lending institution is obliged to offer an independent advice to individuals, so that the consumers’ rights are preserved and the economic and financial conditions suit their needs. This counselling and negotiation tasks are normally provided by specialised lawyers and companies offering this service to private customers.

If you are thinking about a mortgage which best suits your economic needs, take your time and ask for advice to specialised lawyers. They will ensure the best deal for you.

 

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Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

 

PROPERTY LAW AND THE CADASTRE OFFICE IN SPAIN

Although little by little the situation is changing in an important way for the real estate owners, this can not be used to comply with the obligation established in the Real Legislative Decree 1/2004, of 5 of March, in that the text is approved refunded of the Law of the real estate land registry, of recording to its name the property that it possesses or the one that it has just acquired, whether by means of buying and selling, succession or any medium, or to record  any physical change that be produced in this, whether group, segregation, new work...etc.

This “bad” custom nowadays can have quite serious consequences in the enjoyment of the right to the property on the part of any person that possesses good real estate in Spain.

Article 1 in their first section of indexed norm is that to regulate the land registry defines the same one as “...a registration administrative clerk of the Treasury Department in which the goods are described urban, rustic real estate and of special characteristics just as they are defined in this Law”. Subsequently in its second section it exposes that this Law is applied in ah the Spanish territory.

Any owner of a dwelling or plot, or both it should be affirmed that the details of the property coincidence with the physical reality of the same or with the title of property, normally Public Deeds for three important motives from a practical point of view.

1.- Because the Real Decree indexed at the start of this article and that to regulate the real estate and registry, collected explicitly in their article 70, establishes the classification of simple tax infraction, the lack of presentation statements done, does not perform in a time limit and the ones that be false or inexact, that is to say that the people that acquire a good real estate, or those being the owners segregate, they group their plot, or they expand the metres of their dwelling, but they declare said alterations or modifications in the land registry through the official forms, can be guilty persons with a fine that oscillates between 60.00 and 6,000.00 euros according to the circumstances. That is to say, since it is an obligation imposed by normal ranks of Law, the obligation to declare in the land registry any variation or modification of the property on the part of its holder, if it does not comply the same, there can be sanction.

2.- Because upon being a public registration, the land registry that incorporates the plans of each one of the plots or properties of each municipality with inclusion of the sensitive data of the same, without a person with a plot or property does not have the same one recorded in the land registry, or the same one presents some error in its inscription or, still being collected in the land registry, is not to it’s name and did not carry out the corresponding change of property ownership, can be found with the unpleasant surprise that its neighbour, for example, recorded in the land registry its property or carries out some modification of the same that can affect him to its boundaries and, if its property does not appear as its name in the land registry or the same not even appears recorded as we have commented, the and registry wit not be able to notify him that its neighbour is going to proceed to carry out a change and that you have a period of time to allege what estimates convenience. That is to say, if that property modification of its neighbour affects him in the use and enjoyment of his property, you will not be able to allege anything in defence of his interests and, possibly, its neighbour will be able to carry out that alteration in the and registry with the damages that this can cause him in his property. And all because you did not do what the law obliges when you bought the property or when you carried out the modifications in the same one that is perfectly recorded in the land registry the details of its property.

3.- In any operation of buying and selling of good real estate, the notaries are obliged to request descriptive property certificates and graphics since said information can obtain by telematic way. In the supposed one that they cannot contribute that document because there exists some problem in the and registry with the buying and selling of said property, they have to make it to be evident in the Public Deeds and, although that lack of contribution of the property reference by means of the certificate does not impede that the notaries authorize said Deed, neither does it impede the inscription in the Registration of the Property of the same, except in supposed punctuality, the problems that can arise for the good of the operation should be keep in mind, since that the buyer of said real estate before the warning of the notary have doubts of the situation of said property and this can cause the break, or at least the complication, of said operation of buying and selling. It is kept in mind that, although the Public Deeds be the reliable document of property, the land registry is used to being but exact with the existing reality in the real estate, since it incorporates in their fiat detailed database that they be brought up to date from time to time and in which the changes are incorporated that themselves are not collected in the titles so much as relating to the dimensions of the plot and boundaries, as in the constructions that be carry out in the same.

In conclusion, i would like to emphasize that the correct inscription in the land registry of any property has as main consequence in the legal security of the proprietary person of the same and of the person that can acquire it in the future, as well as of administrative agencies. If you have a property real estate in Spain or are thinking to acquire one, be sure that the same one found recorded in the land registry is with at the most important date; situation, ownership, extension and boundaries.

 

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

 

Contact

C&D Solicitors S.L.P.
Calle La Noria , Edif. Recreo II, 1-15
29793 Torróx-Costa (Málaga), Spain
(Entrance at backside of building)

T/F: +34 - 952 532 582
M: +34 - 677 875 078 (Gustavo Calero Monereo)
M: +34 - 659 218 470 (Francisco Delgado Montilla)

Open: Mon, Wed, Fri: 08:30 - 15:30
Tue, Thu: 09:30 - 14:30 & 16:30 - 19:30